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we further find that section 4.5.1 of MFV’s operating agreement
did not give Ms. Mirowski as the majority percentage member of
MFV (or as MFV’s general manager) the authority to determine the
timing and the amount of distributions upon the liquidation and
dissolution of MFV.63
On the record before us, we find that at the time of Ms.
Mirowski’s gifts and at the time of her death there was no
express agreement in MFV’s operating agreement (or elsewhere)
that Ms. Mirowski retain the possession or the enjoyment of, or
the right to the income from, the respective 16-percent interests
in MFV that she gave to her daughters’ trusts.
62(...continued)
287 (4th Cir. 2001). We find nothing in the record that shows
that Ms. Mirowski intended to establish, or would have estab-
lished, the reserves in question in violation of those duties.
On the record before us, we conclude that Ms. Mirowski’s author-
ity as MFV’s general manager to establish reserves as specified
in MFV’s operating agreement did not give Ms. Mirowski an inter-
est or a right described in sec. 2036(a)(1) (or sec. 2036(a)(2)).
63Section 4.4.1 of MFV’s operating agreement provides that
if MFV were to be liquidated, its assets
shall be distributed to the Interest Holders in accor-
dance with the balances in their respective Capital
Accounts, after taking into account the allocations of
Profit or Loss pursuant to Section 4.1 or 4.2, if any,
and distributions, if any, of cash or property, if any,
pursuant to Sections 4.1 and 4.2.3 [of MFV’s operating
agreement].
We conclude that section 4.5.1 of MFV’s operating agreement
merely served as a backstop to the other sections of MFV’s
operating agreement that controlled the timing and the amount of
distributions by MFV.
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