Zalman Melnik and Lea Melnik - Page 46

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               In Samuel v. Commissioner, 306 F.2d at 687, the Court of               
          Appeals for the First Circuit summarized the essential substance            
          of a true annuity transaction as follows:                                   
               Inherent in the concept of an annuity is a transfer of                 
               cash or property from one party to another in return                   
               for a promise to pay a specific periodic sum for a                     
               stipulated time interval.  As such, an annuity contract                
               gives rise to a debtor-creditor relationship between                   
               the transferee and transferor.  * * *  [O]nce the                      
               annuitant has transferred the cash or property to the                  
               obligor and has received his contractual right to                      
               periodic payments, he is unconcerned with the ultimate                 
               disposition of the property transferred once it is in                  
               the obligor’s hands.  * * *                                            
          In this case, the Melniks treated the stock sale proceeds that              
          should have been invested to preserve and ensure Clend’s ability            
          to pay the annuities as a personal line of credit, which they               
          used freely to finance real estate investments in the United                
          States.  They did not act like annuitants whose only claim was to           
          periodic payments beginning sometime in the future.  Although               
          Bermuda Trust purported to be an independent trustee of the                 
          foreign trusts that owned and controlled Clend, the entity                  
          obligated to make the annuity payments, Bermuda Trust not only              
          gave the Melniks virtually unlimited access to Clend’s assets but           
          failed to take action when the Melniks defaulted on the $900,000            
          loans.                                                                      
               All of the facts summarized above undermine the credibility            
          of petitioners’ case43 and contribute to our conclusion that                

               43Petitioners argue that, because respondent did not call              
                                                             (continued...)           


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