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and full consideration in money or money’s worth under section
2038(a)(1).
Power To Alter, Amend, Revoke, or Terminate
the Enjoyment of the Property Transferred or
Relinquishment of Any Such Power During the
Three-Year Period Ending on the Date of Death
Power To Alter, Amend, Revoke, or Terminate
the Enjoyment of the Property Transferred
It is the position of decedent’s estate that at no time was
the enjoyment of the respective 16-percent interests that Ms.
Mirowski gave to her daughters’ trusts subject to change through
the exercise of a power by Ms. Mirowski to alter, amend, revoke,
or terminate.
Respondent counters that after Ms. Mirowski’s respective
gifts of 16-percent interests in her daughters’ trusts,
With the approval of the other interest holders (the
daughters),[72] decedent had the authority to dispose of
assets in other than the ordinary course of business.
[MFV’s operating agreement] Section 5.1.3.1. As the
holder of a majority of the MFV interests, decedent
alone held the power to determine the timing of the
distribution of the capital transaction proceeds.
[MFV’s operating agreement] Section 4.5.1. Thus, after
the transfer of the three 16 percent interests,
decedent held the power, in conjunction with her
daughters, to affect the time or manner of enjoyment of
the transferred property within the meaning of section
2038(a)(1), with the result that despite the gifts, the
assets transferred to MFV are includible in the gross
estate. As decedent retained this power until her
death, there is no need to discuss the application of
the three-year rule * * * of section * * * 2038[(a)(1)]
* * *.
72We reject here, as we did above, respondent’s contention
that after Ms. Mirowski’s gifts her daughters, and not her
daughters’ trusts, were members of MFV.
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Last modified: March 27, 2008