                          T.C. Memo. 2011-209



                        UNITED STATES TAX COURT



 ESTATE OF CLYDE W. TURNER, SR., DECEASED, W. BARCLAY RUSHTON,
                     EXECUTOR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18911-08.                Filed August 30, 2011.



     Charles E. Hodges II and Rose K. Drupiewski, for petitioner.

     Caroline R. Krivacka and Beth Nunnink, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     MARVEL, Judge:     Respondent determined a Federal estate tax

deficiency of $659,912 with respect to the Estate of Clyde W.

Turner, Sr. (estate).    The primary issue for decision is whether

the value of property Clyde W. Turner, Sr. (Clyde Sr.)

transferred to Turner & Co., a family limited partnership, is
                                - 2 -

included in his gross estate under section 2035, 2036, or 2038.1

We must also decide whether Clyde Sr. made additional taxable

gifts that are included in his gross estate.

                         FINDINGS OF FACT

I.   Background

     Some of the facts have been stipulated.    We incorporate the

stipulation of facts, the first supplemental stipulation of

facts, and the second supplemental stipulation of facts into our

findings by this reference.

     Clyde Sr. resided in Georgia when he died testate on

February 4, 2004.   Clyde Sr.’s longtime accountant, W. Barclay

Rushton (Mr. Rushton), was appointed executor of the estate.

When the petition on behalf of the estate was filed, Mr. Rushton

resided in Georgia.

     Clyde Sr. was survived by his wife of nearly 60 years,

Jewell H. Turner (Jewell).    Clyde Sr. and Jewell had four

children:   Clyde Turner, Jr. (Clyde Jr.), Betty T. Crane

(Betty), Joyce T. Crumley (Joyce), and Janna T. Lovell (Janna).2

Jewell died on July 8, 2007.




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure. All
monetary amounts have been rounded to the nearest dollar.
     2
      For convenience, we will sometimes refer to Clyde Jr.,
Betty, Joyce, and Janna collectively as the Turner children.
                                 - 3 -

II.   Clyde Sr. and His Family

      Clyde Sr. was born in 1920 in Union City, Georgia, and grew

up in White County, Georgia.     He was drafted into the U.S. Army

during World War II and was stationed in the Philippine Islands.

Upon completing his military service, Clyde Sr. returned home to

Georgia and went into the lumber business.

      Clyde Sr. was the oldest of 10 children, and he enjoyed

close, lifelong relationships with his brothers and sisters.     In

the late 1950s Clyde Sr. and his four brothers formed Mt. Yonah

Lumber Co. (Mt. Yonah).   Over the years several members of Clyde

Sr.’s family worked for or became shareholders in Mt. Yonah,

including Clyde Jr. and Clyde Jr.’s two sons, Marc Turner (Marc)

and Travis Turner (Travis).3     Betty, Janna, and Joyce never

worked for Mt. Yonah on a permanent basis, and they have never

owned shares in it.

      Clyde Jr. had a domineering personality, and he adopted a

negative, unpleasant attitude toward his sisters and their

husbands.   Moreover, Clyde Jr.’s involvement with Mt. Yonah

created jealousy and resentment among his sisters and caused them

to suspect that their parents favored Clyde Jr.     Clyde Sr. was

disappointed that his children did not have the kind of close



      3
      As of the trial date, Travis was the chief executive
officer of Mt. Yonah, and Marc had previously worked as an office
manager and general manager at Mt. Yonah. Clyde Jr.’s role at
Mt. Yonah as of the trial date is not clear from the record.
                                  - 4 -

relationship with one another that he enjoyed with his own

siblings.

     In 1993 Joyce died, leaving behind two teenaged sons:      Riley

Crumley III (Trey) and Rory Crumley (Rory).      Rory dropped out of

high school a year or two after his mother’s death and began

abusing illegal drugs.    As of the trial date, he had been

arrested at least 26 times.      Clyde Sr., Jewell, and the Turner

children were aware of Rory’s problems with drugs.      Nevertheless,

Rory maintained a close relationship with Jewell, and Jewell gave

him money from time to time.

III. Clyde Sr.’s and Jewell’s Assets

     A.     Regions Bank Stock

     Clyde Sr. and Jewell acquired Regions Bank stock throughout

their lives, and by 2002 they owned more than 170,000 shares.

Clyde Sr. acquired some of the stock from his father, Ollie

Turner, who was the first depositor to Peoples Bank in Cleveland,

Georgia.    (Peoples Bank became Regions Bank following a series of

mergers in the 1980s and 1990s.)      Jewell also acquired a large

amount of Regions Bank stock from her father, Millard Holcombe,

who served on the board of directors and was the first president

of Peoples Bank.    Clyde Sr. also served on the board of directors

of Peoples Bank.

     Because of the family ties to Regions Bank, the stock had

sentimental value to Clyde Sr. and Jewell, and they sold few, if
                                - 5 -

any, shares over the years.    Moreover, the stock had greatly

appreciated in value, paid dividends for many years, and was a

cornerstone to Clyde Sr.’s and Jewell’s accumulation of wealth.

     B.     Other Assets

     Clyde Sr. and Jewell maintained several bank and investment

accounts, owned their home in Cleveland, Georgia, and owned

investment real estate in North Carolina.    Clyde Sr. occasionally

bought and sold stock, but he did not follow any particular

investment strategy.    Clyde Sr. also invested in real estate from

time to time with Janna’s husband, John Lovell (Mr. Lovell), a

professional real estate developer, and with Larry Bramblett (Mr.

Bramblett), a property developer whom Clyde Sr. met in the 1990s.

     C.     Life Insurance

     On January 7, 1992, Clyde Sr. established the Irrevocable

Trust of Clyde W. Turner, Sr. (Clyde Sr.’s Trust) to own life

insurance policies for the benefit of his children and

grandchildren.    Clyde Jr. and Betty were named trustees of the

trust.    In 2000-2003 Clyde Sr.’s Trust had 12 beneficiaries,

consisting of Clyde Sr.’s then-living children and grandchildren.

     In 1992 Clyde Sr.’s Trust purchased a life insurance policy

from Jackson National Life Insurance Co.    In 1997 Clyde Sr.’s

Trust purchased a life insurance policy from Sun Financial Life.

On a date that is not disclosed in the record, Clyde Sr.’s Trust

purchased a State Farm life insurance policy.
                                - 6 -

     Item 3 of Clyde Sr.’s Trust agreement provided that Clyde

Sr., as well as others, had the right to add to the trust at any

time by, inter alia, depositing money, insurance policies, or any

other property with the trustees.       Clyde Sr. did not transfer

money to the trustees of Clyde Sr.’s Trust to pay the life

insurance premiums in 2000-2003.       Instead, Clyde Sr. paid the

premiums directly from a joint checking account he shared with

Jewell.4    Clyde Sr. made the following premium payments in 2000-

2003:

                                          Premium Payments
              Policy            2000       2001     2002       2003

    Jackson National Life       -0-       $13,645   $13,645   $13,645
    Sun Financial Life        $16,678      16,678    16,678    16,678
    State Farm                  -0-         4,266     -0-       -0-

        Item 3 of Clyde Sr.’s Trust agreement provided that after

each direct or indirect transfer to the trust that was treated as

a gift for Federal gift tax purposes, each beneficiary, i.e.,

each then-living child and grandchild of Clyde Sr., had the

absolute right and power to withdraw from the trust the lesser of

(1) $20,000 ($10,000 if the beneficiary was not married at the

time of the withdrawal), minus the total amounts previously

withdrawn by that beneficiary during the same calendar year, or

(2) the amount of the transfer, divided by the number of



     4
      Clyde Sr. did not report the premium payments as gifts on
his 2002 or 2003 Form 709, United States Gift (and Generation-
Skipping Transfer) Tax Return.
                                - 7 -

beneficiaries.   A beneficiary wishing to make a withdrawal from

Clyde Sr.’s Trust was required to give notice of his exercise of

the withdrawal right within 30 days of the transfer to the trust

giving rise to such right.   Upon timely receipt of a request for

withdrawal, the trustees of Clyde Sr.’s Trust were required to

distribute from the trust the amount necessary to satisfy the

request.   For this purpose, the trustees were authorized to

distribute cash or any other trust property or to borrow against

the cash value of any insurance policy to obtain cash for the

distribution.    There is no evidence in the record that any of the

beneficiaries ever requested or made withdrawals from Clyde Sr.’s

Trust before Clyde Sr.’s death.

     D.    Management of Clyde Sr. and Jewell’s Finances

     In approximately 1994 Marc began helping Clyde Sr. and

Jewell with their bookkeeping and finances.   Sometime in 2001

Clyde Sr. and Jewell called Marc and asked him to meet with them

to discuss their assets.   Marc recalled the meeting as follows:

     I sat down at their kitchen table, where we always met
     for our talks * * *, and my grandparents shared with me
     that they realized that neither one of them was getting
     any younger, and that they realized that their assets
     and their investments were really in a scrambled
     situation, * * * and they asked me to--if I would
     please help them come up with a way to manage their
     assets, to pool their assets together, to come up with
     an idea, a vehicle to come forth and be able to take
     care of business for them.

     Soon after the meeting between Marc and his grandparents,

Marc and Travis contacted an attorney at Stewart, Melvin & Frost,
                               - 8 -

a Gainesville, Georgia, law firm that had previously done estate

planning work for Clyde Sr. and Jewell.    In early 2002 Clyde Sr.,

Jewell, Marc, and Travis met with attorneys from the firm.    Clyde

Sr. was in his early eighties at the time of the meeting, and

Jewell was in her late seventies, but both were in good health.

Clyde Jr., Betty, and Janna did not attend the meeting.

      On March 27, 2002, James Coyle (Mr. Coyle), an attorney from

Stewart, Melvin & Frost, sent a letter to Clyde Sr. and Jewell

regarding formation of a family limited partnership and the

contribution of assets to the partnership.    Mr. Coyle explained

in the letter that “A key element to a gifting plan is the need

of a sound appraisal of the partnership for tax purposes”.

IV.   Turner & Co.

      A.   Formation

      On April 15, 2002, Clyde Sr. and Jewell established Turner &

Co. as a Georgia limited liability partnership by filing a

certificate of limited partnership.    The Agreement of Limited

Partnership of Turner & Company, L.P. (partnership agreement),

provided that Clyde Sr. and Jewell each would own a 0.5-percent

general partnership interest and a 49.5-percent limited

partnership interest.

      After Clyde Sr.’s death, the Turner family held meetings, on

November 5, 2004, and November 19, 2005, to discuss Turner &

Co.’s past performance and future investment plans.    The meetings
                                - 9 -

also included discussions of Clyde Sr.’s estate and the

provisions of his will.5

     B.     Contributions

     In 2002 Clyde Sr. and Jewell each contributed assets to

Turner & Co. with a fair market value of $4,333,671 (total value

$8,667,342).    The list of assets to be contributed was not

finalized until at least July 2002, and the transfers were not

completed until at least December 2002.

     The contributed assets consisted of:    (1) Cash, (2) shares

of Regions Bank common stock, (3) shares of NBOG Bancorporation

stock, (4) shares of Friends Bank stock, (5) shares of Southern

Heritage Bancorp stock, (6) 21 certificates of deposit at

Habersham Bank, (7) one certificate of deposit at Regions Bank,

(8) five certificates of deposit at United Community Bank, (9)

assets held in an account at Morgan Keegan with an account number

ending in 5768,6 (10) assets held in a securities account at

Wachovia with an account number ending in 783,7 (11) assets held



     5
      The record is not clear whether the Turner family held any
meetings to discuss Turner & Co.’s performance before Clyde Sr.’s
death. Although Marc and Betty suggested they did, no objective
evidence corroborates their statements.
     6
      These assets consisted of three annuities, shares of
Alabama Power preferred stock, shares of Colonial Capital Trust
preferred stock, shares of ING Group preferred stock, and 100
shares of Regions Financial stock.
     7
        These assets consisted of preferred stock of Duke Energy
Corp.
                              - 10 -

in a securities account at Wachovia with an account number ending

in 276,8 and (12) assets held in an account at the GMS Group with

an account number ending in 3160.9     Overall, the contributed

property included 154,506 shares of Regions Bank common stock,

which accounted for nearly 60 percent of the value of all

property contributed to Turner & Co.     The Regions Bank stock

contributed to Turner & Co. represented approximately 0.06

percent of Regions Bank’s total outstanding stock.     Clyde Sr. and

Jewell did not contribute to Turner & Co. any interest in an

operating business or in a regularly conducted real estate

activity that required active management.

     The Turner & Co. partnership interests that Clyde Sr. and

Jewell received in exchange for their contributions of property

were proportionate to the fair market value of the assets

contributed.   All of the assets that Clyde Sr. and Jewell

contributed to Turner & Co. were properly titled in the name of

Turner & Co.

     Clyde Sr. and Jewell retained more than $2 million of assets

that were not contributed to Turner & Co., including but not



     8
      These assets consisted of preferred stock of BAC Capital
Trust II, class A shares of Ingles Markets, bonds issued by
Caterpillar Financial Services Corp., and preferred stock of Duke
Energy Corp.
     9
      These assets consisted of cash, 2,000 shares of Regions
Bank stock, bonds issued by Gainesville, Georgia, and bonds
issued by Fulton County, Georgia.
                              - 11 -

limited to their residence in Cleveland, Georgia, investment real

estate in North Carolina, cash and certificates of deposit, and

24,012 shares of Regions Bank stock.   The retained assets,

together with Social Security income, generated annual income of

at least $90,000--more than enough to pay Clyde Sr. and Jewell’s

living expenses.

     C.   Partnership Agreement Provisions

     The partnership agreement listed three general purposes for

creation of Turner & Co.:   (1) To make a profit, (2) to increase

the family’s wealth, and (3) to provide a means whereby family

members can become more knowledgeable about the management and

preservation of the family’s assets.   To facilitate the general

purposes, the partnership agreement listed nine specific purposes

for formation of Turner & Co.:

          (a) To provide for control of family assets within
     one or more entities by providing an orderly succession
     of management and to assure management by the best
     qualified person(s);

          (b) To consolidate or eliminate fractional
     interests in realty and other family assets to promote
     greater sales potential;

          (c) To provide a means whereby gifts can be made
     without creating fractional interests;

          (d) To provide a means whereby family assets can
     be protected against persons outside the family
     acquiring rights or interests in family assets;

          (e) To provide protection of family members
     against future creditors being able to reach family
     assets;
                              - 12 -

          (f) To avoid the loss of family member’s interest
     in family assets as a result of failed marriages;

          (g) To enhance the knowledge and communication of
     family members concerning investment and management of
     family assets;

          (h) To provide structure and procedures to reduce
     the likelihood of deadlock and dispute among family
     members; [and]

          (i) To provide structure and controls to reduce
     the potential of family members transferring their
     interests in the partnership without first offering
     that interest to the other family members.

     The partnership agreement was modeled on a standard form

that Stewart, Melvin & Frost used when drafting partnership

agreements.   Consequently, some of the purposes listed in the

partnership agreement did not apply to the Turner family,10 and

Clyde Sr. and Jewell’s actual purposes for establishing Turner &

Co. were not necessarily reflected in the partnership agreement.

Nevertheless, section 1.3 of the partnership agreement provided,

inter alia, that “The General Partner shall effectuate the

purposes of the Partnership and operate it in accordance with the

purposes of the Partnership and in accordance with its fiduciary

duties and the rights and powers granted it in this Agreement.”

     Other pertinent provisions of the partnership agreement were

as follows.


     10
      For example, the partnership agreement provides that one
of the goals of the partnership is to consolidate or eliminate
fractional interests in realty. However, Clyde Sr. and Jewell
did not contribute any interests in real property, fractional or
otherwise, to Turner & Co.
                             - 13 -

•   Section 4.1 provided that “the General Partner shall be the

    sole manager of the Partnership and have sole authority in

    the conduct and management of the business of the

    Partnership.”

•   Section 4.4 provided that the general partner would manage

    the partnership in a businesslike manner and that the

    general partner shall maintain complete and accurate books

    and records with respect to the partnership and furnish

    reports to the limited partners.

•   Section 4.6 provided that the general partner, and not the

    partnership, would pay all operating expenses of the

    partnership (other than interest expenses) including but not

    limited to organizational expenses, legal fees, investment

    fees, management charges, accounting fees, and other

    operating costs.   In consideration of the general partner’s

    payment of such obligations, the general partner was

    entitled to a special allocation of income in an amount to

    be determined in good faith by the general partner.    In

    addition, the general partner was entitled to “a reasonable

    management charge”.11




    11
      Notwithstanding sec. 4.6 of the partnership agreement,
Clyde Sr. and Jewell chose not to pay Turner & Co. expenses from
their personal funds but chose to receive a $2,000-per-month
management fee. Turner & Co. treated the monthly management fees
as nondeductible distributions rather than deductible expenses.
                            - 14 -

•   Section 4.7 provided that in the event of death or

    incapacity of either of the general partners, i.e., Clyde

    Sr. or Jewell, the surviving general partner would become

    the sole general partner.   Thereafter, in the event of the

    death or incapacity of the surviving general partner, Marc

    and Travis, or the survivor between them, would become the

    new general partner.

•   Section 8.1 provided:

    The net cash flow of the Partnership for each tax year
    shall be distributed to each Limited Partner * * * and
    General Partner pro rata to the extent of each
    Partner’s federal and state income tax liability
    attributable to the taxable income of the Partnership.
    * * * The balance of the net cash flow, if any, may be
    distributed to each Limited Partner and General Partner
    pro rata at such times and in such amounts as
    determined by the General Partner in its sole and
    absolute discretion, considering the investment and
    reinvestment opportunities and cash needs of the
    partnership. [Emphasis added.]

•   Section 8.2 provided that the partnership could make

    distributions in kind of partnership assets, in the

    sole and absolute discretion of the general partner, in

    accordance with and pursuant to section 1.704-

    1(b)(2)(iv)(e)(1), Income Tax Regs.

•   Section 9.1 provided that the general partner could

    terminate or dissolve the partnership, but only after

    the sale or disposition of all or substantially all

    partnership assets.
                            - 15 -

•    Section 9.2 provided that upon a termination or

     dissolution of the partnership the general partner

     would distribute the proceeds from the sale or

     distribution of partnership assets in the following

     order of priority:   (1) Payments to creditors, in the

     order of priority provided by law; (2) payments to

     limited partners with respect to their share of

     partnership profits; (3) payments to limited partners

     with respect to their capital contributions; (4)

     payments to the general partners other than for capital

     and profits; (5) payments to the general partners with

     respect to profits; and (6) payments to the general

     partners with respect to capital.

•    Section 11.1 provided that the general partner could

     amend the partnership agreement at any time without the

     consent or approval of the limited partners.

     D.   Management

     On or about April 24, 2002, Clyde Sr. and Jewell, as the

general partners of Turner & Co., signed a Management Fee

Agreement of Turner & Company, L.P. (management fee agreement).

The management fee agreement provided that the general partners

would allocate $500 per month of their management fee to each of

Marc and Travis in exchange for Marc’s and Travis’ providing

daily management services to Turner & Co.   The management fee
                               - 16 -

agreement described Marc’s and Travis’ daily management services

as “any and all tasks and duties assigned to Marc and Travis by

the General Partner.”

     Turner & Co. made payments to Marc and Travis of $2,500 each

in 2002, $5,500 each in 2003, and $7,000 each in 2004.   Clyde Sr.

signed those checks on behalf of Turner & Co. through September

2003.12

     In January 2003 Clyde Sr. submitted a statement to Mr.

Rushton that the payments to Marc and Travis should be classified

as “a gift of appreciation.”   After January 2003 Clyde Sr. wrote

the word “gift” on the memo line of each of the checks he wrote

to Marc and Travis.   Turner & Co. did not treat the payments to

Marc and Travis as deductible expenses and did not issue a Form

W-2, Wage and Tax Statement, or a Form 1099-MISC, Miscellaneous

Income, to Marc or Travis in 2002-04.   Marc and Travis did not

report the payments as income on their 2002-04 Federal income tax

returns.

     E.    Gifts of Limited Partnership Interests and Amendments
           to Partnership Agreement

     On December 31, 2002, and January 1, 2003, Clyde Sr. and

Jewell gave limited partnership interests in Turner & Co. to

their three children and to Joyce’s children.   According to the


      12
      Clyde Sr. became seriously ill and was hospitalized in
October 2003, and all of the checks written to Marc and Travis
thereafter were signed by Marc, Travis, or Jewell, or some
combination thereof.
                                 - 17 -

gift transfer documents, the aggregate fair market values of the

partnership interests transferred on December 31, 2002, and

January 1, 2003, were $1,652,315 and $474,315, respectively.     The

values were derived from a valuation by Willis Investment Counsel

dated May 18, 2004, and were added to the gift transfer documents

on or after that date.   No values appeared on the gift transfer

documents when the documents were signed.

     Because of their concerns about Rory’s drug addiction and

legal problems, Clyde Sr. and Jewell established the Irrevocable

Trust f/b/o Rory Crumley (Rory’s Trust) to own assets for Rory’s

benefit.    Habersham Bank was appointed trustee of Rory’s Trust.

Rory’s limited partnership interest in Turner & Co. was

immediately transferred to Rory’s Trust.

     Turner & Co. had the following ownership structure before

and after the gifts of limited partnership interests:

                             Percentage Ownership Interest
     General Partner:     12/30/2001    12/31/2002    1/1/2003
                             1
         Clyde Sr.            0.5            0.5          0.5
         Jewell               0.5            0.5          0.5

     Limited Partner:

         Clyde Sr.           49.5           32.6        27.8
         Jewell              49.5           32.6        27.8
         Clyde Jr.            0.0            8.4        10.8
         Betty                0.0            8.4        10.8
         Janna                0.0            8.4        10.8
         Trey                 0.0            4.3         5.5
         Rory’s Trust         0.0            4.3         5.5
     1
      All percentage figures have been rounded to the nearest one-
tenth of 1 percent.
                               - 18 -

     On October 13, 2004, Mr. Rushton filed gift tax returns on

behalf of the estate with respect to Clyde Sr.’s transfers of

limited partnership interests in Turner & Co. to his children and

grandchildren.   The values of the gifts reported on the returns

were derived from the valuation by Willis Investment Counsel

dated May 18, 2004.   On the Forms 709 the estate did not make

gift-splitting elections under section 2513.

     One day before the first of the transfers, on December 30,

2002, Clyde Sr., Jewell, Clyde Jr., Betty, and Janna signed an

amendment to the partnership agreement.   Betty and Janna insisted

on the amendment because they were uncomfortable with Marc’s and

Travis’ becoming the successor general partners of Turner & Co.

and playing such a large role in the partnership.

     The amendment provided, in relevant part, that Clyde Jr.,

Janna, and Betty would become the successor general partners of

Turner & Co. following the death of the last to die of Clyde Sr.

and Jewell.   The amendment further provided that Clyde Jr. could

appoint Marc or Travis, or both, to serve as a general partner in

his place.    However, if Clyde Jr. appointed Marc and Travis they

would have only one vote combined, while Betty and Janna would

have one vote each.   Finally, the amendment provided that at any

time following the death of the last to die of Clyde Sr. and

Jewell, any of the following individuals could require Turner &

Co. to undergo a tax-free reorganization to create five separate
                               - 19 -

partnerships:   Clyde Jr., Betty, Janna, Trey, and Habersham Bank,

as trustee for Rory’s Trust.   In that event, the amendment

required that Turner & Co.’s liquid assets be divided among the

separate partnerships pro rata and that any illiquid assets be

sold and the proceeds divided pro rata.13

     F.   Partnership Operations

     In 2002-04 Turner & Co. maintained investment accounts at

the GMS Group, Morgan Keegan, and Wachovia Securities and a

checking account at United Community Bank.     Turner & Co.’s GMS

Group account statements reflect no change in the securities held

between December 2002 and Clyde Sr.’s death in February 2004.

The Morgan Keegan account statements reflect that dividends paid

to Turner & Co. with respect to the assets held in that account

were reinvested in a money market fund between January and

September 2003.   The Morgan Keegan account statements also

reflect a handful of asset purchases and sales.     For example, in

January 2003 Turner & Co. purchased 1,941 shares of Ford Motor

Credit preferred stock for $49,981.     In June 2003 Turner & Co.

purchased 10,000 additional shares of Ford Motor Credit preferred

stock for a total purchase price of $259,000.     Turner & Co. also

purchased $250,000 of GMAC Notes in August and September 2003,



     13
      On Sept. 18, 2006, Jewell authorized the establishment of
four separate partnerships: One for each of her surviving
children and one for Trey and Rory. Turner & Co. was dissolved
effective Jan. 8, 2009.
                              - 20 -

and $50,000 of General Electric notes on September 11, 2003.

Turner & Co. did not make any purchases or sales in the Morgan

Keegan account between October 2003 and Clyde Sr.’s death.

Turner & Co.’s Wachovia Securities account statements reflect a

purchase of $5,000 of GMAC Notes on December 26, 2002,14 $2,500 of

Morgan Stanley preferred stock on February 22, 2003, $5,000 of

Ford Motor preferred stock on March 6, 2003, and $14,500 of

Suburban Propane stock on June 13, 2003.   Turner & Co.’s Wachovia

Securities account statements do not reflect any other purchases

or sales in 2002-04 before Clyde Sr.’s death.   Turner & Co. did

not make any trades in any of its investment accounts between

October 2003, when Clyde Sr. became seriously ill, and his death

in February 2004.

     Turner & Co. did not sell any Regions Bank stock in 2002-04

because Clyde Sr. and Jewell had a sentimental attachment to the

stock and Marc and Travis could not convince them to sell it.

Regions Bank paid cash dividends with respect to its stock in

2002-04, and Turner & Co. invested most or all of the dividends

in money market funds.




     14
      The purchase of $5,000 of GMAC Notes resulted in a
negative cash balance in the account. The Wachovia Securities
account statement reflects receipt of $5,000 on Jan. 3, 2003. On
Jan. 9, 2003, Turner & Co. wrote a check to Clyde Sr. for $5,000.
The memo line of the check states that it relates to “Wachovia-
General Motors”.
                                - 21 -

     Turner & Co.’s checking account statements reflect multiple

payments to Stewart, Melvin & Frost in 2002-04.    Most of the

payments related to legal work performed by the law firm for

Turner & Co.   However, at least some of the payments related to

legal services provided to Clyde Sr. and Jewell with respect to

their estate planning.

     In 2002 and 2003 Turner & Co. participated in two real

estate transactions.    On August 23, 2002, Turner & Co., Mr.

Lovell, and Mr. Bramblett purchased adjoining parcels of land in

Jackson County, Georgia (the Jackson County property).    Mr.

Bramblett found the Jackson County property and did all the

legwork necessary to get the property ready for sale.    Mr.

Lovell’s role in the deal was to find a developer to purchase the

property.

     The Jackson County property consisted of 71.25 acres of land

with improvements.    The total purchase price for the Jackson

County property was $399,011.    To finance the purchase, Turner &

Co. borrowed $171,025 from United Community Bank.    The loan was

secured by two certificates of deposit owned by Turner & Co.

Turner & Co. used partnership assets to fund the balance of the

purchase price.   Mr. Lovell and Mr. Bramblett each signed a

security deed notice for $100,224, representing their portions of

the purchase price.    Also on August 23, 2002, Turner & Co., Mr.

Lovell, and Mr. Bramblett sold a 22.6-percent interest in the
                              - 22 -

Jackson County property for a profit to Mahmoud Mohamed (Mr.

Mohamed).

     On September 9, 2002, Clyde Sr. paid Turner & Co.’s $171,543

outstanding debt to United Community Bank from his personal

checking account.   Neither Clyde Sr. nor Turner & Co. executed a

written agreement regarding Clyde Sr.’s payment of the

partnership’s debt.   Marc and Travis did not inform Turner &

Co.’s accountant, Sally Walden-Crowe (Ms. Walden-Crowe), or

anyone else at her firm that Clyde Sr. had personally repaid a

partnership loan.   Ms. Walden-Crowe, who was gravely ill and was

out of the office for several months, did not learn that Clyde

Sr. had repaid the loan until October 2003, at which point she

updated Turner & Co.’s general ledger to reflect a $171,543 debt

owed to Clyde Sr.

     On February 17, 2003, Turner & Co., Mr. Lovell, Mr.

Bramblett, and Mr. Mohamed sold the Jackson County property for

$605,642.   Mr. Bramblett and Mr. Lovell used their shares of the

proceeds to repay the security deed notes, plus accrued interest.

     On February 5, 2003, Turner & Co., Mr. Lovell, and Mr.

Bramblett purchased 17.01 acres on Lake Hartwell (the Lake

Hartwell property) in Hart County, Georgia, for $363,188.    Once

again, Mr. Bramblett found the property and did all the legwork

necessary to prepare the property for sale, and Mr. Lovell’s role

was to find a developer to purchase the property.
                                - 23 -

     Turner & Co. was unable to obtain a loan by the date of the

closing.   As a result, Clyde Sr. attended the closing and wrote a

personal check for $363,188 to fund the purchase.     The following

day, Turner & Co. received a loan disbursement of $363,238 from

Habersham Bank and immediately repaid Clyde Sr.     Turner & Co.

received Deeds to Secure Debt from Mr. Lovell and Mr. Bramblett

in the amounts of $127,729 and $107,729, respectively, to secure

their shares of the purchase price.      Mr. Bramblett paid $20,000

for the removal of a boat dock on the Lake Hartwell property.      On

February 18, 2003, Turner & Co. used its share of the proceeds

from the sale of the Jackson County property to repay the loan to

Habersham Bank.

     The Lake Hartwell property was developed into a subdivision

consisting of five 1.25-acre lots with lake access and one 10-

acre lot with no lake access.    Turner & Co. sold one of the 1.25-

acre lots on June 2, 2003, for $92,500, and Mr. Lovell’s and Mr.

Bramblett’s shares of the proceeds were applied to reduce their

outstanding notes to Turner & Co.    Two additional 1.25-acre lots

were sold on June 20, 2003, and Mr. Lovell’s and Mr. Bramblett’s

shares of the proceeds were again applied to reduce their debt to

Turner & Co.   Finally, on December 28, 2004, Turner & Co. sold

the 10-acre lot and another 1.25-acre lot for $180,000, and Mr.

Lovell’s and Mr. Bramblett’s shares of the proceeds were applied
                                   - 24 -

to satisfy their liability to Turner & Co., including accrued

interest.15

     G.         Partnership Payments to Clyde Sr. and Jewell

     Turner & Co. made the following payments to Clyde Sr. in

2002:

                   Date                     Amount

                   8/26                     $2,000
                   9/10                      3,000
                   9/13                      6,500
                   9/23                      2,000
                   9/30                      2,000
                   10/1                     26,000

                     Total                  41,500


Turner & Co. did not make any payments to Jewell in her capacity

either as a general partner or as a limited partner, or to any

other limited partner in 2002.        The 2002 Schedules K-1, Partner’s

Share of Income, Credits, Deductions, etc., reflected

distributions to Clyde Sr., as general partner, of $235; Jewell,

as general partner, of $235; Clyde Sr., as limited partner, of

$23,277; and Jewell, as limited partner, of $23,276.16




        15
             The remaining 1.25-acre lot was sold on May 13, 2005.
        16
      We infer that the $5,500 paid to Marc and Travis in 2002
was treated as a distribution to Clyde Sr. and Jewell, which
would help explain the disparity between the $41,500 paid to
Clyde Sr. and Jewell in 2002 and the $47,023 of total
distributions reported on Turner & Co.’s 2002 Form 1065, U.S.
Return of Partnership Income. The record does not explain the
additional $23 disparity.
                             - 25 -

     Turner & Co. made the following payments to Clyde Sr. and

Jewell in 2003:17

     Date       Payee         Amount            Memo

     1/9       Jewell         $2,000   Draw
     1/13      Clyde Sr.       5,000   Wachovia General Motors
               Clyde Sr.      46,170   Estimated Federal & State
                                         taxes
     1/30      Jewell          2,000   Draw
     2/22      Clyde Sr.      13,645   Jackson National Life
     3/1       Jewell          2,000   Draw
     4/1       Jewell          2,000   Draw
     5/1       Jewell          2,000   Draw
     6/2       Jewell          2,000   June draw
     7/1       Jewell          2,000   July draw
     9/2       Jewell          2,000   Monthly draw
     9/29      Jewell          2,000   October draw
     11/3      Jewell          2,000   November draw
     12/1      Jewell          2,000   December draw
       Total                  86,815




     17
      The listed payments do not include $363,188 Turner & Co.
paid to Clyde Sr. on Feb. 6, 2003, to reimburse him for the
personal funds he used to purchase the Lake Hartwell property.
                               - 26 -

     Turner & Co. did not make any payments to any other limited

partners in 2003.   As indicated above, the $46,170 payment to

Clyde Sr. on January 13, 2003, was intended to pay Federal and

State tax attributable to Clyde Sr.’s and Jewell’s income from

Turner & Co.18   The $13,645 payment to Clyde Sr. on February 22,

2003, was intended to pay the annual premium for the Jackson

National Life insurance policy owned by Clyde Sr.’s Trust for the

benefit of Clyde Sr.’s children and grandchildren.

     Turner & Co.’s 2003 Form 1065 did not report any

distributions to any of the general or limited partners.

Instead, Turner & Co. took the position that all payments to

Clyde Sr. and Jewell in 2003 reduced the balance of the loan that

was recorded on the partnership books to reflect Clyde Sr.’s

payment of Turner & Co.’s $171,542 debt to United Community Bank.




     18
      On their 2002 Federal income tax return, Clyde Sr. and
Jewell reported total income from Turner & Co. of $91,477.
                                  - 27 -

       Turner & Co. made the following payments in 2004:

 Date                Payee          Amount            Memo

 1/1        Jewell                  $2,000   January draw
 2/2        Jewell                   2,000   February 2004 draw
 3/1        Jewell                   2,000   March draw
 3/31       Jewell                   2,000   April draw
 4/8        IRS                      5,312   Irrevocable trust--Rory
                                               Crumley
 4/8        State of Georgia           911   Irrevocable trust--Rory
                                               Crumley
 4/9        Jewell                  58,000   Draw to purchase car
 4/12       Estate of Clyde Sr.     32,152
 4/12       Jewell                  32,152
 4/12       Clyde Jr.               12,267
 4/12       Trey                     6,223
 4/16       Janna Lovell            12,267   Cover 2003 taxes
 4/19       Betty                   12,267   Cover 2003 taxes
 5/1        Jewell                   2,000   May draw
 5/20       Clyde Jr.               16,000   Distribution
 5/20       Janna                   16,000   Distribution
 5/20       Trey                     8,000   Distribution
 5/20       Rory’s Trust             8,000   Distribution
 5/20       Betty                   16,000   Distribution
 5/29       Jewell                   2,000   June draw
 6/29       Jewell                   2,000   July draw
 8/2        Jewell                   2,000   August draw
 9/1        Jewell                   2,000   September draw
 10/1       Jewell                   2,000   October draw
 11/1       Jewell                   2,000   Draw
 11/4       Jewell                  94,308
 11/4       Clyde Jr.               18,000
 11/4       Janna                   18,000
 11/4       Betty                   18,000
 11/4       Trey                     9,000
 11/4       Rory’s Trust             9,000
 11/8       Clyde Jr. and            4,170
              Betty, cotrustees
 12/1       Jewell                   2,000   Draw


V.     Clyde Sr.’s Death

       Clyde Sr. became seriously ill and was hospitalized in

October 2003.    He died on February 4, 2004.       The estate obtained
                              - 28 -

an appraisal of the 0.5-percent general partnership interest and

the 27.8-percent limited partnership interest in Turner & Co.

that Clyde Sr. owned at his death.     On Schedule F, Other

Miscellaneous Property Not Reportable Under Any Other Schedule,

of the estate tax return, the estate reported the general and

limited partnership interests had values of $30,744 and

$1,578,240, respectively.

     On or about August 4, 2008, respondent issued a notice of

deficiency to the estate in which he determined that the values

of the assets Clyde Sr. transferred to Turner & Co. were included

in his gross estate under sections 2035, 2036, and 2038.      In the

notice of deficiency respondent determined that Turner & Co.’s

net asset value as of February 4, 2004, was $9,488,713 and that

one-half of that amount was included in Clyde Sr.’s gross estate.

The parties now appear to agree that Turner & Co.’s net asset

value as of February 4, 2004, was as follows:19




     19
      In the reply brief petitioner does not object to
respondent’s proposed finding of fact regarding Turner & Co.’s
net asset value as of Feb. 4, 2004.
                              - 29 -

           Asset                                Value


      Cash and cash equivalents               $2,390,023
      Regions Bank stock                       5,655,692
      Other common stock (public)                 26,758
      Other common stock (private)                 4,810
      Preferred stock                            477,083
      Corporate bonds                            310,069
      Municipal bonds                             68,731
      Annuities                                  459,503
      Notes receivable                            69,518
      Real estate                                118,333
        Total                                  9,580,520



     In the notice of deficiency respondent also reduced the

total adjusted taxable gifts reported on the Form 706, United

States Estate (and Generation Skipping Transfer) Tax Return, by

the amounts of Clyde Sr.’s gifts of limited partnership interests

to his children and grandchildren.     Respondent included in the

total adjusted taxable gifts the premiums paid on life insurance

policies owned by Clyde Sr.’s Trust for the benefit of Clyde

Sr.’s children and grandchildren.

                              OPINION

I.   Burden of Proof

     In general, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that they

are incorrect.   Rule 142(a); INDOPCO, Inc. v. Commissioner, 503

U.S. 79, 84 (1992); Welch v. Helvering, 290 U.S. 111, 115 (1933).

However, if in any court proceeding a taxpayer introduces

credible evidence with respect to any factual issue relevant to

ascertaining the taxpayer’s liability for any tax imposed by
                                - 30 -

subtitle A or B of the Internal Revenue Code and meets certain

other requirements, the burden with respect to that factual issue

shifts to the Commissioner.    Sec. 7491(a).

      Petitioner argues that section 7491(a) shifts the burden to

respondent because petitioner has introduced credible evidence

with respect to every factual issue.     Respondent counters that

section 7491(a) does not apply because petitioner did not comply

with respondent’s reasonable requests for information during

informal discovery, which necessitated the use of formal

discovery procedures.    We need not decide whether section 7491(a)

applies to the material factual issues in this case because our

resolution of the issues is based on the preponderance of the

evidence rather than on the allocation of the burden of proof.

See Knudsen v. Commissioner, 131 T.C. 185, 189 (2008).

II.   Section 2036

      Section 2001(a) imposes a tax “on the transfer of the

taxable estate of every decedent who is a citizen or resident of

the United States.”     The taxable estate, in turn, is defined as

“the value of the gross estate”, less applicable deductions.

Sec. 2051.   Section 2031(a) provides that the gross estate

includes “all property, real or personal, tangible or intangible,

wherever situated”, to the extent provided in sections 2033

through 2046.
                              - 31 -

     Section 2033 broadly provides that the value of the gross

estate includes the value of all property to the extent of the

decedent’s interest in that property at the time of death.

Sections 2034 through 2036 require inclusion in the gross estate

of several specific classes of assets.    Section 2036(a), which is

one such specific section, provides:

     SEC. 2036.   TRANSFERS WITH RETAINED LIFE ESTATE.

          (a) General Rule.--The value of the gross estate
     shall include the value of all property to the extent
     of any interest therein of which the decedent has at
     any time made a transfer (except in case of a bona fide
     sale for an adequate and full consideration in money or
     money’s worth), by trust or otherwise, under which he
     has retained for his life or for any period not
     ascertainable without reference to his death or for any
     period which does not in fact end before his death--

               (1) the possession or enjoyment of, or
          the right to the income from, the property,
          or

               (2) the right, either alone or in
          conjunction with any person, to designate the
          persons who shall possess or enjoy the
          property or the income therefrom.

The purpose of section 2036(a) is to include in a decedent’s

gross estate the values of inter vivos transfers that were

“essentially testamentary” in nature.    See United States v.

Estate of Grace, 395 U.S. 316, 320 (1969) (interpreting section

811(c)(1)(B) of the Internal Revenue Code of 1939, a predecessor

to section 2036).   The Supreme Court has defined as “essentially

testamentary” those “transfers which leave the transferor a

significant interest in or control over the property transferred
                               - 32 -

during his lifetime.”   Id.   Courts have held that “Section 2036

describes a broad scheme of inclusion in the gross estate, not

limited by the form of the transaction, but concerned with all

inter vivos transfers where outright disposition of the property

is delayed until the transferor’s death.”    Guynn v. United

States, 437 F.2d 1148, 1150 (4th Cir. 1971).

     Section 2036(a) applies when three conditions are satisfied:

(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 that he did not relinquish before his death.

Sec. 2036(a); Estate of Bongard v. Commissioner, 124 T.C. 95, 112

(2005).   If these conditions are met, the full value of the

transferred property is included in the value of the decedent’s

gross estate.   Estate of Bongard v. Commissioner, supra at 112.

We now turn to consideration of each of these three conditions.

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

     Clyde Sr. made an inter vivos transfer of property when he

transferred assets to Turner & Co. in exchange for a 0.5-percent

general partnership interest and a 49.5-percent limited

partnership interest.
                                - 33 -

     B.   Whether the Transfer Was a Bona Fide Sale for Adequate
          and Full Consideration

     Congress excepted from section 2036(a) any transfer of

property otherwise subject to that section that is a bona fide

sale for adequate and full consideration (the bona fide sale

exception).     Estate of Bongard v. Commissioner, supra at 113.

The applicability of the bona fide sale exception depends on two

requirements:    (1) A bona fide sale, meaning an arm’s-length

transaction,20 and (2) adequate and full consideration.    See id.

at 114; Estate of Harper v. Commissioner, T.C. Memo. 2002-121.

In the context of a family limited partnership the bona fide sale

exception is satisfied where the record establishes the existence

of a legitimate and significant nontax reason for creation of the

family limited partnership and the transferors received

partnership interests proportionate to the value of the property

transferred.    Estate of Bongard v. Commissioner, supra at 118

(citing Estate of Stone v. Commissioner, T.C. Memo. 2003-309, and

Estate of Harrison v. Commissioner, T.C. Memo. 1987-8).    The

objective evidence must establish that the nontax reason was a

significant factor that motivated the partnership’s creation.



     20
      An arm’s-length transaction is not limited to a
transaction between unrelated parties. See Estate of Bongard v.
Commissioner, 124 T.C. 95, 122-123 (2005). However, where the
parties are related we subject the transaction to a higher level
of scrutiny, and we analyze whether the terms and conditions of
the transaction were the same as if the transaction had been
between unrelated parties. See id. at 123.
                               - 34 -

See id.; Estate of Harper v. Commissioner, supra; Estate of

Harrison v. Commissioner, supra.    “A significant purpose must be

an actual motivation, not a theoretical justification.”     Estate

of Bongard v. Commissioner, supra at 118.

     We analyze the bona fide sale exception under 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; see also Estate of Jorgensen v.

Commissioner, T.C. Memo. 2009-66, affd. 107 AFTR 2d 2011-2069,

2011-1 USTC par. 60,619 (9th Cir. 2011).

          1.     Whether the Transaction Was a Bona Fide Sale

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

must determine whether the record supports a finding that Clyde

Sr. had a legitimate and significant nontax reason for forming

Turner & Co.   Petitioner argues that Clyde Sr. had several nontax

reasons for creating Turner & Co.    Respondent argues that tax

savings were the primary motivation for the transfer.

     The Turner & Co. partnership agreement lists three general

reasons and nine specific reasons for the formation of the

partnership.   However, the reasons listed in the partnership

agreement were taken from a form partnership agreement and do not

necessarily reflect Clyde Sr. and Jewell’s actual reasons for
                                - 35 -

establishing Turner & Co.21    In any event, we do not simply rely

on a list of reasons.    See Estate of Hurford v. Commissioner,

T.C. Memo. 2008-278.    Instead, we examine the evidence to see

whether any of the asserted nontax reasons was a significant

factor in creating the partnership.      See id.

     Petitioner argues that Clyde Sr. and Jewell created Turner &

Co. for at least one of the following legitimate and significant

nontax reasons:

     (1) To consolidate their assets for management purposes
     and allow someone other than themselves or their
     children to maintain and manage the family’s assets for
     future growth pursuant to more active and formal
     investment management strategy; (2) to facilitate
     resolution of family disputes through equal sharing of
     information; and (3) to protect the family assets and
     Jewell from Rory, and protect Rory from himself.

The objective facts in the record fail to establish that any of

these reasons was a legitimate and significant reason for

formation of Turner & Co.

                  a.   Asset Consolidation and Centralized
                       Management Pursuant to a Formal Strategy

     Consolidated asset management may be a legitimate and

significant nontax purpose.     Estate of Schutt v. Commissioner,

T.C. Memo. 2005-126; see also Estate of Black v. Commissioner,



     21
      For example, the partnership agreement states that one of
the purposes of Turner & Co. was to consolidate or eliminate
fractional interests in realty and other family assets. In fact,
Clyde Sr. and Jewell did not contribute any real property to
Turner & Co., and all of the contributed property was easily
divisible.
                              - 36 -

133 T.C. 340, 371 (2009).   However, consolidated asset management

generally is not a significant nontax purpose where a family

limited partnership is “just a vehicle for changing the form of

the investment in the assets, a mere asset container.”     Estate of

Erickson v. Commissioner, T.C. Memo. 2007-107; see also Estate of

Schutt v. Commissioner, supra (“the mere holding of an untraded

portfolio of marketable securities weighs negatively in the

assessment of potential nontax benefits available as a result of

a transfer to a family entity” (citing Estate of Thompson v.

Commissioner, 382 F.3d 367, 380 (3d Cir. 2004))); Estate of

Harper v. Commissioner, supra (“Without any change whatsoever in

the underlying pool of assets or prospect for profit * * * there

exists nothing but a circuitous ‘recycling’ of value.”).

     Most of the cases in which we have held that consolidated

asset management is a legitimate nontax purpose have involved

assets requiring active management or special protection.     Estate

of Black v. Commissioner, supra at 371 (large bloc of voting

stock in closely held corporation); Estate of Mirowski v.

Commissioner, T.C. Memo. 2008-74 (patent royalties and related

investments); Estate of Stone v. Commissioner, supra (closely

held business); see also Kimbell v. United States, 371 F.3d 257

(5th Cir. 2004) (working oil and gas interests).

     In Estate of Schutt v. Commissioner, supra, we held that the

formation of a family limited partnership to perpetuate the
                                - 37 -

decedent’s buy-and-hold investment philosophy was a legitimate

and significant nontax purpose even where active management was

not intended, where the record established that the decedent’s

primary concern was perpetuating his investment philosophy and

the family limited partnership allowed him to achieve his

objective.    Similarly, in Estate of Black v. Commissioner, supra

at 371, we held that consolidating a family’s interest in a

closely held corporation was a significant nontax purpose, where

creation of the family limited partnership allowed the stock,

which represented a potential swing vote, to be voted as a bloc;

protected the stock from creditors; and prevented family members

from disposing of the stock imprudently.    On the other hand, in

Estate of Erickson v. Commissioner, supra, we held that

centralizing management of family assets and giving management

responsibility to the decedent’s daughter were not legitimate and

significant nontax purposes, where the transferred property

consisted mainly of passive assets, the daughter already had

significant management responsibilities with respect to the

assets, and creation of the family limited partnership did not

afford greater creditor protection or further any other nontax

purpose.     See also Estate of Thompson v. Commissioner, supra at

378-380; Estate of Harper v. Commissioner, T.C. Memo. 2002-121.

     Unlike the decedent in Estate of Black v. Commissioner,

supra, neither Clyde Sr. individually nor his family collectively
                               - 38 -

owned a significant amount of stock in an operating business that

Clyde Sr. or Jewell contributed to the partnership.22   Clyde Sr.

and Jewell owned passive investments rather than a business

requiring active management.   Petitioner does not dispute that

Clyde Sr. and Jewell contributed only passive assets to Turner &

Co.   More specifically, Clyde Sr. and Jewell contributed the

following assets to Turner & Co. with value totaling

approximately $8,667,342 (or $4,333,671 each):   Cash, 152,406

shares of Regions Bank stock, 100 shares of NBOG Bancorporation

stock, 100 shares of Friends Bank stock, 250 shares of Southern

Heritage Bancorp stock, 21 certificates of deposit at Habersham

Bank, a certificate of deposit at Regions Bank, five certificates

of deposit at United Community Bank, and assets held in four

investment accounts.   Clyde Sr.’s and Jewell’s contributions from

the mentioned four investment accounts consisted of 2,100 shares

of Regions Bank stock, preferred stock of four companies (of

which two were power companies), bonds, and three variable

annuities.23   In short, the contributed assets consisted of

marketable securities (bank stocks and energy stocks, mostly

preferred stock), fixed income investments (bonds and annuities),


      22
      Although Clyde Sr. and Jewell contributed more than
150,000 shares of Regions Bank stock to Turner & Co., the
transferred shares represented less than one-tenth of 1 percent
of Regions Bank’s total outstanding shares.
      23
      Around the time of the transfer the value of the annuities
totaled $407,375.
                              - 39 -

cash, and certificates of deposit.     Unlike the partnership assets

involved in Estate of Mirowski v. Commissioner, supra, and Estate

of Stone v. Commissioner, T.C. Memo. 2003-309, the Turner & Co.

assets required no active management or special protection.

Moreover, unlike the decedents in those cases, Clyde Sr. did not

have a unique or distinct investment philosophy that he hoped to

perpetuate.   On the contrary, according to petitioner, Clyde

Sr.’s lack of a coherent investment plan was one of the primary

reasons for the formation of Turner & Co.

     Petitioner points to Turner & Co.’s real estate activity to

suggest that Clyde Sr. and Jewell contributed passive assets to

provide Marc and Travis with the ability to start an active and

profitable real estate development business.    Petitioner contends

that such a real estate business was a crucial component of a

more aggressive investment strategy.    Yet the objective evidence

in the record suggests that the handful of real estate deals were

of the same kind and with the same individuals as Clyde Sr.’s

real estate activity before the formation of Turner & Co.     In

other words, Turner & Co.’s real estate activity was the same

type of   activity as that which Clyde Sr. engaged in before

forming Turner & Co.   This record does not support a finding that

Marc and Travis started a real estate development business by

investing in these real estate deals.    Rather, the record
                              - 40 -

supports a more limited finding that, if real estate deals came

Clyde Sr.’s way, they were channeled through Turner & Co.

     In reaching our conclusion that asset management was not a

significant nontax purpose, we rely on our finding that Turner &

Co.’s portfolio of marketable securities did not change in a

meaningful way.   Regents Bank stock continued to dominate the

portfolio from the time of the partnership formation until Clyde

Sr.’s death.   Whatever assets Turner & Co. added to the portfolio

had a risk/return profile similar to the profile of the assets

Clyde Sr. and Jewell contributed to the partnership.   For

example, the account statements for Turner & Co.’s Wachovia

Securities account reflect only four purchases up to the date of

Clyde Sr.’s death:   GMAC Notes, Morgan Stanley preferred stock,

Ford Motor preferred stock, and Suburban Propane Partners common

stock.   The account statements of Turner & Co.’s Morgan Keegan

accounts also show only a few purchases.   According to those

statements, Turner & Co. purchased Ford Motor Credit preferred

stock (three purchases), GMAC Notes, GMAC Smart Notes, and

General Electric notes.   With the exception of common stock of

Suburban Propane Partners, Turner & Co. therefore generally added

to its portfolio fixed-income investments.   Turner & Co.

therefore continued to hold a portfolio consisting of common

stock of mostly bank companies, preferred stock, bonds, cash, and

cash equivalents, similar to what Clyde Sr. and Jewell held
                              - 41 -

individually.   As a consequence, handing management over the

assets to Marc and Turner had no material impact on the profit

potential of the portfolio.

     Petitioner points to the fact that Turner & Co. opened and

closed certificates of deposit at various banks to support

petitioner’s claim of active investing.   Yet certificates of

deposit are akin to cash equivalents, and renewing certificates

of deposit can hardly be considered pursuing a diversified

strategy.   The objective facts in the record do not support

petitioner’s argument that Turner & Co. was formed to consolidate

Clyde Sr. and Jewell’s assets and allow for centralized

management pursuant to a formal investment strategy or to pursue

a more aggressive investment strategy.

     Petitioner’s argument regarding more efficient management

also fails in the light of the fact that Marc already had

significant responsibilities with respect to his grandparents’

finances before Turner & Co. was formed, and it is not clear what

nontax advantages the family limited partnership offered.    See

Estate of Erickson v. Commissioner, T.C. Memo. 2007-107.     Any

genuine concern Clyde Sr. or Jewell had regarding the scattered

state of their investments or the lack of a formal investment

strategy could have been readily addressed without transferring

the assets to a family limited partnership.   Finally, Turner &

Co. did not meaningfully consolidate Clyde Sr. and Jewell’s
                              - 42 -

assets or implement an active and formal investment management

strategy.

               b.   Resolution of Family Discord

     Petitioner argues that Turner & Co. also was formed to

resolve disputes among Turner family members through equal

sharing of information.   Although resolution of family disputes

or promotion of family harmony may be a legitimate and

significant nontax purpose for creation of a family limited

partnership, see Estate of Mirowski v. Commissioner, T.C. Memo.

2008-74; see also Estate of Stone v. Commissioner, supra,24

petitioner’s argument is not credible under the circumstances.


     24
      Petitioner attempts to analogize the Turner family to the
family in Estate of Stone v. Commissioner, T.C. Memo. 2003-309,
in which we held that transfers of assets into five family
limited partnerships were bona fide sales for adequate and full
consideration, where the partnerships were created in part to
resolve a dispute among the decedent’s adult children. However,
Estate of Stone is distinguishable in several respects.

     In Estate of Stone the decedent’s adult children were
involved in bitter litigation that threatened the family’s
closely held business, the litigation centered on the children’s
respective shares of their parents’ assets, which required active
management, and the family limited partnerships actually resolved
the family dispute by identifying the child who would manage each
asset both during their parents’ lives and after their parents’
deaths. By contrast, the rancor among the Turner children had
not resulted in litigation, or even the threat of litigation; did
not threaten a family business; and did not involve assets
requiring active management. Moreover, unlike the adult children
in Estate of Stone, there is no evidence that the Turner children
took any particular interest in their parents’ assets or were
concerned about how their parents managed their investments. On
the contrary, Betty testified that she did not inquire, and did
not believe it was her business to inquire, about her parents’
finances.
                                - 43 -

     The ill will among the Turner children was not about money,

per se, and there is no evidence that the Turner children ever

expressed a particular interest in managing their parents’

assets.   Instead, the bad feelings among the Turner children

stemmed from the fact that Clyde Jr. had a domineering

personality and had an unpleasant attitude toward his sisters and

their husbands.    Moreover, Clyde Jr.’s and his sons’ involvement

in Mt. Yonah caused Betty and Janna to resent their brother and

to believe that their parents were treating them unfairly.

     Given the source of the Turner family tension, we are not

convinced that Clyde Sr.’s and Jewell’s transfer of most of their

wealth to a partnership managed by Clyde Jr.’s sons was intended

to resolve family discord.    Indeed, when Betty and Janna learned

that Marc and Travis were managing Turner & Co., they demanded

changes to the partnership agreement, including removal of Marc

and Travis as the successor general partners.    Petitioner’s

argument appears to be little more than an after-the-fact,

hypothetical justification for the creation of Turner & Co.

                  c.   Protection of Jewell From Rory and Rory From
                       Himself

     Finally, petitioner argues that Turner & Co. was formed to

protect Jewell from Rory and Rory from himself.    Although asset

protection may be a legitimate and significant nontax reason for

formation of a family limited partnership, see, e.g., Schurtz v.

Commissioner, T.C. Memo. 2010-21 (formation of a family limited
                              - 44 -

partnership to protect a family business from Mississippi’s

litigious atmosphere was a legitimate and significant nontax

purpose), petitioner’s argument that Turner & Co. was formed to

provide asset protection is not credible.

     When Turner & Co. was formed, Jewell was in her late

seventies but was in good health physically and mentally.   She

had a close relationship with Rory, and she gave him money from

time to time.   Whatever concerns she, Clyde Sr., or other Turner

family members had regarding Rory’s drug problems, there is no

evidence that Jewell’s gifts to Rory were anything but voluntary,

nor is there any credible evidence in the record that Jewell

wanted or needed protection from Rory.   In the absence of such

evidence, we can perceive no reason Jewell needed to be protected

from spending her own money however she saw fit.

     Moreover, Turner & Co. did not, in fact, protect Jewell from

Rory because Clyde Sr. and Jewell retained more than $2 million

outside the partnership and Jewell still had access to money she

could give to Rory.   Petitioner argues that Turner & Co. created

the appearance of protection because after formation of the

partnership Jewell could tell Rory that she did not have money to

give him and Rory would accept that.   If Rory could be so easily

misled, Clyde Sr. and Jewell did not have to go through the

trouble of creating a limited partnership, transferring most of
                                - 45 -

their assets to the partnership, and incurring legal, accounting,

and other fees.

     Finally, petitioner’s argument that Turner & Co. protected

Rory from himself lacks merit.    Before the creation of Turner &

Co. and the gifts of limited partnership interests, Rory had no

assets to protect; all of the assets at issue belonged to Clyde

Sr. and Jewell.    Moreover, Rory’s Trust adequately protected any

assets that Clyde Sr. and Jewell wished to transfer to Rory,

either during their lives or upon their deaths.      Petitioner

failed to explain how placing the assets in a limited

partnership, as opposed to transferring the underlying assets to

Rory’s Trust, provided any meaningful additional protection.

Accordingly, we conclude that the transfers fail the bona fide

sale prong of the bona fide sale exception.

          2.      Factors Indicating the Transfers Were Not Bona
                  Fide Sales

     Several additional factors indicate that the transfers to

Turner & Co. were not bona fide sales.      First, Clyde Sr. stood on

both sides of the transaction, and he created Turner & Co.

without any meaningful bargaining or negotiation with Jewell or

with any of the other anticipated limited partners; i.e., his

children and grandchildren.    See Estate of Harper v.

Commissioner, T.C. Memo. 2002-121.       Second, Clyde Sr. commingled

personal and partnership funds when he used partnership funds to

make personal gifts to Marc and Travis, to pay premiums on life
                               - 46 -

insurance policies for the benefit of his children and

grandchildren, and to pay legal fees relating to his and Jewell’s

estate planning.    Third, Clyde Sr. and Jewell did not complete

the transfer of assets to Turner & Co. for at least 8 months

after formation of the partnership.25   See Estate of Hurford v.

Commissioner, T.C. Memo. 2008-278; Estate of Bigelow v.

Commissioner, T.C. Memo. 2005-65, affd. 503 F.3d 955 (9th Cir.

2007); Estate of Harper v. Commissioner, supra.

          3.   Whether Clyde Sr. Received Partnership Interests
               in Turner & Co. That Were Proportionate to the
               Value of the Property Transferred

     The parties stipulated that the partnership interests Clyde

Sr. received were proportionate to the fair market values of the

assets he contributed to Turner & Co. and that the assets Clyde

Sr. contributed to Turner & Co. were properly credited to his

capital accounts.    Consequently, we conclude that Clyde Sr.

satisfied the full and adequate consideration prong of the bona

fide sale exception.

          4.   The Bona Fide Sale Exception Does Not Apply

     On the basis of the foregoing, we conclude that the

formation of Turner & Co. falls short of meeting the bona fide


     25
      Petitioner argues that it took longer than expected for
Clyde Sr. and Jewell to transfer their assets to Turner & Co.
because of poor recordkeeping on their part. However, at the
time Turner & Co. was formed Marc had been assisting Clyde Sr.
and Jewell with their recordkeeping for approximately 8 years
(since 1994 according to Marc’s testimony). Thus, any delays in
transferring assets to Turner & Co. cannot be blamed on Clyde
Sr.’s and Jewell’s poor recordkeeping.
                               - 47 -

sale exception.    Rather, Clyde Sr. changed the form in which he

held the interest in the contributed assets, and the formation of

Turner & Co. was a part of a testamentary plan.    Accordingly, the

bona fide sale exception of section 2036(a) does not apply to

Clyde Sr.’s transfer of property to Turner & Co.    We therefore

consider whether Clyde Sr. retained for his life the possession

or enjoyment of the transferred property.

     C.     Possession or Enjoyment of Transferred Property

     Property is included in a decedent’s gross estate if the

decedent retained, by express or implied agreement, possession,

enjoyment, or the right to income from the transferred property.

Sec. 2036(a)(1); Estate of Erickson v. Commissioner, T.C. Memo.

2007-107.    For purposes of section 2036(a), a transferor retains

the enjoyment of property if there is an express or implied

agreement at the time of the transfer that the transferor will

retain the present economic benefits of the property, even if the

agreement is not legally enforceable.    Estate of Reichardt v.

Commissioner, 114 T.C. 144, 151 (2000); Estate of Erickson v.

Commissioner, supra.    In deciding whether there was an implied

agreement, we consider all facts and circumstances surrounding

the transfer and subsequent use of the property.    See Estate of

Reichardt v. Commissioner, supra at 151.

     Factors indicating that a decedent retained an interest in

transferred assets under section 2036(a)(1) include a transfer of
                               - 48 -

most of the decedent’s assets, continued use of transferred

property, commingling of personal and partnership assets,

disproportionate distributions to the transferor, use of entity

funds for personal expenses, and testamentary characteristics of

the arrangement.    Estate of Gore v. Commissioner, T.C. Memo.

2007-169; Estate of Erickson v. Commissioner, supra (citing

Estate of Rosen v. Commissioner, T.C. Memo. 2006-115, and Estate

of Harper v. Commissioner, supra).      The taxpayer bears the

burden, which is especially onerous in transactions involving

family members, of proving that an implied agreement did not

exist.    Estate of Reichardt v. Commissioner, supra at 151-152.

     We turn to the record and examine it for what it shows about

Clyde Sr.’s possession and enjoyment of the assets he transferred

to Turner & Co.    We start with the partnership agreement.      The

partnership agreement expressly provides that the general partner

is entitled to a “reasonable” management fee, and Clyde Sr.

and/or Jewell chose to receive a management fee of $2,000 per

month without any apparent regard for the nature and scope of

their actual management duties.    There is nothing in the record

to suggest that a $2,000 management fee was reasonable.     The

record does not disclose what, if anything, Clyde Sr. and Jewell

did to manage the partnership.    In fact, some of the evidence

suggests that Clyde Sr. and Jewell did not manage the partnership

at all.   The so-called management fee was paid under
                               - 49 -

circumstances suggesting that no management services were

actually provided.    This is not indicative of a business or

investment activity conducted for profit.    Rather, it resembles

an investment account from which withdrawals could be made at

will.   This impression is reenforced by a provision in the

partnership agreement that gave Clyde Sr. the right, as general

partner, to amend the partnership agreement at any time without

the consent of the limited partners.

      We turn now to an examination of the factors that tend to

show an agreement to retain possession and enjoyment of the

transferred assets.    Nearly all of the facts point to an implied

agreement.   Clyde Sr. transferred most of his assets to Turner &

Co.   Nearly 60 percent of the value of all property that Clyde

Sr. and Jewell contributed to Turner & Co. consisted of Regions

Bank common stock.    Because of his and Jewell’s sentimental

attachment to the Regions Bank stock, Turner & Co. did not sell

the Regions Bank stock.    Although he and Jewell retained

sufficient assets outside of the partnership to meet their living

expenses, they opted to receive management fees from Turner & Co.

for few or no management services and took distributions from

Turner & Co. at will.    As discussed above, Clyde Sr. used Turner

& Co. funds to make personal gifts to Marc and Travis, to pay

life insurance premiums on policies held by Clyde Sr.’s Trust for

the benefit of his children and grandchildren, and to pay legal
                              - 50 -

fees related to his estate planning.   He also commingled personal

and partnership funds when he personally paid Turner & Co.’s debt

to Habersham Bank, purchased the Lake Hartwell property on behalf

of Turner & Co., and reimbursed Turner & Co. for its purchase of

GMAC Notes.26   Clyde Sr. also received disproportionate

distributions from Turner & Co.27

     Most importantly, contrary to petitioner’s assertions, we

find that the purpose of Turner & Co. was primarily testamentary.

When Clyde Sr. purportedly approached Marc about creating a

vehicle to consolidate his assets, he allegedly stated that he

and Jewell were not getting any younger.   Petitioner’s own

witnesses testified that when Clyde Sr. met with attorneys at

Stewart, Melvin & Frost, he said that he wanted to discuss estate

planning.   Many of the specific purposes Clyde Sr. purportedly

outlined at the meeting were testamentary, e.g., providing for

Jewell after his death, providing income for future generations,

and protecting his children and grandchildren from creditors.     We

are particularly struck by the implausibility of petitioner’s

assertion that tax savings resulting from the family limited


      26
      Clyde Sr.’s willingness to pay more than $500,000 on
behalf of Turner & Co. without any documentation whatsoever
strongly indicates, at best, a disregard for partnership
formalities and, at worst, a failure to distinguish personal from
partnership funds.
      27
      Ms. Walden-Crowe testified that all payments to Clyde Sr.
or Jewell were intended for both since, as husband and wife, they
could make unlimited gifts to one another.
                               - 51 -

partnership were never discussed during a meeting focusing in

part on estate planning.   We do not find testimony to that effect

to be credible, and that lack of credibility infects all of the

testimony petitioner offered about what Clyde Sr. allegedly said

or intended about the purpose of the family limited partnership.

In our finding we rely partially on Mr. Coyle’s letter to Clyde

Sr. in which he wrote:   “A key element to a gifting plan is the

need of a sound appraisal of the partnership for tax purposes.”

And indeed such appraisal was the key to Clyde Sr.’s estate plan:

both the gift tax and estate tax returns used substantial

discounts despite the fact that the partnership assets at each

relevant date consisted of, inter alia, cash, cash equivalents,

and marketable securities.   In summary, we conclude that the

formation of Turner & Co. had testamentary characteristics and

Clyde Sr. did not curtail his enjoyment of the transferred assets

after formation of the partnership.

     D.   Section 2036(a)(2)

     We now turn to section 2036(a)(2).   Property is included in

a decedent’s gross estate under section 2036(a)(2) if the

transferor retained “the right, either alone or in conjunction

with any person, to designate the persons who shall possess or

enjoy the property or the income therefrom.”   However, a

transferor’s retention of the right to manage transferred assets

does not necessarily require inclusion under section 2036(a)(2).
                              - 52 -

See United States v. Byrum, 408 U.S. 125, 132-134 (1972); Estate

of Schutt v. Commissioner, T.C. Memo. 2005-126.

     Clyde Sr. was, for all intents and purposes, the sole

general partner of Turner & Co.,28 and the partnership agreement

gave him broad authority not only to manage partnership property,

but also to amend the partnership agreement at any time without

the consent of the limited partners.   As a general partner, Clyde

Sr. had the sole and absolute discretion to make pro rata

distributions of partnership income (in addition to distributions

to pay Federal and State tax liabilities) and to make

distributions in kind.   Moreover, Clyde Sr. had the authority to

amend the partnership agreement at any time without the consent

of the limited partners.   Finally, even after the gifts of

limited partnership interests to their children and

grandchildren, Clyde Sr. and Jewell owned more than 50 percent of

the limited partnership interests in Turner & Co. and could make

any decision requiring a majority vote of the limited partners.

     E.   Summary

     In summary, we conclude that Clyde Sr. made an inter vivos

transfer of property to Turner & Co., the transfer was not a bona

fide sale for adequate and full consideration because it was not


     28
      Even if we were to treat Jewell as a coequal general
partner of Turner & Co. we would reach the same conclusion
because sec. 2036(a)(2) applies where the transferor’s right to
designate who shall possess or enjoy property and the income
therefrom is held “alone or in conjunction with any person”.
                                - 53 -

motivated by a legitimate and significant nontax purpose, and

Clyde Sr. retained by both express and implied agreement the

right to possess and enjoy the transferred property, as well as

the right to designate which person or persons would enjoy the

transferred property.    Consequently, section 2036 includes the

values of transferred property in Clyde Sr.’s gross estate.29

III. Additional Taxable Gifts

     Section 2501 imposes a tax on the transfer of property by

gift by an individual.    The tax imposed by section 2501 applies

whether the transfer is in trust or otherwise, whether the gift

is direct or indirect, and whether the property is real or

personal, tangible or intangible.    Sec. 2511.

     The tax imposed by section 2001 is equal to the excess of

the tentative tax on the sum of the amount of a decedent’s

taxable estate and the amount of adjusted taxable gifts, over the

amount of tax that would have been payable as a gift tax with

respect to gifts made by a decedent after December 31, 1976.

Sec. 2001(b).   The term “adjusted taxable gifts” means the total

amount of taxable gifts (within the meaning of section 2503) made

by the decedent after December 31, 1976, other than gifts which




     29
      Because we conclude that the assets Clyde Sr. transferred
to Turner & Co. are included in his gross estate under sec.
2036(a)(1) and (2), we need not consider respondent’s alternative
argument that the assets are included under secs. 2038 and/or
2035.
                              - 54 -

are includable in the gross estate of the decedent.     Id.; Estate

of Cristofani v. Commissioner, 97 T.C. 74, 78 (1991).

     Section 2503(a) defines “taxable gifts” as the total amount

of gifts made during the calendar year, less applicable

deductions.   Section 2503(b) provides that in computing gifts for

the taxable year, the donor may exclude the first $10,000 of

gifts,30 other than gifts of future interests in property, made to

any person during the calendar year (the annual exclusion).

     Section 25.2503-3(b), Gift Tax Regs., defines a present

interest as “An unrestricted right to the immediate use,

possession, or enjoyment of property or the income from property

(such as a life estate or term certain)”.   A transfer does not

qualify as a gift of a present interest in property if the

beneficiary’s enjoyment of the gift is subject to the discretion

of a third party.   Sec. 25.2503-3(c), Example (1), Gift Tax Regs.

No part of the value of the gift of a future interest qualifies

for the annual exclusion.   Sec. 25.2503-3(a), Gift Tax Regs.   For

purposes of the annual exclusion, the term “future interest”

includes “reversions, remainders, and other interests or estates,

whether vested or contingent, and whether or not supported by a

particular interest or estate, which are limited to commence in

use, possession, or enjoyment at some future date or time.”     Id.



     30
      The annual exclusion amount is subject to a cost-of-living
adjustment. See sec. 2503(b)(2).
                               - 55 -

     In distinguishing present interests from future interests

for Federal gift tax purposes, the test is not whether the

beneficiary was likely to receive the present enjoyment of the

property, but whether he or she had the legal right to demand it.

As we explained in Estate of Cristofani v. Commissioner, supra at

83 (citing Crummey v. Commissioner, 397 F.2d 82, 88 (9th Cir.

1968), affg. in part and revg. in part T.C. Memo. 1966-144)):

     the likelihood that the beneficiary will actually
     receive present enjoyment of the property is not the
     test for determining whether a present interest was
     received. Rather, we must examine the ability of the
     beneficiaries, in a legal sense, to exercise their
     right to withdraw trust corpus, and the trustee’s right
     to legally resist a beneficiary’s demand for payment.
     * * *

     In Crummey v. Commissioner, supra at 82-83, the taxpayers

established an irrevocable trust for the benefit of their

children, some of whom were minors.     The trust agreement provided

that following a gift of property to the trust by the taxpayers

or any other person, each beneficiary had the right to demand

cash from the trust.    Id. at 83.   The trust agreement also

provided that if a beneficiary were a minor, that beneficiary’s

guardian was authorized to make that a demand on behalf of the

child.   Id.   The U.S. Court of Appeals for the Ninth Circuit

acknowledged that it was extremely unlikely that any of the minor

beneficiaries would make such a demand.     Id. at 87.   Indeed, the

Court of Appeals noted that some, if not all, of the

beneficiaries did not even know they had the right to demand
                              - 56 -

money from the trust.   Id. at 88.    Nevertheless, the Court of

Appeals held that where the trustee could not legally resist the

demand, the gift was a gift of a present interest and the

property was subject to the annual exclusion under section

2503(b).

     The parties agree that Clyde Sr. made indirect gifts to the

beneficiaries of Clyde Sr.’s Trust when he paid the premiums on

life insurance policies for the benefit of his children and

grandchildren.   The parties disagree, however, on the nature of

the gifts.   Petitioner contends that the gifts were gifts of

present interests (and therefore subject to the annual exclusion)

because the beneficiaries had the absolute right and power to

demand withdrawals of amounts transferred to Clyde Sr.’s Trust.

Respondent contends that the gifts were gifts of future interests

(and therefore not subject to the annual exclusion).

Specifically, respondent argues the beneficiaries’ withdrawal

rights were illusory because Clyde Sr. did not deposit money with

the trustees of Clyde Sr.’s Trust but instead paid the life

insurance premiums directly and because the beneficiaries did not

receive notice of the transfers.     Consequently, respondent argues

that the beneficiaries had no meaningful opportunity to exercise

the right of withdrawal.

     The terms of Clyde Sr.’s Trust gave each of the

beneficiaries the absolute right and power to demand withdrawals
                               - 57 -

from the trust after each direct or indirect transfer to the

trust.    The fact that Clyde Sr. did not transfer money directly

to Clyde Sr.’s Trust is therefore irrelevant.     Likewise, the fact

that some or even all of the beneficiaries may not have known

they had the right to demand withdrawals from the trust does not

affect their legal right to do so.      See Crummey v. Commissioner,

supra at 86-87; Estate of Cristofani v. Commissioner, supra at

80.   We therefore conclude that the premium payments Clyde Sr.

made as indirect gifts to Clyde Sr.’s Trust in 2000-2003 were

gifts of present interests and are subject to the annual

exclusion.

      Respondent argues, in the alternative, that even if we

conclude the premium payments were gifts of present interests,

some of the gifts made in 2002 and 2003--specifically, the gifts

made to Clyde Jr., Betty, Janna, Trey, and Rory--are still

includable in Clyde Sr.’s taxable estate.     This is so, respondent

argues, because the transfers of limited partnership interests to

Clyde Jr., Betty, Janna, Trey, and Rory in 2002 and 2003 used up

their annual exclusions and any additional gifts to those

beneficiaries during 2002 and 2003 are includable in Clyde Sr.’s

estate.   We disagree.

      For the reasons discussed above, we have concluded that the

value of property Clyde Sr. transferred to Turner & Co. is

included in his gross estate under section 2036.     Consequently,
                                - 58 -

the gifts of limited partnership interests that the estate

reported on Forms 706 and 709 must be disregarded for purposes of

calculating Clyde Sr.’s adjusted taxable gifts.    To do otherwise

would result in the double inclusion of a significant part of the

property transferred to Turner & Co. in Clyde Sr.’s estate.31

IV.   Conclusion

      In summary, we hold that the value of the property Clyde Sr.

transferred to Turner & Co. is included in his gross estate under

section 2036(a).    Because section 2036 includes in a decedent’s

gross estate the fair market value of the transferred property,

i.e., the underlying assets Clyde Sr. transferred to Turner &

Co., no discount for lack of control or lack of marketability is

appropriate.   Instead, the parties should look to the fair market

value of the assets Clyde Sr. contributed to Turner & Co. as of

the date of Clyde Sr.’s death in determining the amount that is

included in his gross estate.

      We further hold that the premium payments Clyde Sr. made in

2000-2003 for life insurance policies held by Clyde Sr.’s Trust

were gifts of present interests in property to the trust

beneficiaries.     By reason of the above, respondent must disregard

the purported gifts of limited partnership interests in Turner &


      31
      Respondent appears to recognize this principle: in the
notice of deficiency, respondent increased Clyde Sr.’s taxable
estate by the net asset value of the property transferred to
Turner & Co. but made a corresponding reduction to the adjusted
taxable gifts.
                             - 59 -

Co. in calculating Clyde Sr.’s adjusted taxable gifts in order to

prevent double inclusion of the value of the property transferred

to Turner & Co. for transfer tax purposes.

     We have considered the remaining arguments of both parties

for results contrary to those expressed herein and, to the extent

not discussed above, find those arguments to be irrelevant, moot,

or without merit.

     To reflect the foregoing,


                                     Decision will be entered under

                                 Rule 155.
