                          T.C. Memo. 2009-66



                       UNITED STATES TAX COURT



     ESTATE OF ERMA V. JORGENSEN, DECEASED, JERRY LOU DAVIS,
     EXECUTRIX, AND JERRY LOU DAVIS AND GERALD R. JORGENSEN,
                    CO-TRUSTEES, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21936-06.              Filed March 26, 2009.




     John F. Ramsbacher, John W. Prokey, and Dennis I. Leonard,

for petitioner.

     Matthew A. Mendizabal, Chong S. Hong, and Jeffrey L.

Heinkel, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:     Respondent determined a $796,954 Federal

estate tax deficiency against the Estate of Erma V. Jorgensen

(the estate).    After concessions the issues for decision are:
                                 -2-

(1) Whether the values of the assets Ms. Jorgensen transferred to

two family limited partnerships are included in the value of her

gross estate under section 2036(a); and (2) whether the estate is

entitled to equitable recoupment.1

                          FINDINGS OF FACT

     Many of the facts have been stipulated and are so found.

The stipulations of facts and the exhibits attached thereto are

incorporated herein by this reference.     Ms. Jorgensen was a

resident of California when she died testate on April 25, 2002,

and her will was probated in that State.     The estate acts through

its executrix, Jerry Lou Davis (Jerry Lou), and through Jerry Lou

and Gerald R. Jorgensen, Jr. (Gerald), as cotrustees of Ms.

Jorgensen’s trust.    Jerry Lou, Ms. Jorgensen’s daughter, resided

in California when the petition was filed.    Gerald, Ms.

Jorgensen’s son, resided in Nebraska when the petition was filed.

     Ms. Jorgensen was born in 1914.   She earned a college degree

from Luther College, after which she worked as a school teacher

for about 10 years.   During that time she met, fell in love with,

and married Gerald Jorgensen, who later became Colonel Jorgensen

of the U.S. Air Force.   As a young man Colonel Jorgensen put

himself through college and law school at the University of


     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code (Code), as in effect on the date of Ms.
Jorgensen’s death. Rule references are to the Tax Court Rules of
Practice and Procedure. Amounts are rounded to the nearest
dollar.
                                 -3-

Nebraska.    At the onset of World War II he joined the Air Force,

where he became a highly decorated bomber pilot seeing active

combat in both World War II and the Korean War.

     After Colonel Jorgensen returned from the Second World War,

he and Ms. Jorgensen started a family.    Ms. Jorgensen left her

job and became a full-time mother and housewife.    Colonel

Jorgensen took over responsibility for the family’s financial

matters.    When Colonel Jorgensen stopped flying, he joined the

Judge Advocate General’s office as an attorney.    Later he served

with the diplomatic corps of the Air Force in Ethiopia and

Yugoslavia.    Colonel Jorgensen’s 30-year career in the Air Force

entitled him to a pension and provided Ms. Jorgensen with

survivor’s benefits.    Upon retiring from the Air Force Colonel

Jorgensen served as an aide to U.S. Congressman Charles Thone.

This entitled Colonel Jorgensen to a second pension and also

provided Ms. Jorgensen with survivor’s benefits.

     Having come of age during the Great Depression, Colonel and

Ms. Jorgensen (sometimes, the Jorgensens) were frugal.    They

abhorred debt and saved as much as they could.    Colonel Jorgensen

was a knowledgeable investor, and over the years the couple’s

portfolio of marketable securities grew to over $2 million.

Colonel and Ms. Jorgensen’s investments consisted primarily of

marketable securities; i.e, stocks and bonds yielding cash

dividends and interest.    In 1992 Colonel Jorgensen developed a
                                  -4-

relationship with Barton Green, who became the family’s

investment adviser.    Colonel and Ms. Jorgensen adhered to a “buy

and hold” strategy premised on long-term growth and dividend

reinvestment.   Consequently, there was very little trading

activity though Colonel Jorgensen regularly researched

investments and checked on his holdings.    Ms. Jorgensen was not

involved in the couple’s financial matters or investment

decisions.   Before the formation of the partnerships at issue the

couple’s investments in marketable securities were held in four

accounts:    Two were Colonel Jorgensen’s individual accounts, one

belonged to Ms. Jorgensen individually,2 and one was the couple’s

joint account with right of survivorship.

Ms. Jorgensen’s Revocable Trust

     Peter Arntson was Colonel and Ms. Jorgensen’s estate

planning attorney.    Mr. Arntson prepared Ms. Jorgensen’s

revocable trust agreement at the direction of Colonel Jorgensen.

Ms. Jorgensen first met Mr. Arntson on October 19, 1994, the day

she executed her revocable trust agreement titled “Erma

Jorgensen’s Trust Agreement”.     On that same day Ms. Jorgensen

executed a durable power of attorney naming Colonel Jorgensen,

Jerry Lou, and Gerald her attorneys-in-fact.    Ms. Jorgensen later

amended her revocable trust agreement in January 1997 to name


     2
      Although Ms. Jorgensen held one account individually, she
was not involved in any decisionmaking with respect to the
investments.
                                -5-

Jerry Lou and Gerald as successor trustees in the event of Ms.

Jorgensen’s inability to manage her affairs.    Ms. Jorgensen was

the sole beneficiary of her revocable trust during her lifetime.

Under the trust terms, she had access to all trust income and

corpus without restriction and the trustees had a duty to

administer the trust solely for Ms. Jorgensen’s benefit.

Formation of Jorgensen Management Association

     Colonel Jorgensen, in consultation with Mr. Arntson, decided

that he and his wife would form a family limited partnership.

Mr. Arntson and Colonel Jorgensen met several times to discuss

the structure of the partnership.     Neither Ms. Jorgensen nor her

children were involved in any of these discussions.    On May 15,

1995, Colonel Jorgensen, Ms. Jorgensen, Jerry Lou, and Gerald

signed the Jorgensen Management Association (JMA-I) partnership

agreement.   The JMA-I partnership agreement states that the

parties desired to pool certain assets and capital for the

purpose of investing in securities.    On May 19, 1995, a

certificate of limited partnership for JMA-I was filed with the

Commonwealth of Virginia.

     On June 30, 1995, Colonel and Ms. Jorgensen each contributed

marketable securities valued at $227,644 to JMA-I in exchange for

50-percent limited partnership interests.    Gerald and Jerry Lou,

along with their father, were the general partners.    Colonel and

Ms. Jorgensen had six grandchildren; three were Gerald’s and
                                  -6-

three were Jerry Lou’s.     Gerald, Jerry Lou, and the six

grandchildren were listed as limited partners and received their

initial interests by gift.3    Neither Gerald, Jerry Lou, nor any

of the grandchildren made a contribution to JMA-I, although each

was listed in the partnership agreement as either a general or a

limited partner.   During his lifetime Colonel Jorgensen made all

decisions with respect to JMA-I.

     In 1993 Colonel Jorgensen was diagnosed with cancer, and he

passed away on November 12, 1996.       Before his death he and Ms.

Jorgensen moved to California, where they lived in the house next

door to Jerry Lou.

     On January 29, 1997, Mr. Arntson wrote to Ms. Jorgensen

regarding Colonel Jorgensen’s estate tax return and her own

estate planning.   Mr. Arntson recommended that Colonel

Jorgensen’s estate claim a 35-percent discount on his interest in

JMA-I.   The estate’s interest in JMA-I passed into Colonel

Jorgensen’s family trust.     The family trust was funded with

$600,000 of assets including JMA-I interests valued using

minority interest and lack of marketability discounts.       All

amounts over $600,000 went to Ms. Jorgensen.       Mr. Arntson also




     3
      Our use of the term “gift” and other related terms is for
convenience only. We do not intend to imply that Colonel and Ms.
Jorgensen’s transfers of limited partnership interests were
completed gifts for Federal tax purposes.
                                 -7-

recommended that Ms. Jorgensen transfer her brokerage accounts to

JMA-I.    He explained:

     Hopefully, this will allow your estate to qualify for
     the discount available to ownership of interests in
     limited partnerships and at the same time, facilitate
     your being able to make annual gifts to your children
     and grandchildren. This is important if you wish to
     reduce the amount of your own estate which will be
     subject to estate taxes.

     Mr. Arntson also wrote to Ms. Jorgensen on January 30, 1997.

He again recommended that Ms. Jorgensen transfer her and Colonel

Jorgensen’s estate’s brokerage accounts to JMA-I.

     The reason for doing this is so that hopefully your
     limited partnership interest in JMA partnership will
     qualify for the 35% discount. Instead of your estate
     having a value in various securities of about
     $1,934,213.00 it would be about $1,257,238.00. The
     difference of $676,975.00 would result in a potential
     savings in estate taxes to the beneficiaries of your
     estate of $338,487.50. Obviously, no one can guarantee
     that the IRS will agree to a discount of 35%, however,
     even if IRS agreed to only a discount of 15%, the
     savings to your children would be $145,066.00, and
     there can be no discount if the securities owned by you
     continue to be held directly by you.

The Formation of JMA-II

     Although Mr. Arntson wrote to Ms. Jorgensen, he did not

personally meet with her to discuss additional contributions to

JMA-I.    Instead, all planning discussions were among Mr. Arntson,

Jerry Lou, Jerry Lou’s husband, and Gerald.   On the basis of

these discussions, they decided to form JMA-II.   On May 19, 1997,

Mr. Arntson wrote to Ms. Jorgensen regarding the formation of

JMA-II.    He explained:
                             -8-

     To a certain extent we are trying to reorganize your
     assets and those of Colonel Jorgensen into two
     different groups--one grouping Jorgensen Management
     Associates Two (JMA2) will hold basically high basis
     assets and the second grouping (JMA) will hold
     basically low basis assets. In the future, you would
     primarily make gifts to your children and descendants
     from JMA2 which will hold high basis assets.

     JMA-II was formed on July 1, 1997, when Ms. Jorgensen’s

children filed a certificate of limited partnership interest with

the Commonwealth of Virginia.   On July 28, 1997, Ms. Jorgensen

contributed $1,861,116 in marketable securities to JMA-II in

exchange for her initial partnership interest.    In August 1997

she contributed $22,019 to JMA-II, consisting of marketable

securities, money market funds, and cash.   Also in August 1997,

in her role as executrix of Colonel Jorgensen’s estate, Ms.

Jorgensen contributed $718,530 from his brokerage account,

consisting of marketable securities, money market funds, and

cash.   Of the contribution, $190,254 was attributable to Ms.

Jorgensen as it was Ms. Jorgensen’s marital bequest from Colonel

Jorgensen.   After these contributions were completed, Ms.

Jorgensen held a 79.6947-percent interest in JMA-II, and Colonel

Jorgensen’s estate held a 20.3053-percent interest.    The children

and grandchildren did not contribute to JMA-II.    But Gerald and

Jerry Lou were general partners, and Gerald, Jerry Lou, and the

grandchildren were listed as limited partners in JMA-II’s

partnership agreement.
                                -9-

     The children and grandchildren received their interests in

JMA-II from Ms. Jorgensen.   The values were determined using the

values of the securities held by JMA-II on November 12, 1996,

although the partnership interests were transferred in the summer

of 1997.   On the basis of their values in the summer of 1997, the

partnership interests exceeded the $10,000 gift tax exclusion.

Gift tax returns were therefore required, but none was filed.4

     Jerry Lou consulted with Attorney Philip Golden about the

transfer of limited partnership interests in JMA-II during 1999.

Ms. Jorgensen was considering transferring partnership interests

valued at $650,000, the estate and gift tax exemption in 1999.

In October 1998 Mr. Golden wrote Ms. Jorgensen a letter



     4
      In 1995, 1996, and 1998 Ms. Jorgensen transferred,
respectively, 2-percent, 1.462-percent, and .36522-percent
limited partnership interests in JMA-I to each of her two
children and six grandchildren. In 1997 and 1998 she
transferred, respectively, .4356-percent and .3201-percent
limited partnership interests in JMA-II to each of her children
and grandchildren.

     In 1999 and 2000 Ms. Jorgensen transferred, respectively,
6.5888-percent and 1.5020-percent interests in JMA-II to her
children. In 1999 and 2000 she also transferred, respectively,
.5905-percent and .6670-percent interests in JMA-II to each of
her grandchildren. In 2001 and 2002 she transferred,
respectively, .6426-percent and .7352-percent interests in JMA-II
to each of her children and grandchildren.

     The 1999, 2000, and 2001 transfers of partnership interests
were valued using a 50-percent discount. Absent the discount,
their values would have exceeded the $10,000 annual gift tax
exclusion. The 2002 transfers were valued using a 42-percent
discount. Gift tax returns were not filed for the transfers made
through 1998 but were filed for 1999 and thereafter.
                                 -10-

explaining the concept of using discounts for lack of

marketability and minority interests.     The letter stated that

they needed to hire an expert to value the interests “to have any

chance of justifying the discounted value of a limited

partnership interest if a gift tax or estate tax return is

audited.”     On October 21, 1998, Mr. Golden requested an appraisal

of a 1-percent limited partnership interest in JMA-II.       The

letter stated that “The partnership’s sole activity is to hold

and invest securities”.

Operation of the Partnerships

     Neither JMA-I nor JMA-II operated a business.     The

partnerships held passive investments only, primarily marketable

securities.    Jerry Lou maintained the checking accounts for the

partnerships, but they went unreconciled, and Gerald never looked

at the check registers.    Neither of the partnerships maintained

formal books or records.    Jerry Lou and Gerald received monthly

brokerage statements from their broker, and they spoke with their

broker approximately every 3 months.

     At one point Gerald called Mr. Golden to ask whether there

was a way “to access some of this money that’s mine.”     Mr. Golden

explained that Gerald could take a loan, but Gerald was surprised

that he would have to pay interest.     Gerald testified that “it

took a while to get my head around the fact that it wasn’t just

like a bank account you can get money out of.”     In July 1999
                               -11-

Gerald borrowed $125,000 from JMA-II to purchase a home.     On July

25, 2001, Gerald made his first interest payment of $7,625.     On

August 7, 2002, he made a second and final interest payment of

$7,625.   Jerry Lou believed that if Gerald did not repay the

loan, she would take it out of his partnership interest.

However, each of the partnerships required that all distributions

be pro rata.

The Mingling of Partnership and Personal Funds

     Although the partnership agreements state that withdrawals

shall only be made by general partners, Ms. Jorgensen was

authorized to write checks on the JMA-II checking account, and

she wrote checks on both the JMA-I and JMA-II accounts.     In 1998

she signed several checks on the JMA-I account, including cash

gifts to family members.   On October 26, 1998, Ms. Jorgensen

signed checks drawn on JMA-I’s checking account, giving gifts of

$10,000 to three family members.   On April 28, 1999, Ms.

Jorgensen deposited $30,000 into the JMA-II account to repay the

$30,000 she had withdrawn from the JMA-I account for gift-giving.

The record does not indicate why the amount was taken from JMA-I

but repaid to JMA-II, nor is there any indication that the error

was corrected.

     On December 27, 1998, Jerry Lou’s husband wrote, and Ms.

Jorgensen signed, a $48,500 check drawn on Ms. Jorgensen’s

personal account to purchase a Cadillac for Gerald.   The parties
                               -12-

characterized it as a loan which was forgiven in January 1999.

However, the gift was not reported on a gift tax return in 1998

or 1999.   On January 10, 1999, Ms. Jorgensen wrote a $48,500

check, drawn on the JMA-I account, to Jerry Lou because Ms.

Jorgensen wished to make an equalizing gift but did not have

sufficient funds in her personal checking account.   The gift to

Jerry Lou was not reported on a gift tax return.   On April 28,

1999, Ms. Jorgensen deposited $48,500 into the JMA-II account to

repay the $48,500 she had withdrawn from the JMA-I account.     The

record does not indicate why the amount was taken from JMA-I but

repaid to JMA-II, nor is there any indication that the error was

corrected.

     Ms. Jorgensen also used the JMA-I account to pay her 1998

quarterly estimated Federal taxes of $6,900 and her California

State taxes of $2,290.   The record does not indicate that these

amounts were returned to the partnership, although the estate

contends that JMA-I’s Federal tax return shows the amounts as due

from Ms. Jorgensen.5

     Ms. Jorgensen also paid $6,447 of Colonel Jorgensen’s

estate’s administration expenses using JMA-II’s checking account.

The record does not indicate that Colonel Jorgensen’s estate or


     5
      The return reports that $27,833 was due from Ms. Jorgensen.
This includes three $10,000 checks written to family members,
less partnership expenses paid by Ms. Jorgensen. It is unclear
whether the amount due from Ms. Jorgensen includes the amounts
paid for taxes.
                                 -13-

Ms. Jorgensen repaid the $6,447 to JMA-II.    JMA-II also paid

Colonel Jorgensen’s estate’s Federal income tax and legal

services related to the filing of his estate’s Federal estate tax

return.   The record does not indicate that these amounts were

repaid to JMA-II.   JMA-II also paid expenses related to Ms.

Jorgensen’s 1999 and 2002 gift tax returns.    The record does not

indicate that these amounts were repaid to JMA-II.

     In 1998 and 1999 Ms. Jorgensen paid both partnerships’

accounting fees, registered agent’s fees, and annual registration

fees with the Commonwealth of Virginia.    In 1999 she paid

attorney’s fees to Mr. Golden that related to his conversations

with an appraiser regarding the partnerships’ structure as well

as the preparation of a promissory note related to JMA-II’s

$125,000 loan to Gerald.     Mr. Golden did not issue separate bills

for his work with respect to the partnerships and with respect to

Ms. Jorgensen.

After Ms. Jorgensen’s Death

     Ms. Jorgensen died on April 25, 2002.    On August 30, 2002,

Jerry Lou and her husband sent Gerald a letter informing him of

the various issues related to the administration of the estate.

The letter stated in part:

     Phil Golden highly recommends that you pay back
     Jorgensen Management II Partnership the $125,000 you
     borrowed. You paid the interest in July for $7,625.00
     so you are just about square. He says it will clean up
     the Partnership and things will look much better should
     we get (and we probably will) audited in the upcoming
                             -14-

     months. * * * Guess we have to be real straight on who
     borrowed what etc. so the partnership looks very legit.

The letter also stated that Gerald had received or was about to

receive $286,637, which we presume was related to the settlement

of the estate.   The $125,000 loan was repaid on January 24,

2003.6

     Also on January 24, 2003, JMA-II paid Ms. Jorgensen’s

$179,000 Federal estate tax liability and $32,000 California

estate tax liability (as calculated by the estate).

     In 2003 through 2006 JMA-I and JMA-II sold certain assets,

including stock in Payless Shoesource, Inc., and May Department

Stores Co., which Ms. Jorgensen had contributed to the

partnerships during her lifetime.   In computing the gain on the

sale of those assets, the partnerships used Ms. Jorgensen’s

original cost basis in the assets, as opposed to a step-up in

basis equal to the fair market value of the assets on Ms.

Jorgensen’s date of death under section 1014(a).   The JMA-I and

JMA-II partners reported the gains on their respective Forms

1040, U.S. Individual Income Tax Return, and paid the income

taxes due.   Between April 6 and 9, 2008, the JMA-I and JMA-II

partners submitted to respondent untimely protective claims for




     6
      The $125,000 loan was not reflected as an asset in the
valuation of JMA-II and was not reported on Ms. Jorgensen’s
Federal estate tax return. The estate conceded this was an
error.
                                -15-

refund of 2003 income taxes paid on the sale of the assets Ms.

Jorgensen contributed to the partnerships.

                               OPINION

I.   Burden of Proof

     Generally the taxpayer bears the burden of proving the

Commissioner’s determinations are erroneous.    Rule 142(a).

However, with respect to a factual issue relevant to the

liability of a taxpayer for tax, the burden of proof may shift to

the Commissioner if the taxpayer has produced credible evidence

relating to the issue, met substantiation requirements,

maintained records, and cooperated with the Secretary’s

reasonable requests for documents, witnesses, and meetings.      Sec.

7491(a).   A showing by the taxpayer that the Commissioner’s

determinations in the notice of deficiency are arbitrary,

excessive, or without foundation also shifts the burden of proof

to the Commissioner.    Palmer v. United States, 116 F.3d 1309,

1312 (9th Cir. 1997).

     The estate argues that the burden of proof shifts to

respondent under both these theories.    Our resolution of the

issues is based on the preponderance of the evidence rather than

the allocation of the burden of proof; therefore, we need not

address the estate’s arguments with respect to the burden of

proof.   See Blodgett v. Commissioner, 394 F.3d 1030, 1039 (8th

Cir. 2005), affg. T.C. Memo. 2003-212; Polack v. Commissioner,
                                 -16-

366 F.3d 608, 613 (8th Cir. 2004), affg. T.C. Memo. 2002-145;

Knudsen v. Commissioner, 131 T.C. ___ (2008).

II.   Section 2036(a)

      “‘Section 2036(a) is * * * intended to prevent parties from

avoiding the estate tax by means of testamentary substitutes that

permit a transferor to retain lifetime enjoyment of purportedly

transferred property.’”     Estate of Bigelow v. Commissioner, 503

F.3d 955, 963 (9th Cir. 2007) (quoting Strangi v. Commissioner,

417 F.3d 468, 476 (5th Cir. 2005), affg. T.C. Memo. 2003-145),

affg. T.C. Memo. 2005-65.    Section 2036(a) is applicable when

three conditions are met:    (1) The decedent made an inter vivos

transfer of property; (2) the decedent’s transfer was not a bona

fide sale for adequate and full consideration; and (3) the

decedent retained an interest or right enumerated in section

2036(a)(1) or (2) or (b) in the transferred property which the

decedent did not relinquish before her death.    If these

conditions are met, the full value of the transferred property

will be included in the value of the decedent’s gross estate.

Estate of Bongard v. Commissioner, 124 T.C. 95, 112 (2005).

      A.   Whether There Was a Section 2036(a) Transfer

      The estate argues that Ms. Jorgensen’s transfers of

securities to the partnerships were not “transfers” within the

meaning of section 2036(a).    The term “transfer” as used in

section 2036(a) is broadly defined, reflecting the purpose of
                                 -17-

section 2036(a), which is to include in the value of a decedent’s

gross estate the values of all property she transferred but

retained an interest in during her lifetime.      Estate of Bongard

v. Commissioner, supra at 113.    A section 2036(a) transfer

includes any inter vivos voluntary act of transferring property.

Id.   Ms. Jorgensen’s contributions to the partnerships were

voluntary inter vivos transfers of property and thus are

“transfers” within the meaning of section 2036(a).

      B.   Whether the Transfers Were Bona Fide Sales for Adequate
           and Full Consideration

      Section 2036(a) excepts from its application any transfer of

property otherwise subject to that section which is a “bona fide

sale for an adequate and full consideration in money or money’s

worth”.    The exception is limited to a transfer of property where

the transferor “has received benefit in full consideration in a

genuine arm’s length transaction”.      Estate of Goetchius v.

Commissioner, 17 T.C. 495, 503 (1951).     The exception is

satisfied in the context of a family limited partnership

      where the record establishes the existence of a
      legitimate and significant nontax reason for creating
      the family limited partnership, and the transferors
      received partnership interests proportionate to the
      value of the property transferred. The objective
      evidence must indicate that the nontax reason was a
      significant factor that motivated the partnership’s
      creation. A significant purpose must be an actual
      motivation, not a theoretical justification.

           By contrast, the bona fide sale exception is not
      applicable where the facts fail to establish that the
      transaction was motivated by a legitimate and
                                -18-

     significant nontax purpose. A list of factors that
     support such a finding includes the taxpayer standing
     on both sides of the transaction, the taxpayer’s
     financial dependence on distributions from the
     partnership, the partners’ commingling of partnership
     funds with their own, and the taxpayer’s actual
     failure to transfer the property to the partnership.

Estate of Bongard v. Commissioner, supra at 118 (citations

omitted).

     We separate the bona fide sale exception into two prongs:

(1) Whether the transaction qualifies as a bona fide sale; and

(2) whether the decedent received adequate and full

consideration.      Id. at 119, 122-125.

            1.     Ms. Jorgensens’s Nontax Reasons for Forming the
                   Partnerships

     Whether a sale is bona fide is a question of motive.      We

must determine whether Ms. Jorgensen had a legitimate and

significant nontax reason, established by the record, for

transferring her property.     The estate argues that Ms. Jorgensen

had several nontax reasons for transferring her property to JMA-I

and JMA-II.      Respondent disputes the significance and legitimacy

of those reasons and offers several factors to support his

argument that tax savings were the primary reason Ms. Jorgensen

transferred her brokerage accounts to the partnerships.

                   a.   Management Succession

     Ms. Jorgensen was not involved in investment decisions

during Colonel Jorgensen’s lifetime, and she made it known that

she did not want the responsibility.       If he predeceased his wife,
                               -19-

as ultimately occurred, Colonel Jorgensen wanted Gerald and Jerry

Lou to manage his wife’s investments for her.

     The estate points to several cases in support of its

argument that providing for management succession is a legitimate

and significant reason for the transfer of assets to a limited

partnership.7   The U.S. Court of Appeals for the Fifth Circuit

has held that transfers to a family partnership were bona fide

sales where the purpose was to maintain control and authority to

manage working oil and gas interests.    Kimbell v. United States,

371 F.3d 257, 267 (5th Cir. 2004).    More recently, we held that

transfers to a family partnership were bona fide sales where the

purposes included requiring the decedent’s children to maintain

joint management of business matters related to patents and

patent licensing agreements, including related litigation.

Estate of Mirowski v. Commissioner, T.C. Memo. 2008-74 n.44.




     7
      The estate also directs us to two additional cases that do
not involve transfers to family limited partnerships. In Estate
of Bischoff v. Commissioner, 69 T.C. 32, 39-41 (1977), we held
that maintaining control of a majority of shares of a pork
processing business was a legitimate business purpose for
entering into buy-sell agreements at the partnership level, and
thus limiting the amount includable in the decedent’s gross
estate to the amount paid under the agreement. In Estate of
Reynolds v. Commissioner, 55 T.C. 172, 194 (1970), we held that a
voting trust agreement factored into the valuation of a
decedent’s estate when the principal purpose of the agreement was
to assure the continuity of a life insurance company’s management
and policies. These cases both involve the management of an
active business, not a portfolio of untraded securities, and
therefore are distinguishable from this case.
                               -20-

     We are mindful that the U.S. Court of Appeals for the Ninth

Circuit, to which an appeal in this case would ordinarily lie,

has stated that “efficient management” may count as a credible

nontax purpose, but only if the business of the family

partnership required some kind of active management as in Kimbell

v. United States, supra.8   Estate of Bigelow v. Commissioner, 503

F.3d at 972; see also Strangi v. Commissioner, 417 F.3d at 481

(transfer of assets had no legitimate nontax rationale where the

partnership “never made any investments or conducted any active

business following its formation”).

     In both Kimbell and Estate of Mirowski, the assets

transferred to the partnership required active management.   The

estate argues that Colonel Jorgensen, and later Gerald and Jerry

Lou, engaged in “some kind of active management” with respect to

the partnerships.   The estate further argues that because the

partnerships invested in specific companies rather than mutual

funds, active management was required.   Colonel Jorgensen was a



     8
      The estate argues that the “efficient management” argument
in Estate of Bigelow v. Commissioner, 503 F.3d 955 (9th Cir.
2007), affg. T.C. Memo. 2005-65, is different from its argument
with respect to “management succession”, and therefore we should
disregard Estate of Bigelow on this issue. We disagree. The
U.S. Court of Appeals for the Ninth Circuit cites Kimbell v.
United States, 371 F.3d 257, 267 (5th Cir. 2004), which relates
to management of oil and gas interests after the transferor’s
death. We therefore conclude that for management succession to
be a legitimate nontax purpose under Estate of Bigelow v.
Commissioner, supra at 972, there must be at least “some kind of
active management”.
                               -21-

well-read, self-taught, knowledgeable investor.   He researched

stocks, tracked his investments, and kept notes and a journal

with respect to his investments.   Nevertheless, he made very few

trades.   After his death, Gerald and Jerry Lou were responsible

for investment decisions.   They were not nearly as knowledgeable

or as interested in investing as their father was.   They did not

research investments or keep records as their father had, and

they did not consult with their investment adviser often.

Consequently, there was very little trading in the partnerships’

accounts.9

     JMA-I and JMA-II were passive investment vehicles.   The

general partners’ activities with respect to the management of

the partnerships did not rise to the level of active management.

As the U.S. Court of Appeals for the Third Circuit has suggested,

the mere holding of an untraded portfolio of marketable

securities weighs against the finding of a nontax benefit for a

transfer of that portfolio to a family entity.    See Estate of

Thompson v. Commissioner, 382 F.3d 367, 380 (3d Cir. 2004), affg.

T.C. Memo. 2002-246.




     9
      In 2005 a new adviser took over their account. The new
adviser contacted Jerry Lou approximately every 2 weeks to
suggest investment options. However, Jerry Lou indicated that
even this limited contact was more than she wanted. She
testified that “often I just tell him no, we’re happy with things
the way they are.”
                              -22-

     Furthermore, the partnerships were not needed to help Ms.

Jorgensen manage her assets because her revocable trust, which

had her children as trustees, already served that function.

Colonel Jorgensen had a similar plan in the trust he established

at the same time as Ms. Jorgensen’s.   Ms. Jorgensen’s trust was

authorized to hold substantially all her assets and provided her

with centralized management and control.   Furthermore, Gerald and

Jerry Lou were also her attorneys-in-fact and thus authorized to

manage her assets under a durable power of attorney.     The estate

has not shown how the limited partnerships accomplished the goal

of managing Ms. Jorgensen’s assets in a way that the trustees of

her revocable trust or her attorneys-in-fact could not.    See

Estate of Bigelow v. Commissioner, supra at 972 (court rejected

estate’s argument that management of decedent’s assets

transferred to partnership was a legitimate nontax reason for

transfer where general partner was also trustee of decedent’s

trust); Estate of Erickson v. Commissioner, T.C. Memo. 2007-107

(centralized management of taxpayer’s assets was not a legitimate

nontax reason for transferring assets to a family partnership,

where general partner was also decedent’s attorney-in-fact).

     In sum, the general partners’ management of JMA-I’s and JMA-

II’s portfolios of marketable securities was not active.

Therefore, management succession was not a legitimate reason for
                                 -23-

Ms. Jorgensen’s transferring the bulk of her assets to the

partnerships.

                 b.    Financial Education of Family Members and
                       Promotion of Family Unity

     The estate argues that Colonel Jorgensen intended to use

JMA-I as a financial education tool to teach his children about

investing.    The estate also argues that he hoped that the

partnership would promote family unity by requiring the children

to work together.

     The record does not indicate that Colonel Jorgensen actually

taught his children much about investing.    Although they were

general partners in JMA-I, they did not participate in its

activities.    Colonel Jorgensen made all decisions.   In fact, the

children testified that after their father died they faced a

steep learning curve in operating the partnerships.    They further

testified that after their father’s death they did not make any

trades and their investment adviser left them alone.

     The estate argues that Colonel Jorgensen hoped JMA-I would

promote family unity.    However, considering Colonel Jorgensen’s

failure to involve his children in decisionmaking with respect to

JMA-I, we are unconvinced that this was anything more than a

theoretical purpose.    When JMA-II was formed and funded, JMA-I

already ostensibly served to promote family unity.     We do not see

how JMA-II advanced the goal of family unity.    Furthermore,

because the partnerships required pro rata distributions, Gerald
                                -24-

and Jerry Lou’s differing spending habits (Gerald was a

spendthrift; Jerry Lou was frugal), combined with their roles as

general partners, seem as likely to cause family disunity as

unity.

                 c.   Perpetuation of the Jorgensens’ Investment
                      Philosophy and Motivating Participation in
                      the Partnerships

     The estate argues that the partnerships were formed to

perpetuate Colonel Jorgensen’s investment philosophy premised on

buying and holding individual stocks with an eye toward long-term

growth and capital preservation.   Gerald testified that he wants

the partnerships to operate indefinitely so that his parents’

philosophy can be instilled in successive generations.

     The estate’s argument is unconvincing.     Under these

circumstances perpetuation of a “buy and hold” strategy for

marketable securities is not a legitimate or significant nontax

reason for transferring the bulk of one’s assets to a

partnership.10   Nor is capital preservation.   There are no

special skills to be taught when adhering to a “buy and hold”



     10
      In the unique circumstances of Estate of Schutt v.
Commissioner, T.C. Memo. 2005-126, we held that a “buy and hold”
strategy with respect to Exxon and Dupont stock was a legitimate
and significant motive for transferring assets to two business
trusts. The decedent’s wife was the daughter of Eugene E.
duPont, and the decedent hoped to maintain ownership of the stock
traditionally held by the family including stock held by certain
trusts created for the benefit of his children and grandchildren
in the event those trusts terminated. Similar factors are not
present in this case.
                                 -25-

strategy, especially when one pays an investment adviser to

recommend what to buy and when to sell.    This is not a situation

where future generations are taught how to manage an ongoing

business.

     The estate also argues that transferring interests in the

partnerships to their children motivated them to actively

participate in the partnerships.    We also find this argument

unconvincing.   As previously discussed, Colonel Jorgensen did not

include Gerald and Jerry Lou in the decisionmaking process, and

the grandchildren received limited partnership interests.      The

partnership agreements precluded the limited partners from

participating in the decisionmaking process.    The estate

recognizes that simplifying gift-giving is not a legitimate and

significant nontax purpose.   See Estate of Bigelow v.

Commissioner, 503 F.3d at 972.     However, the estate argues that

gift-giving was the means to the end; i.e., participation in the

partnerships.   We are not persuaded that the transfers of limited

partnership interests led to any meaningful participation in the

partnerships.   Perhaps the annual receipt of Schedules K-1,

Partner’s Share of Income, Credits, Deductions, etc., reflecting

the income of the partnerships would cause the grandchildren to

become interested in investing, but this is merely a theoretical

purpose.
                                 -26-

                  d.   Pooling of Assets

     The estate argues that the partnerships were created in part

to pool assets.    JMA-I was funded equally by Colonel and Ms.

Jorgensen through their transfer of marketable securities to the

partnership.   Colonel Jorgensen managed those assets before and

after their transfer.    Ms. Jorgensen had no involvement in

managing the assets or in the decision to transfer them to JMA-I.

Under these circumstances the pooling of assets was not a

significant purpose for the formation of JMA-I.

     JMA-II was funded by Ms. Jorgensen acting through her

revocable trust and as executor of Colonel Jorgensen’s estate.

There is no credible evidence that Ms. Jorgensen wished to pool

assets.

     The estate argues that because Colonel and Ms. Jorgensen

intended to give gifts to their children and grandchildren, doing

so through the partnerships allowed for the pooling of those

assets, achieving economies of scale resulting in lower operating

costs, less need for administrative compliance, and better

attention from service providers.       However, there is little

evidence to support this argument.       The Jorgensens’ investment

adviser testified that if the gifts given to the children and

grandchildren had been securities, rather than limited

partnership interests, and they had held their own investment

accounts, those accounts would have received less attention.
                                 -27-

However, he further testified that family members would have

received the same attention simply by linking the accounts

together.   We also doubt that giving securities to each of the

children and grandchildren would have been less costly or

complicated than creating two limited partnerships, each

registered with the Commonwealth, requiring registered agents,

annual reports to the Commonwealth, and the filing of annual

Federal income tax returns and Schedules K-1.

                e.     Spendthrift Concerns

     The estate argues that Colonel and Ms. Jorgensen transferred

their assets to the partnerships because they intended to make

gifts to their children and grandchildren and they had

spendthrift concerns.     Specifically, they were worried about

divorces affecting family members, and they did not want to give

assets to minors who might spend the windfall unwisely.     They

were also concerned because Gerald was a free spender who had

“never saved a dime.”     Therefore, the estate argues they sought a

management succession vehicle which would incorporate purposeful

illiquidity and transfer restrictions.

     Gerald may have been a spendthrift, but he was also a

general partner in both partnerships.     Although the general

partners had to agree on distributions, he was in a position to

exert influence.     Jerry Lou, the other general partner, was

frugal, and thus likely to resist large distributions.     The
                               -28-

estate argues these opposing views were likely to curb Gerald’s

spending.   Indeed since the creation of the partnerships, Gerald

has become more conservative with his money.   However, if

Gerald’s money-management habits had been a significant concern,

it is unlikely Colonel Jorgensen would have decided to make him a

general partner.

     Gerald, despite being a general partner in both

partnerships, believed until 1999 that the partnerships were like

bank accounts and he could access money whenever he wanted.   Yet

he made no attempt to access the money until 1999, when he was

told he could take a loan.   He subsequently borrowed $125,000 to

purchase a home.   No payments were made on the loan for 2 years,

and at that time, only interest was paid.    The loan was finally

repaid when Jerry Lou and her husband suggested that it be repaid

to make the partnership “look very legit.”   At that point Gerald

had received or was about to receive $286,637 which we presume

was related to the settlement of his mother’s estate, more than

enough to satisfy the $125,000 loan.   Gerald’s ability to access

funds in the form of a loan without making payment on the loan

for 2 years suggests that curbing his spending was not a

significant reason for the formation of the partnerships.

     The estate also argues that the partnerships protected the

family’s assets from creditors.   There is no evidence that Ms.

Jorgensen or any other partner was likely to be liable in
                                 -29-

contract or tort for any reason.    The only colorable concern is

that Gerald could have overextended himself financially, causing

problems with creditors.   However, this is a purely theoretical

concern.   Cf. Kimbell v. United States, 371 F.3d at 268

(acknowledging legitimate risk of personal liability where

decedent transferred working interests in oil and gas properties

into a family partnership and, absent partnership formation,

family members as individuals would have faced exposure for

environmental torts arising on those properties).

                f.   Providing for Children and Grandchildren
                     Equally

     The estate argues that Ms. Jorgensen’s desire to provide for

her children and grandchildren equally was a significant

motivating factor in forming the partnerships.   Ms. Jorgensen did

provide for her children and grandchildren equally by giving them

limited partnership interests.    However, she could have provided

for them equally well by giving securities directly.    The only

assistance the partnerships provided was to facilitate and

simplify gift-giving equal to the annual gift tax exclusion,

which is not a significant and legitimate nontax reason for

transferring one’s assets to a limited partnership.11   See Estate


     11
      This Court has held that providing for children equally
was a significant and legitimate nontax reason for transferring
assets to a family limited partnership. Estate of Mirowski v.
Commissioner, T.C. Memo. 2008-74. However, that case involved
the management of patents, patent licensing agreements, and
                                                   (continued...)
                                 -30-

of Bigelow v. Commissioner, 503 F.3d at 972; Estate of Bongard v.

Commissioner, 124 T.C. at 126-127.

            2.   Factors Indicating the Transfers Were Not Bona
                 Fide Sales

                 a.    Valuation Discounts

     The estate argues that tax savings could not have been the

primary factor in forming the partnerships because discounts were

not used in valuing Colonel and Ms. Jorgensen’s gifts of

partnership interests in 1995 through 1998.     However, discounts

were taken in valuing Colonel Jorgensen’s estate after his death

in 1996.

     Around that same time Ms. Jorgensen’s estate planner

recommended that she transfer her remaining brokerage accounts to

JMA-I.    He wrote:   “The reason for doing this is so that

hopefully your limited partnership interest in JMA partnership

will qualify for the 35% discount.”     Ms. Jorgensen did not

transfer her remaining assets to JMA-I.      Instead she created JMA-

II and transferred her brokerage accounts to that partnership.

     There is little contemporaneous documentary evidence with

respect to the purpose for forming JMA-I.     This is most likely

because the purposes were discussed between Colonel Jorgensen and

his attorney.    Because JMA-II was formed with little direct input


     11
      (...continued)
related litigation which could not be readily divided into equal
shares, as opposed to a portfolio of marketable securities which
could. See id.
                                -31-

from Ms. Jorgensen, her attorney wrote her letters discussing the

reasons for transferring her remaining brokerage assets to a

limited partnership.    Those letters show that reducing the value

of Ms. Jorgensen’s taxable estate, and thus tax savings, was the

primary reason for the formation and funding of JMA-II.

     The only documentary evidence showing a different reason for

the formation and funding of the partnerships is a letter from

Mr. Golden to Ms. Jorgensen in October 1998.    It discusses her

giving an additional $650,000 of limited partnership interests

valued using significant discounts for lack of marketability and

minority interests.    It further discusses the potential for an

Internal Revenue Service audit of the gift because JMA-II held

only passive investments.    It cites Estate of Schauerhamer v.

Commissioner, T.C. Memo. 1997-242, and discusses the

Commissioner’s arguments and the reasons the Court determined

that the taxpayer’s family partnership should not be respected.

The letter states that Ms. Jorgensen had several nontax reasons

for creating JMA-II, including:    The ability to transfer assets

without disrupting the recipient’s initiative, cost savings from

the pooling of assets, simplification of gift-giving, protection

against creditors, protection in the case of divorce, and the

education of younger family members.12   The letter was written


     12
      We have previously observed that taxpayers often disguise
tax-avoidance motives with a rote recitation of nontax purposes.
                                                   (continued...)
                                 -32-

well after the formation and funding of the partnerships by an

attorney preparing for potential litigation with respect to the

gift.     Thus, we give it little weight.

                  b.   Disregard of Partnership Formalities

     Neither partnership maintained books and records other than

a checkbook that went unreconciled and monthly brokerage

statements.    The partnerships’ return preparer used the

partnerships’ brokerage statements to prepare the partnership

returns.    There were no formal meetings between the partners, and

no minutes were ever kept.

     Ms. Jorgensen and her children often failed to treat the

partnerships as separate entities.      Ms. Jorgensen used

partnership assets to pay personal expenses, and she paid

partnership expenses with her personal assets.      For example, Ms.

Jorgensen used partnership assets to give $78,500 of cash gifts

to family members.     The mingling of personal funds with

partnership funds suggests that the transfer of property to a

family limited partnership was not motivated by a legitimate and

significant nontax reason.     Estate of Reichardt v. Commissioner,

114 T.C. 144, 152 (2000).

     Although Ms. Jorgensen was not financially dependent on

distributions from the partnerships for her day-to-day expenses,


     12
      (...continued)
Estate of Hurford v. Commissioner, T.C. Memo. 2008-278; see
Estate of Bongard v. Commissioner, 124 T.C. 95, 118 (2005).
                                -33-

she was dependent on the partnerships when her personal funds

became insufficient to satisfy her gift-giving program.    A

taxpayer’s financial dependence on distributions from the

partnership suggests that the transfer of property to a family

limited partnership was not motivated by a legitimate and

significant nontax reason.    Estate of Thompson v. Commissioner,

T.C. Memo. 2002-246; Estate of Harper v. Commissioner, T.C. Memo.

2002-121.

     JMA-II also made significant loans to its partners.    Gerald

borrowed $125,000 for the purchase of a home after he was told

that he could not withdraw money outright.    Although he borrowed

the money in July 1999, he did not make any payments on the loan

until July 2001.    If Gerald had not repaid the loan, Jerry Lou

believed she would have taken it out of his partnership interest,

although doing so would have violated the partnership’s

requirement that distributions be pro rata.

               c.     Whether the Transfers to JMA-I and JMA-II
                      Were at Arm’s Length

     Where a taxpayer stands on both sides of a transaction, we

have concluded that there is no arm’s-length bargaining and thus

the bona fide transfer exception does not apply.    E.g., Estate of

Strangi v. Commissioner, T.C. Memo. 2003-145; Estate of Harper v.

Commissioner, supra.    On the other hand, we have found an arm’s-

length bargain in the intrafamily context when the interests of

the family members were sufficiently divergent.    E.g., Stone v.
                                 -34-

Commissioner, T.C. Memo. 2003-309.      Although intrafamily

transfers are permitted under section 2036(a), they are subject

to heightened scrutiny.     Estate of Bigelow v. Commissioner, 503

F.3d at 969; Kimbell v. United States, 371 F.3d at 263.

     Colonel Jorgensen decided to form and fund JMA-I.     Although

he and Ms. Jorgensen contributed equal amounts to the

partnership, Ms. Jorgensen had no involvement in the decision or

the transfer.    Colonel Jorgensen’s attorney believed that Colonel

Jorgensen represented Ms. Jorgensen during their meetings.

Neither Ms. Jorgensen nor any of their children or grandchildren

were consulted.    Under these circumstances, we conclude that the

transfer of assets to JMA-I was not at arm’s length.

     Ms. Jorgensen formed and funded JMA-II through her revocable

trust and in her role as executrix of her husband’s estate.

Although she formed and funded JMA-II, the decision to do so was

largely made by her children in consultation with the family’s

attorney.    Considering that Ms. Jorgensen stood on both sides of

the transaction, although in different roles, we conclude that

the transfer of assets to JMA-II was not at arm’s length.

            3.    Conclusion With Respect to Whether the
                  Transactions Were a Bona Fide Sale

     Taking into account the totality of the facts and

circumstances surrounding the formation and funding of the

partnerships, on the preponderance of the evidence we conclude

that Ms. Jorgensen did not have a legitimate and significant
                               -35-

nontax reason for transferring her assets to JMA-I and JMA-II,

and therefore these were not bona fide sales.    We find especially

significant that the transactions were not at arm’s length and

that the partnerships held a largely untraded portfolio of

marketable securities.   See Estate of Thompson v. Commissioner,

382 F.3d at 380 (holding of an untraded portfolio of marketable

securities weighs against finding of a nontax reason for transfer

of portfolio to a family limited partnership).    Although the

estate recites a number of purported nontax reasons for the

formation and funding of the partnerships, none of those alleged

reasons are mentioned in contemporaneous documentation, and the

estate has failed to establish that any of the reasons was

significant and legitimate.

           4.   Whether the Transactions Were for Full and
                Adequate Consideration

      The general test for deciding whether transfers to a

partnership are made for adequate and full consideration is to

measure the value received in the form of a partnership interest

to see whether it is approximately equal to the property given

up.   Kimbell v. United States, 371 F.3d at 262; Estate of Bongard

v. Commissioner, 124 T.C. at 118.     Under Kimbell v. United

States, supra at 266, we focus on three things:

           (1) whether the interests credited to each of the
           partners was proportionate to the fair market
           value of the assets each partner contributed to
           the partnership, (2) whether the assets
           contributed by each partner to the partnership
                              -36-

            were properly credited to the respective capital
            accounts of the partners, and (3) whether on
            termination or dissolution of the partnership the
            partners were entitled to distributions from the
            partnership in amounts equal to their respective
            capital accounts. * * *


     Respondent does not dispute that the transfers were made for

full and adequate consideration.

     C.     Whether Ms. Jorgensen Retained the Possession or
            Enjoyment of, or the Right to the Income From, the
            Property She Transferred to JMA-I and JMA-II

     “An interest or right is treated as having been retained or

reserved if at the time of the transfer there was an

understanding, express or implied, that the interest or right

would later be conferred.”    Sec. 20.2036-1(a), Estate Tax Regs.

“The existence of formal legal structures which prevent de jure

retention of benefits of the transferred property does not

preclude an implicit retention of such benefits.”    Estate of

Thompson v. Commissioner, 382 F.3d at 375; Estate of McNichol v.

Commissioner, 265 F.2d 667, 671 (3d Cir. 1959), affg. 29 T.C.

1179 (1958); Estate of Bongard v. Commissioner, supra at 129.

     The existence of an implied agreement is a question of fact

that can be inferred from the circumstances surrounding a

transfer of property and the subsequent use of the transferred

property.    Estate of Bongard v. Commissioner, supra at 129.    We

have found implied agreements where:    (1) The decedent used

partnership assets to pay personal expenses, e.g., Estate of
                              -37-

Rosen v. Commissioner, T.C. Memo. 2006-115; (2) the decedent

transferred nearly all of his assets to the partnership, e.g.,

Estate of Reichardt v. Commissioner, 114 T.C. 144 (2000); and (3)

the decedent’s relationship to the assets remained the same

before and after the transfer, e.g., id.; Estate of Rosen v.

Commissioner, supra.

     Although Ms. Jorgensen retained sufficient assets outside

the partnership for her day-to-day expenses, she lacked the funds

to satisfy her desire to make cash gifts.   Thus, Ms. Jorgensen

used partnership assets to make significant cash gifts to her

family members.

     After Ms. Jorgensen’s death, JMA-II made principal

distributions of $179,000 and $32,000 which the estate used to

pay transfer taxes, legal fees, and other estate obligations.

The use of a significant portion of partnership assets to

discharge obligations of a taxpayer’s estate is evidence of a

retained interest in the assets transferred to the partnership.

See Estate of Rosen v. Commissioner, supra; Estate of Korby v.

Commissioner, T.C. Memo. 2005-103; Estate of Thompson v.

Commissioner, T.C. Memo. 2002-246.   “[P]art of the ‘possession or

enjoyment’ of one’s assets is the assurance that they will be

available to pay various debts and expenses upon one’s death.”

Strangi v. Commissioner, 217 F.3d at 477.
                                -38-

     The estate denies the existence of any agreement or

understanding that Ms. Jorgensen would retain economic use and

benefit of the assets transferred to the partnerships.     However,

the actual use of a substantial amount of partnership assets to

pay Ms. Jorgensen’s predeath and postdeath obligations undermines

the claim.   This is true regardless of whether the distributions

were charged against her percentage ownership in the

partnerships, and especially relevant considering that under the

terms of the partnership agreements all distributions were to be

pro rata.    Under these circumstances, we conclude that there was

an implied agreement at the time of the transfer of Ms.

Jorgensen’s assets to the partnerships that she would retain the

economic benefits of the property even if the retained rights

were not legally enforceable.

     Respondent makes an alternative argument related to the

legal effect of Gerald’s and Jerry Lou’s dual roles as general

partners of the partnerships and cotrustees of Ms. Jorgensen’s

revocable trust.   Ms. Jorgensen was the sole beneficiary of her

revocable trust during her lifetime.   Under the trust terms she

had access to all trust income and corpus without restriction.

Jerry Lou and Gerald, as cotrustees, had the duty to administer

the trust solely for their mother’s benefit.   Ms. Jorgensen,

through her revocable trust, owned significant interests in JMA-I

and JMA-II, whose general partners were Gerald and Jerry Lou.
                               -39-

     Gerald and Jerry Lou were under a fiduciary obligation to

administer the trust assets, including the JMA-I and JMA-II

partnership interests, solely for Ms. Jorgensen’s benefit; and as

general partners of JMA-I and JMA-II, they had express authority

to administer the partnership assets at their discretion.     Under

these circumstances, we also conclude that Ms. Jorgensen retained

the use, benefit, and enjoyment of the assets she transferred to

the partnerships.

     D.   Conclusion With Respect to Whether the Values of the
          Assets Transferred to JMA-I and JMA-II Are Includable
          in the Value of the Gross Estate

     We conclude that section 2036(a)(1) includes in the value of

the gross estate the values of the assets Ms. Jorgensen

transferred to JMA-I and JMA-II.   Respondent argues in the

alternative that section 2038 requires inclusion in the value of

the gross estate of the values of the assets transferred into the

partnerships.   Because the asset values are included under

section 2036(a)(1), we need not address respondent’s alternative

argument.13


     13
      With respect to JMA-I, the parties stipulated that if we
find that sec. 2036 applies, giving no consideration to Ms.
Jorgensen’s transfers of JMA-I interests made during her
lifetime, the value of a 63.146-percent interest in JMA-I is
includable in the value of her gross estate. The parties did not
stipulate the includable percentage interest in JMA-II. However,
we find that, giving no consideration to Ms. Jorgensen’s
transfers of JMA-II interests during her lifetime, the value of a
79.6947-percent interest in JMA-II is includable in the value of
her gross estate.
                                                   (continued...)
                               -40-

III. Equitable Recoupment

     In 2006 Congress amended section 6214(b) to provide that we

“may apply the doctrine of equitable recoupment to the same

extent that it is available in civil tax cases before the

district courts of the United States and the United States Court

of Federal Claims.”   Pension Protection Act of 2006, Pub. L. 109-

280, sec. 858(a), 120 Stat. 1020; Menard, Inc. v. Commissioner,




     13
      (...continued)
     The estate asserts, although only in objecting to one of
respondent’s proposed finding of facts, that if sec. 2036
applies, it applies only to the assets Ms. Jorgensen held on the
date of her death plus those transfers she made within 3 years of
her death which would be included in the gross estate under sec.
2035(a). We assume the estate is referring to the possibility
that Ms. Jorgensen sufficiently severed her ties to a portion of
the retained assets so that sec. 2036 would not include those
assets in her gross estate.

     The estate’s failure to argue the issue beyond a vague
assertion within an objection to a proposed finding of fact leads
us to conclude that the issue has been waived or abandoned. See
Rule 151(e)(3), (5); Bradley v. Commissioner, 100 T.C. 367, 370
(1993); Money v. Commissioner, 89 T.C. 46, 48 (1987); Stringer v.
Commissioner, 84 T.C. 693, 706 (1985), affd. without published
opinion 789 F.2d 917 (4th Cir. 1986).

     Nevertheless, were the issue not waived or conceded, on the
record before us we would not find that Ms. Jorgensen terminated
a portion of her interest in the partnership assets. The record
indicates that Ms. Jorgensen retained the use, benefit, and
enjoyment of the assets she transferred to the partnerships. See
supra pp. 36-39.
                                -41-

130 T.C. 54, 64 (2008).14   We recently described the doctrine as

follows:

          The doctrine of equitable recoupment is a
     judicially created doctrine that, under certain
     circumstances, allows a litigant to avoid the bar of an
     expired statutory limitation period. The doctrine
     prevents an inequitable windfall to a taxpayer or to
     the Government that would otherwise result from the
     inconsistent tax treatment of a single transaction,
     item, or event affecting the same taxpayer or a
     sufficiently related taxpayer. Equitable recoupment
     operates as a defense that may be asserted by a
     taxpayer to reduce the Commissioner’s timely claim of a
     deficiency, or by the Commissioner to reduce the
     taxpayer’s timely claim for a refund. When applied for
     the benefit of a taxpayer, the equitable recoupment
     doctrine allows a taxpayer to recoup the amount of a
     time-barred tax overpayment by allowing the overpayment
     to be applied as an offset against a deficiency if
     certain requirements are met.

          As a general rule, the party claiming the benefit
     of an equitable recoupment defense must establish that
     it applies. In order to establish that equitable
     recoupment applies, a party must prove the following
     elements: (1) The overpayment or deficiency for which
     recoupment is sought by way of offset is barred by an
     expired period of limitation; (2) the time-barred
     overpayment or deficiency arose out of the same
     transaction, item, or taxable event as the overpayment
     or deficiency before the Court; (3) the transaction,
     item, or taxable event has been inconsistently
     subjected to two taxes; and (4) if the transaction,
     item, or taxable event involves two or more taxpayers,
     there is sufficient identity of interest between the
     taxpayers subject to the two taxes that the taxpayers
     should be treated as one.


     14
      Before the amendment to sec. 6214(b), the Courts of
Appeals that considered whether we may entertain an equitable
recoupment claim split on the question. Compare Estate of
Mueller v. Commissioner, 153 F.3d 302 (6th Cir. 1998), affg. on
other grounds 107 T.C. 189 (1996), with Estate of Branson v.
Commissioner, 264 F.3d 904 (9th Cir. 2001), affg. 113 T.C. 6, 15
(1999).
                               -42-

Menard, Inc. v. Commissioner, supra at 62-63 (citations omitted).

     The estate contends that it is entitled to equitable

recoupment for income taxes paid by Ms. Jorgensen’s children and

grandchildren (JMA-I and JMA-II partners) on sales of stock that

occurred in 2003 through 2006 the values of which we have held

are properly included in the value of Ms. Jorgensen’s gross

estate under section 2036.

     A.   Whether a Refund Is Barred by an Expired Period of
          Limitations

     The children and grandchildren filed their 2003 income tax

returns on or about April 15, 2004.   They filed protective claims

for refund for the years 2003 through 2006.   Respondent rejected

the 2003 claims as untimely.   The claims for 2004 through 2006

have not been ruled on, but they appear timely.15   Therefore, the

first element of the equitable recoupment claim is met only with

respect to income taxes overpaid in 2003.

     B.   Whether the Overpayment Arose out of a Single
          Transaction, Item, or Event

     A claim of equitable recoupment will lie only where the

Government has taxed a single transaction, item, or taxable event

under two inconsistent theories.   Estate of Branson v.



     15
      The parties stipulated that the 2003 claims for refund
were submitted between Apr. 6 and 9, 2008. We presume that the
2004 claims were submitted at the same time. Claims for refund
with respect to the 2004 tax year would have to have been filed
on or before Apr. 15, 2008, assuming the returns were timely
filed. See secs. 6511(a), 6513(a).
                                 -43-

Commissioner, 113 T.C. 6, 15 (1999), affd. 264 F.3d 904 (9th Cir.

2001).    In Estate of Branson, the decedent’s estate included

stock in two closely held corporations.      To pay applicable estate

taxes, the estate sold a portion of the stock.     The stock was

sold for considerably more than its value reported on the estate

tax return.    Under section 1014(a)(1),16 the value of the stock

as declared on the estate tax return was used as its basis for

determining gain from the sale.    The estate did not pay the tax

on the sale but distributed the gain to the estate’s residuary

beneficiary, who paid the tax due.      The Commissioner determined a

deficiency in estate tax on the ground that the closely held

corporation stock was worth substantially more than declared.        In

Estate of Branson v. Commissioner, T.C. Memo. 1999-231, we agreed

with the Commissioner.    Our revaluation of the stock resulted in

an estate tax deficiency.    Since pursuant to section 1014(a) the

same valuation was used to determine the residuary beneficiary’s

gain on the sale of the stock, it followed that the residuary

beneficiary had overpaid her income tax.      Estate of Branson v.

Commissioner, 264 F.3d at 907.

     We have held that the values of the assets Ms. Jorgensen

transferred to JMA-I and JMA-II are included in the value of her


     16
      Sec. 1014 generally provides a    basis for property acquired
from a decedent that is equal to the    value placed upon the
property for purposes of the Federal    estate tax. See Estate of
Branson v. Commissioner, 113 T.C. at    34-35; sec. 1.1014-1(a),
Income Tax Regs.
                                -44-

gross estate.    JMA-I and JMA-II sold some of those assets during

2003, and the partners paid capital gains tax on the proceeds.

The estate argues that the single item in question is the stock

contributed by Ms. Jorgensen to the partnerships and sold by the

partnerships during 2003.    In Estate of Branson, closely held

corporation stock included in the decedent’s gross estate and

then sold by the estate satisfied the single item requirement.

In this case, stock included in Ms. Jorgensen’s gross estate and

sold by the partnerships in 2003 is a single item.    Thus, the

second element of the equitable recoupment claim is met.

     C.   Whether the Single Item Would Be Subjected to Two Taxes
          Inconsistently

     The value of stock contributed by Ms. Jorgensen and sold by

the partnerships in 2003 was included in both the value of Ms.

Jorgensen’s gross estate and her children’s and grandchildren’s

taxable income (to the extent of the gain resulting from the

stock sale).    The inclusion of the item in the gross estate

results in an increase in the stock’s basis in the hands of the

partnership pursuant to section 1014(a).    Increased basis in the

assets results in a decrease of the gain and resulting income tax

on the sale of those assets.    However, the partners’ 2003 claims

for income tax refunds are barred under section 6511(a).

Therefore, the estate tax and income tax have been imposed on the

same item inconsistently.   See Estate of Branson v. Commissioner,

264 F.3d at 917 (“the ‘single transaction’ prerequisite to
                                 -45-

equitable recoupment is satisfied where the same item * * * is

taxed as both the corpus of the estate and income to the

beneficiary”).

       D.   Sufficient Identity of Interest

       The final element of an equitable recoupment claim is that

the taxpayers involved (the estate and the JMA-I and JMA-II

partners) have a sufficient identity of interest so that they

should be treated as a single taxpayer in equity.      Stone v.

White, 301 U.S. 532, 537-538 (1937); Parker v. United States, 110

F.3d 678, 683 (9th Cir. 1997).

       Both Estate of Branson and this case involve the judicial

determination of an estate tax deficiency resulting from the

increased values of securities held by the decedent on the date

of death.    Pursuant to section 1014(a)(1), the value of the

securities used in calculating the estate’s Federal estate tax as

determined by this Court became the basis of those assets after

Ms. Jorgensen’s death.    During 2003 JMA-I and JMA-II sold assets

Ms. Jorgensen had contributed and calculated the gain on sale

with respect to the bases of the assets in Ms. Jorgensen’s hands

at the time they were contributed.      As a result of our

determination, the bases of the assets were increased and it

follows that JMA-I’s and JMA-II’s partners overpaid their income

tax.
                               -46-

     Respondent argues that if we determine the estate is

entitled to equitable recoupment, we should limit the recoupment

to the income taxes paid by Jerry Lou and Gerald, who, pursuant

to Ms. Jorgensen’s will and revocable trust, are ultimately

responsible for the estate tax liability.   The grandchildren are

not liable for the estate tax deficiency.   In Estate of Branson,

the residuary beneficiary, like Gerald and Jerry Lou, was

responsible for the estate tax liability and was the one who

overpaid income tax, thus entitling the estate to equitable

recoupment.   However, the relevant caselaw does not indicate that

the taxpayer who overpaid tax must be the one responsible for the

related deficiency for equitable recoupment to apply.

     We have found that there was an implied agreement that Ms.

Jorgensen would retain control of the assets she contributed to

the partnerships even though she purported to give partnership

interests to her children and grandchildren.   The partnerships

paid her expenses including her Federal and California estate tax

liabilities (as calculated on the estate tax returns).   The

assets were included in her gross estate as if they had not been

transferred to the partnerships.   The goal of Ms. Jorgensen’s

gift program was to reduce the value of her estate; i.e., a

testamentary goal.   Because of the program, the objects of her

bounty, her children and grandchildren, paid income taxes on

assets that were later determined to be properly included in
                                -47-

valuing her gross estate, thus subjecting those assets to

improper double taxation.    Under these circumstances, we find

that there is sufficient identity of interest between Ms.

Jorgensen’s estate and her children and grandchildren.

     It would be inequitable for the assets to be included in the

value of Ms. Jorgensen’s gross estate under section 2036 on the

one hand, and on the other hand for the estate not to recoup the

income taxes her children and grandchildren overpaid on their

sale of those very same assets but are unable to recover in a

refund suit.    Accordingly, the estate is entitled to equitable

recoupment of the 2003 income taxes overpaid by Ms. Jorgensen’s

children and grandchildren as a result of our determination that

the values of the assets Ms. Jorgensen transferred to the

partnerships are included in the value of her gross estate under

section 2036.

     To reflect the foregoing and the concessions of the parties,


                                            An appropriate order will

                                       be issued denying petitioner’s

                                       motions to shift the burden of

                                       proof, and decision will be

                                       entered under Rule 155.
