- 99 -
opinion’s finding that decedent and ISA Trust transferred their
respective shares of Empak stock to WCB Holdings in order to
position Empak for a liquidity event9 but also decedent’s
fiduciary duties as Empak’s CEO and the sole member of its board
of directors. Depleting Empak’s assets by causing Empak to
redeem the Empak stock owned by WCB Holdings in order to be able
to diversify BFLP’s assets through a redemption by WCB Holdings
of the WCB Holdings class B membership units owned by BFLP would
not have been consistent with the objective of positioning Empak
for a liquidity event. Indeed, given that objective, it would
have been, at best, bad business judgment on the part of decedent
and a misconception by him of what was involved in positioning
Empak for a liquidity event if he had decided to cause Empak to
redeem the Empak stock owned by WCB Holdings in order to effect a
diversification of BFLP’s assets. Moreover, irrespective of the
objective to position Empak for a liquidity event, any decision
by decedent to deplete Empak’s assets by causing Empak to redeem
the Empak stock owned by WCB Holdings in order to effect such a
diversification would have been, at worst, a breach by decedent
of his fiduciary duties as Empak’s CEO and the sole member of its
board of directors. Any such decision by decedent might have
9That finding was critical to the majority opinion’s
holding that decedent’s transfer to WCB Holdings of his Empak
stock was a bona fide sale for an adequate and full consideration
in money or money’s worth within the meaning of sec. 2036(a).
Page: Previous 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 NextLast modified: May 25, 2011