Estate of Samuel P. Black, Jr., Samuel P. Black, III v. Commissioner , 133 T.C. 340 ( 2009 )


Menu:
  •                          
    133 T.C. No. 15
    UNITED STATES TAX COURT
    ESTATE OF SAMUEL P. BLACK, JR., DECEASED, SAMUEL P. BLACK, III,
    EXECUTOR, ET AL.,1 Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent
    Docket Nos. 23188-05, 23191-05,   Filed December 14, 2009.
    23516-06.
    From 1927 until 1993, Mr. B was an employee,
    officer, or director of E (an insurance company) and
    was a major contributor to E’s success. In 1993, he,
    his son, P, and trusts for P’s two sons contributed
    their unencumbered E stock to BLP, a family limited
    partnership, in exchange for partnership interests
    proportionate to the fair market value of the E stock
    each contributed. Mr. B’s advisers had explained the
    estate tax advantages of placing his E stock in BLP,
    but the transaction was initiated to implement Mr. B’s
    buy-and-hold philosophy with respect to the family’s E
    stock. Specifically, that transaction was a solution
    to his concerns that (1) P’s wife and her parents (she
    in connection with a possible divorce from P, they
    because of their continual financial problems) would
    require P to sell or pledge some of his E stock to
    1
    The following cases are consolidated herewith for trial,
    briefing, and opinion: Estate of Irene M. Black, Deceased,
    Samuel P. Black, III, Executor, docket Nos. 23191-05 and 23516-
    06.
    - 2 -
    satisfy their monetary needs (P previously had pledged
    125,000 E shares as collateral for a loan), and (2) his
    grandsons would sell all or some of the E stock that
    they would receive upon the termination of their
    trusts. In 1993, P and the two trusts owned
    approximately $12 million (of the B family’s
    approximately $80 million) worth of E stock.
    Mr. B’s estate plan established a pecuniary
    marital trust for Mrs. B and a $20 million bequest to a
    university endowment. Mr. B died in December 2001, and
    Mrs. B, 5 months later, before there was time to fund
    the marital trust, which P, as executor of both
    estates, had intended to fund with a portion of Mr. B’s
    estate’s interest in BLP. On Mrs. B’s estate’s Federal
    estate tax return, P deemed the marital trust to be
    funded as of the date of her death.
    Because Mrs. B’s estate lacked sufficient liquid
    assets to discharge its tax and other liabilities, P,
    BLP’s managing partner, and E agreed to have BLP sell
    some of its E stock in a secondary offering. That sale
    raised $98 million, of which E lent to Mrs. B’s estate
    $71 million. The interest on the loan was payable in a
    lump sum on the purported due date, more than 4 years
    from the date of the loan, and was deducted in full on
    Mrs. B’s estate’s tax return under sec. 20.2053-
    1(b)(3), Estate Tax Regs. Mrs. B’s estate used the
    funds to discharge its Federal and State tax
    liabilities, pay the $20 million bequest to the
    university endowment, reimburse E’s costs, totaling
    $980,625, in connection with the secondary offering,
    and pay $1,155,000 each to P, as executor fees, and to
    a law firm, as legal fees.
    R determined that (1) the value of the E stock
    apportionable to Mr. B’s partnership interest in BLP at his
    death is includable in his gross estate under either sec.
    2035(a) or 2036(a)(1) or (2), I.R.C., (2) the marital
    deduction to which Mr. B’s estate is entitled under sec.
    2056, I.R.C., is limited to the value of the partnership
    interest in BLP that actually passed to the marital trust,
    (3) the deemed funding date of the marital trust and, hence,
    the size of the BLP interest includable in Mrs. B’s estate
    under sec. 2044, I.R.C., is determined by reference to the
    value of BLP on the date of Mr. B’s death, not on the date
    of Mrs. B’s death when the value of BLP was higher and it
    would require a smaller interest in BLP to fund the trust,
    (4) the interest payable on the BLP loan to Mrs. B’s estate
    is not a deductible administration expense under sec.
    2053(a)(2), I.R.C., and (5) Mrs. B’s estate is not entitled
    to deduct the $980,625 reimbursement of E’s secondary
    - 3 -
    offering costs and is entitled to deduct only $500,000 of
    P’s executor fee and $500,000 of the legal fees.
    1. Held: Because Mr. B’s transfer of E stock to BLP
    in exchange for a partnership interest therein constituted
    “a bona fide sale for an adequate and full consideration in
    money or money’s worth” within the meaning of sec. 2036(a),
    I.R.C., the value of Mr. B’s gross estate does not include
    the value of the transferred E stock apportionable to his
    date-of-death interest in BLP.
    2. Held, further, holding No. 1 renders R’s
    second determination moot.
    3. Held, further, the deemed funding date of the
    marital trust is the date of Mrs. B’s death.
    4. Held, further, the loan from BLP to Mrs. B’s
    estate was not “necessarily incurred” within the
    meaning of sec. 20.2053-3(a), Estate Tax Regs., and,
    therefore, the interest thereon is not a deductible
    administration expense under sec. 2053(a)(2), I.R.C.
    5. Held, further, Mrs. B’s estate is entitled to
    deduct $481,000 of its reimbursement of E’s secondary
    offering costs, $577,500 for P’s executor fee, and
    $577,500 for legal fees because only those amounts
    correspond to expenditures or effort on behalf of Mrs.
    B’s estate.
    John W. Porter, J. Graham Kenney, Stephanie Loomis-Price,
    and Jason S. Zarin, for petitioner.
    Gerald A. Thorpe and Andrew M. Stroot, for respondent.
    HALPERN, Judge:   Respondent has issued four notices of
    deficiency (the notices) to Samuel P. Black III (petitioner).
    Two were issued to him in his capacity as executor of the estate
    of Samuel P. Black, Jr. (Mr. Black’s estate and Mr. Black,
    respectively), and two were issued to him in his capacity as
    executor of the estate of Irene M. Black (Mrs. Black’s estate and
    Mrs. Black, respectively).   Two notices were with respect to
    - 4 -
    Federal gift tax (one with respect to Mr. Black and one with
    respect to Mrs. Black), each determining a deficiency in tax of
    $147,623 for 2001 for gifts by Mr. Black that were treated for
    Federal gift tax purposes as made one-half by each spouse.   The
    other two notices were with respect to Federal estate tax, one
    determining a deficiency in tax of $129,166,964 for Mr. Black’s
    estate, and the other determining a deficiency in tax of
    $82,224,024 for Mrs. Black’s estate.   Petitioner is the son of
    Mr. and Mrs. Black.
    After concessions (all of which relate to valuation issues
    and issues resolved by the settlement of the valuation issues)
    the issues for decision are (1) whether the fair market value of
    stock that Mr. Black contributed to the Black Interests Limited
    Partnership (Black LP) is includable in his gross estate pursuant
    to section 20362 (the section 2036 issue); (2) if we decide that
    the fair market value of the stock Mr. Black contributed to Black
    LP, rather than the fair market value of Mr. Black’s interest in
    Black LP, is includable in his gross estate under section 2036,
    whether the marital deduction to which Mr. Black’s estate is
    entitled under section 2056 should be computed according to the
    value of the partnership interest that actually passed to Mrs.
    Black or according to the value of the underlying stock
    apportionable to that interest (the marital deduction issue); (3)
    2
    Unless otherwise stated, all section references are to the
    Internal Revenue Code as amended and in effect for the dates of
    decedents’ deaths, and all Rule references are to the Tax Court
    Rules of Practice and Procedure. We round all dollar amounts to
    the nearest dollar.
    - 5 -
    for purposes of determining the value of the marital trust
    property includable in Mrs. Black’s gross estate under section
    2044, whether the marital trust that Mr. Black established for
    Mrs. Black’s benefit should be deemed funded on the date of his
    death or on the date of her death (the date of funding issue);
    (4) whether Mrs. Black’s estate may deduct, as an administrative
    expense under section 2053(a)(2), $20,296,274 in interest on an
    alleged loan from Black LP (the interest deductibility issue);
    (5) whether Mrs. Black’s estate may deduct, as administrative
    expenses under section 2053, the following fees or expense
    reimbursements: (a) a $1,150,000 fee paid to petitioner for
    services as the executor of Mrs. Black’s estate and trustee of
    the marital trust, (b) a $1,150,000 fee paid to the law firm of
    MacDonald, Illig, Jones & Britton LLP (MacDonald Illig), and (c)
    $980,625 paid to Black LP as reimbursement for expenses incurred
    in connection with a secondary offering of stock Black LP held
    (together, the fee deductibility issues); (6) whether under
    section 7491(a) respondent bears the burden of proof with respect
    to all factual issues (the burden of proof issue).   The notices
    also contain certain other adjustments that are purely
    computational.    Their resolution depends on our resolution of the
    issues in dispute.
    FINDINGS OF FACT
    Some facts are stipulated and are so found.   The stipulation
    of facts, with accompanying exhibits, is incorporated herein by
    this reference.
    - 6 -
    At the time the petitions were filed, petitioner resided in
    Pennsylvania.
    The Black Family
    Mr. Black was born on April 2, 1902, and died, at the age of
    99, on December 12, 2001.    Mrs. Black was born on December 18,
    1906, and died shortly after Mr. Black, on May 25, 2002.    Mr. and
    Mrs. Black were married in 1932 and remained married until Mr.
    Black’s death.    The Blacks were survived by their son
    (petitioner) and grandsons (petitioner’s children), Samuel P.
    Black IV (Samuel), and Christopher Black (Christopher), who were
    33 and 31 years old, respectively, when Mrs. Black died.
    Mr. Black’s History With Erie Indemnity Company
    Mr. Black was born into poverty in Mercer County,
    Pennsylvania.    At age 11, he was selling bread on the street
    corner and peddling newspapers door-to-door.    At age 19, he began
    work as an insurance adjuster at the Philadelphia Indemnity
    Exchange, where he worked with H.O. Hirt and O.G. Crawford.
    In 1925, H.O. Hirt and O.G. Crawford founded Erie Indemnity
    Co. (Erie) and, in 1927, hired Mr. Black as Erie’s first full-
    time claims manager.    In 1925, Erie was a Pennsylvania automobile
    insurance company; by the early 1990s, Erie had become a
    multiline insurance company offering auto, home, commercial, and
    life insurance in 11 States and the District of Columbia through
    a network of independent insurance agents.    Erie also managed the
    Erie Insurance Exchange, a reciprocal insurer.
    - 7 -
    Mr. Black was a large part of Erie’s success.    Upon joining
    Erie, Mr. Black installed an extension of the “home office”
    telephone in his room at the YMCA across the street from Erie’s
    office, making Erie one of the first insurance companies to offer
    around-the-clock claims service.    Mr. Black established Erie’s
    underwriting department, where he drafted policies and
    endorsements and filed documents to conform to State and Federal
    laws.   Mr. Black also recruited agents and managed sales
    territories for Erie.
    In 1930, Mr. Black became a member of the board of directors
    of Erie.   In 1962, when he was 60 years old, Mr. Black retired
    from his position as senior vice president.    After his retirement
    from Erie, Mr. Black continued to serve on Erie’s board of
    directors.   In 1997, when he retired from the board of directors
    (at the age of 95), Mr. Black had not missed a single board
    meeting in 67 years.    According to William F. Hirt, son of
    founder H.O. Hirt, Mr. Black was “a major, major contributor to
    the success of Erie.”    In 1997, petitioner was elected to succeed
    Mr. Black as a member of Erie’s board of directors.
    Through the years, Mr. Black acquired in Erie both class B
    voting stock and class A nonvoting stock.    Mr. Black was very
    bullish about the growth prospects for Erie stock, and he bought
    it at every opportunity.    By the 1960s, Mr. Black had become the
    second largest Erie shareholder.    Mr. Black was a conservative
    investor who subscribed to the “buy and hold” investment
    philosophy, particularly with regard to Erie stock.
    - 8 -
    Upon his retirement from Erie, Mr. Black received permission
    from Erie to form his own insurance agency, Samuel P. Black &
    Associates, Inc., which became one of Erie’s independent
    insurance agents.   Although by 1992 petitioner had taken over
    management of Samuel P. Black & Associates, Inc., Mr. Black was
    actively involved in its operation until shortly before his death
    in 2001.
    Mr. Black’s Gifts of Erie Stock
    On October 6, 1988, Mr. Black, as settlor, and petitioner,
    as trustee, created two trusts, one for each of Mr. Black’s
    grandsons, Samuel and Christopher (together, the grandson
    trusts).   Each grandson trust was funded with 10 shares of Erie
    class A nonvoting stock.
    In October 1988, December 1989, and December 1990, Mr. Black
    gave 600 shares, 1,120 shares, and 804 shares, respectively, of
    Erie class A nonvoting stock to petitioner.   Also, in December
    1989, December 1990, December 1992, and January 1993, Mr. Black
    gave a total of 2,829 shares of Erie class A nonvoting stock,
    through petitioner, to each of the grandson trusts.
    Before 1988, Mr. Black had made other gifts of both Erie
    class A nonvoting stock and Erie class B voting stock to
    petitioner.   Before 1993, petitioner had acquired Erie stock only
    by gift from Mr. Black or through stock splits.
    As of October 11, 1993, Mr. Black owned 2,425,752 shares of
    Erie class A nonvoting stock and 400 shares of Erie class B
    voting stock.
    - 9 -
    Formation of Black Interests Limited Partnership
    Between 1988 and 1993, when Mr. Black transferred Erie stock
    to petitioner and created trusts that held Erie stock for his
    grandsons, the stock split several times and substantially
    increased in value.   Mr. Black became concerned that his
    grandsons (each of whom would be able to withdraw the trust
    principal, one-half at age 25 and the balance at age 30, at which
    point the grandson trusts would terminate) and petitioner would
    either need to or want to sell some or all of their Erie stock.
    His concern increased as the value of that stock increased.
    Mr. Black’s fear that petitioner might dispose of some or
    all of his Erie stock arose out of his concern (1) that
    petitioner might default on a personal loan from PNC Bank for
    which he had previously pledged 125,000 Erie shares as
    collateral, and that he might need to satisfy his obligation with
    that pledged stock, (2) over the status of petitioner’s marriage
    to Karen Black, to whom he had been married since 1965, which Mr.
    Black thought would not last much longer and which, if it ended
    in divorce (as it did in 2004), might result in the transfer of
    some of petitioner’s Erie stock to her,3 and (3) about Karen
    Black’s father’s business and personal bankruptcies, which
    resulted in her parents’ continuing need to obtain money from her
    and petitioner, a need that could conceivably require the sale of
    some of petitioner’s Erie stock.
    3
    Karen Black did, in fact, receive the 125,000 pledged Erie
    shares in the divorce, by which time that stock had been released
    from its pledge to PNC Bank.
    - 10 -
    Mr. Black’s fear that his grandsons might dispose of some or
    all of the Erie stock that they would receive upon termination of
    their trusts arose out of his concern (1) that, as of 1993,
    although both Samuel and Christopher were over 20 years old,
    neither held a job or was even looking for one, (2) that, in Mr.
    Black’s view, both grandsons were too close to their mother, whom
    Mr. Black considered to be lazy, and (3) that they were both
    inexperienced financially and, therefore, might fall prey to
    people anxious to have them invest their money.
    Mr. Black was also concerned about a brewing split between
    the two children of H.O. Hirt, William F. Hirt (Mr. Hirt) and
    Susan Hirt Hagen (Ms. Hagen), each of whom was a trustee of one
    of two trusts (created by H.O. Hirt) that, as of October 12,
    1993, controlled 76.2 percent of Erie’s voting stock.   The two
    trusts shared a common institutional cotrustee.   Under the terms
    of the trusts, the voting stock both trusts held was to be voted
    as a unit as directed by a majority of the three trustees.
    In 1990, Ms. Hagen’s husband, Thomas B. Hagen (Mr. Hagen),
    became Erie’s chief executive officer.   By 1993, however, an
    inappropriate relationship between Mr. Hagen and another senior
    officer was disrupting business decisions and causing valuable
    employees to resign.   Ultimately, at a board meeting in September
    1993, a majority of Erie’s directors voted to terminate Mr.
    Hagen’s employment.    Mr. Black disapproved of Mr. Hagen’s conduct
    and of his management of Erie, and he approved of Mr. Hagen’s
    dismissal.   He foresaw the possibility that the growing
    - 11 -
    antagonism between Mr. Hirt and Ms. Hagen might result in a split
    of the H.O. Hirt trusts and that the Black family stock, which,
    by 1993, represented 13 to 14 percent of the total voting and
    nonvoting Erie stock, might represent the swing vote in favor of
    the Hirt camp against the Hagen camp.    That was another reason he
    wanted to consolidate and retain the family’s Erie stock.
    Mr. Black’s gifts of Erie stock to petitioner and to the
    trusts for his grandsons were in some measure influenced by two
    of his regular advisers: James D. Cullen (Mr. Cullen) of
    MacDonald Illig, Mr. Black’s business and estate planning lawyer;
    and Robert L. Wagner (Mr. Wagner), a certified public accountant
    with Ernst & Young (E&Y), Mr. Black’s tax and financial adviser.
    Beginning in 1988, Messrs. Cullen and Wagner regularly met with
    Mr. Black and advised him to take advantage of his lifetime gift
    tax exclusion by making gifts of Erie stock to family members
    which, as described supra, he did.     By the early 1990s, however,
    Mr. Black was expressing to those two advisers his concerns over
    the potential disposal of Erie stock by his grandsons and
    petitioner.   During a meeting with Messrs. Cullen and Wagner, the
    latter offered to consult with one of his partners, Andy Painter
    (Mr. Painter).   In August 1992, Mr. Painter gave Mr. Wagner a
    memorandum suggesting--and later himself met with Mr. Black to
    suggest--a number of alternative, essentially tax planning,
    vehicles for Mr. Black to consider, including a family limited
    partnership, grantor retained interest trusts, and, to satisfy
    Mr. Black’s desires with respect to charitable giving, an income
    - 12 -
    or remainder charitable trust, or private foundation.    Mr.
    Painter’s memorandum refers to an article written by Stacy
    Eastland (Mr. Eastland), at that time an attorney with the law
    firm of Baker & Botts LLP, who specialized in estate planning.
    Mr. Cullen spoke with Mr. Black about the article, which outlines
    a number of nontax reasons for forming a family limited
    partnership, including keeping family assets in the family,
    reducing costs by consolidating family assets, protecting family
    assets from future creditors, and protecting family assets from
    divorce proceedings.
    Ultimately, Mr. Black’s advisers recommended the formation
    of a family limited partnership to satisfy his goals of (1)
    consolidating and protecting the family’s Erie stock and (2)
    minimizing the estate taxes that would be payable upon his death
    and Mrs. Black’s death.   Mr. Black followed their recommendation.
    To that end, in October 1992 he retained Mr. Eastland to draft a
    family limited partnership agreement.
    On March 2, 1993, Mr. Eastland sent to Mr. Black a draft
    partnership agreement for the creation of Black LP, and, on
    October 12, 1993, Black LP was created as a Texas limited
    partnership pursuant to the “Agreement and Articles of
    Partnership of Black Interests Limited Partnership” (the
    partnership agreement) executed on that date by the partners, Mr.
    Black and petitioner, the latter both in his individual capacity
    and as trustee of the grandson trusts.   On October 12, 1993, a
    - 13 -
    certificate of limited partnership for Black LP was filed with
    the Texas secretary of state.
    At the time of the formation of Black LP, Mr. Black, at age
    91, was in good health.   He was not suffering from any life-
    threatening illness, and he maintained an active lifestyle.     He
    participated in the daily operations of Samuel P. Black &
    Associates, Inc., was an active member of the Erie board of
    directors, maintained a lively social schedule, remained an avid
    golfer, and traveled to Florida several times a year.
    Upon the formation of Black LP, Mr. Black contributed to it
    all his Erie class A nonvoting stock (2,425,752 shares) and 390
    of his 400 shares of Erie class B voting stock in exchange for
    all the class A limited partnership interests, an 83.985-percent
    class B limited partnership interest, and a 1-percent class B
    general partnership interest; petitioner contributed to Black LP
    444,446 shares of Erie class A nonvoting stock in exchange for a
    0.5-percent class B general partnership interest and a 13.317-
    percent class B limited partnership interest.   In his capacity as
    trustee of the grandson trusts, petitioner contributed 19,276
    shares of Erie class A nonvoting stock on behalf of each trust in
    exchange for two 0.599-percent class B limited partnership
    interests.   The only Black family Erie stock held out of Black LP
    were the 125,000 shares that petitioner had pledged to PNC Bank
    and 20 class B voting shares, of which Mr. Black and petitioner
    each held 10 shares.
    - 14 -
    Upon the formation of Black LP, each partner therein (Mr.
    Black, petitioner, and the two trusts) received an interest in
    the partnership proportionate to the fair market value of the
    assets contributed.
    Section 2.06 of the partnership agreement sets forth the
    purposes of Black LP as follows:
    Section 2.06. Purposes. The purposes of the
    Partnership are the following:
    (a) To consolidate the management of certain
    properties owned directly and indirectly by the family
    of Samuel P. Black, Jr.; to promote efficient and
    economical management of the properties by holding them
    in a single entity; to avoid the division of certain of
    the properties of the family of Samuel P. Black, Jr. in
    order to promote the greater sales potential of the
    properties; to avoid potential expensive litigation and
    disputes over certain of the properties of the family
    of Samuel P. Black, Jr. by providing mechanisms which
    will provide for management and procedures in Article
    VIII and Section 11.01 to resolve disputes; to provide
    mechanisms which will eliminate the potential in the
    future of any member of the family transferring his or
    her interest in the Partnership without first offering
    that interest to the other family members;
    (b) To engage generally in the insurance business,
    to acquire, own, hold, develop and operate insurance
    enterprises, either as operator, managing agent,
    principal, agent, partner, stockholder, syndicate
    member, associate, joint venturer, participant or
    otherwise; to invest funds in, and to raise funds to be
    invested in such business; to purchase, construct or
    otherwise acquire and own, develop, operate, lease,
    mortgage, pledge and to sell or otherwise dispose of
    insurance enterprises, and other properties and any
    interest therein; or to do any and all things necessary
    or incident thereto;
    (c) To acquire, invest, hold, own, develop,
    operate mortgage, pledge, sell or otherwise dispose of
    the stock of Erie Indemnity Company; to do any and all
    things necessary or incident thereto;
    (d) To manage and control investments in other
    partnerships, businesses and entities, whether debt,
    - 15 -
    equity, or otherwise; to hold, buy, sell, lease,
    pledge, mortgage, and otherwise deal in or dispose of
    those investments or similar interests;
    (e) To invest in stocks, bonds, securities, and
    other similar interests, including, without limitation,
    purchasing, selling, and dealing in stocks, bonds,
    notes, and evidences of indebtedness of any person,
    firm, enterprise, corporation or association, domestic
    or foreign and bonds and any other obligations of any
    government, state or municipality, school district or
    any political subdivision thereof, domestic or foreign,
    and bills of exchange and commercial paper, and any and
    all other securities of any kind, nature, or
    description whatsoever, to invest in gold, silver,
    grain, cotton and other commodities and provisions
    usually dealt in or on exchanges, or upon the over-the-
    counter-market; to form, organize, capitalize and
    invest in, alone or jointly with others, and to sell or
    otherwise dispose of the same to others, and to form
    corporations, partnerships, joint ventures, limited
    liability companies and other business entities, and in
    general, without limitation of the foregoing, to
    conduct such activities as are usual and customary in
    connection with, stocks, bonds and securities and other
    investments in corporations, partnerships, joint
    ventures, limited liability companies and other
    business entities;
    (f) To transact or engage in any other business
    that may be conducted in partnership form * * *
    Management of Black LP was vested in the managing partner.
    Mr. Black was the managing partner from formation until October
    16, 1998, when he ceded to petitioner his 1-percent general
    partnership interest and his responsibilities as a managing
    partner.
    The partnership agreement generally prohibits a general or
    limited partner or the partner’s spouse (including a divorced
    spouse) from transferring an interest in the partnership to
    persons or entities unrelated to any of the partners without “the
    written consent of the Partnership and all other Partners”.    The
    - 16 -
    partnership agreement grants to the partnership or the partners a
    right of first refusal to purchase any partnership interest with
    respect to any lifetime disposition, including involuntary
    dispositions and dispositions incident to the divorce of a
    partner, and any testamentary disposition upon the death of a
    partner or the spouse of a partner.
    The partnership agreement requires that the net cashflow of
    the partnership (defined as the yearend excess of cash over
    reasonable reserves for working capital and other cash
    requirements) be distributed, at least annually, to each class B
    and general partner, pro rata.   It provides that, in any event,
    there be distributed to the partners sufficient amounts to enable
    the partners to discharge their income tax liabilities
    attributable to their interests in the partnership.   Except for
    those distributions and distributions in liquidation, the
    partnership agreement permits no distributions to partners until
    termination and liquidation of the partnership.   The partnership
    agreement also generally provides for the pro rata allocation of
    profits and losses to the class B general and limited partners.
    The partnership agreement provides that, when Mr. Black is
    not serving as managing partner, the managing partner is
    prohibited, unless he obtains the prior written consent of a
    majority of the limited partnership interests, from (1) making
    any single investment or series of related investments during a
    calendar year requiring a total capital commitment greater than
    the lesser of 5 percent of the book value of the partnership
    - 17 -
    assets or $2,500,000, (2) acquiring debt of any kind that would
    result in the partnership’s having outstanding aggregate debt
    equal to or greater than 10 percent of the book value of the
    partnership assets, (3) agreeing or consenting to the sale,
    lease, transfer, or other disposition (whether in one transaction
    or a series of related transactions) of any partnership asset or
    assets the value of which is equal to or greater than 5 percent
    of the book value of the partnership assets, (4) disposing of all
    or any portion of any partnership asset to a permitted assignee
    (as the partnership agreement defines that term) where the value
    of the asset, or the portion proposed to be disposed of, has a
    book value in excess of $100,000.
    The partnership agreement provides that no general or
    limited partner shall have the right to withdraw from the
    partnership before it dissolves and liquidates.
    Lastly, the partnership agreement provides that it “may be
    modified, terminated or waived only by a writing signed by the
    party to be charged with such modification, termination or
    waiver.”
    Activities of the Partnership
    According to Mr. Black’s wishes, Black LP retained all its
    Erie stock from formation (in 1993) until after Mr. Black died
    (in 2001).   Indeed, upon becoming Black LP’s sole managing
    partner in 1998, petitioner followed Mr. Black’s wishes despite
    misgivings over Black LP’s continued retention of Erie stock.
    Those misgivings arose out of his concern regarding the ongoing
    - 18 -
    feud between the Hirts and the Hagens and the adverse effect that
    feud might have on the company and the price of its stock.4
    Nonetheless, between 1993 and 2001, the net asset value of Black
    LP, consisting mostly of Erie stock, rose from approximately $80
    million to more than $318 million.
    During 1995 and 1996, Black LP purchased for $830,000
    commercial condominium units in Erie, Pennsylvania, which it
    leased in part to Samuel P. Black & Associates, Inc., and in part
    to an independent insurance agency of which petitioner owned 65
    percent and was president and treasurer.   One or more of those
    condominium units was later leased to Erie after Samuel P. Black
    & Associates, Inc., moved out.   In 1996, Black LP spent more than
    $37,000 making leasehold improvements to those units.   In 2001,
    before Mr. Black’s death, Black LP paid $89,900 for another
    commercial property in Erie, Pennsylvania, which, in 2002, it
    leased to Samuel P. Black & Associates, Inc.
    In February, April, and October 2000, Black LP paid $924,000
    to purchase 4,400 shares (approximately 80 percent of the
    outstanding stock) of Samuel P. Black & Associates, Inc.
    Black LP’s cumulative income, from 1994 through 2001,
    consisted of $27,835,476 attributable to Erie dividends and
    $100,561 attributable to other income, consisting almost entirely
    4
    Because of his concerns regarding the management of Erie,
    petitioner ultimately caused Black LP to sell the remaining two-
    thirds of its Erie stock in 2005 and 2006, at which time Erie
    stock was publicly traded. The partnership had sold the first
    roughly one-third of the stock in a secondary offering after Mrs.
    Black’s death in 2002. See infra.
    - 19 -
    of property rentals, and it made total distributions to partners
    of $25,659,526, over $20 million (or approximately 80 percent) of
    which was distributed to Mr. Black.   That is, during that time,
    Black LP distributed an amount equal to approximately 92 percent
    of the Erie dividends it received.
    Mr. Black’s Assignments of Partnership Interests
    On October 16, 1998, Mr. Black assigned his 1-percent
    general partnership interest in Black LP to petitioner.
    Between 1993 and 2001, Mr. Black also made numerous gifts of
    his class A and class B limited partnership interests in Black LP
    to the Erie Community Foundation (which received his entire class
    A limited partnership interest), petitioner, the grandson trusts,
    his grandchildren individually (after their trusts terminated),
    and five separate charitable trusts Mr. Black created.
    Cumulatively, Mr. Black’s gifts of class B limited partnership
    interests to family members (including the grandson trusts) and
    private charities constituted 6.8974 percent of the total class B
    limited partnership interest and reduced his initial 83.985-
    percent class B limited partnership interest to a 77.0876-percent
    interest.
    On October 4, 1995, Mr. Black, as both settlor and trustee,
    established the Samuel P. Black, Jr. Revocable Trust (the
    original trust), whose terms he amended on March 20, 1998 (the
    amended trust) (together, the revocable trust), and to which, on
    August 27, 2001, he transferred his 77.0876-percent class B
    limited partnership interest in Black LP.   The transfer was made
    - 20 -
    specifically subject to the partnership agreement “with respect
    to the class B Limited Partnership Interest assigned hereby, and
    the restrictions on transferability therein contained.”
    The Revocable Trust
    The original trust document provided for the payment of the
    net income from the trust principal to Mr. Black (or for his
    benefit) for his life, and for the distribution of the trust
    estate, upon Mr. Black’s death, as he “shall appoint and direct *
    * * in his last will and testament”, or, failing to so “appoint
    and direct” (which, in fact, was the case), in the manner set
    forth in the original trust.   The original trust document also
    provided for the creation of a marital trust for Mrs. Black as
    follows:
    If the Settlor’s wife, IRENE M. BLACK, survives
    the Settlor, the Trustee shall hold IN TRUST, as the
    Marital Trust under Section C below, a legacy equal to
    the smallest amount, if any, needed to reduce the
    federal estate tax liability of the Settlor’s estate to
    zero or to the lowest possible figure. In calculating
    this amount, the Trustee shall first take into account
    the amount of all other property, which, for federal
    estate tax purposes, is includable in the Settlor’s
    gross estate and which passes or has passed in any
    manner (other than by the terms of this paragraph) to
    the Settlor’s wife in a form which qualifies for the
    marital deduction. The Trustee shall also take into
    account all other deductions and all credits against
    the federal estate tax finally allowed to the Settlor’s
    estate for federal estate tax purposes.
    In making the computation necessary to determine
    such amount the final determination in the federal
    estate tax proceeding of the Settlor’s estate shall
    control. This amount shall be satisfied only out of
    assets that qualify for the marital deduction under the
    provisions of the Internal Revenue Code applicable at
    the time of the Settlor’s death or out of the proceeds
    of such assets. Assets distributed in kind in
    satisfaction of this amount shall be distributed at
    - 21 -
    their market value on the date or dates of
    distribution.
    The residual trust property, not held in the marital trust or
    otherwise distributed, was to go to petitioner, as was the after-
    tax principal of the marital trust upon Mrs. Black’s death.
    The amended trust document did not include the language in
    the original trust providing for the disposition of marital trust
    property to petitioner and instead substituted the following two
    provisions:
    If the Settlor’s wife, IRENE M. BLACK, survives
    the Settlor, then the Trustee shall distribute to the
    Settlor’s son, SAMUEL P. BLACK III, the sum of Twenty
    Million Dollars ($20,000,000). Any part or portion of
    this gift which the Settlor’s son, SAMUEL P. BLACK III,
    disclaims shall be added to the “Samuel and Irene Black
    Endowment” established by the Settlor with The
    Pennsylvania State University for the purpose of
    enhancing Penn State Erie, The Behrend College.
    During his lifetime, the Settlor established an
    endowment known as the “Samuel and Irene Black
    Endowment” with the Pennsylvania State University for
    the purpose of enhancing Penn State Erie, The Behrend
    College. Following the death of the Settlor’s wife,
    Irene M. Black, the Trustee shall distribute from the
    principal of the Marital Trust that amount, if any,
    which is needed to bring the funding level of the
    Endowment to Twenty Million dollars ($20,000,000). In
    determining the amount to be paid to the Endowment from
    the Marital Trust, the Trustee shall subtract all
    contributions made after 1995 by or on behalf of the
    Settlor during his lifetime, the Settlor’s son, Samuel
    P. Black III, and from the Settlor’s estate following
    his death, including contributions from The Black
    Family Foundation and contributions from The Samuel P.
    Black Fund at the Erie Community Foundation. The
    remaining principal of the Marital Trust shall be
    distributed to the Settlor’s son, SAMUEL P. BLACK III,
    if living, otherwise in accordance with Section D of
    this Article I.
    - 22 -
    The effect of those two provisions was to provide a maximum
    bequest of $20 million to Penn State Erie, The Behrend College
    (Penn State Erie).5
    Mr. and Mrs. Black’s Nonpartnership Assets and Income
    In 1993, at the time of the formation of Black LP, Mr. and
    Mrs. Black owned assets, other than Mr. Black’s Erie stock, worth
    more than $4 million.   Beginning in 1994 (the first full taxable
    year for Black LP) and for all years through 2001 (the year of
    Mr. Black’s death), the Blacks received cumulative income from
    sources other than Black LP of approximately $5,610,000, ranging
    from a low of approximately $303,000 (in 1994) to a high of
    approximately $2,228,000 (in 2001).6   Thus, both before and after
    the formation of Black LP, the Blacks received annual income from
    sources other than the Erie stock Mr. Black transferred to Black
    LP that was more than sufficient to cover their personal living
    expenses.
    5
    Both at the creation of the $20 million bequest to Penn
    State Erie in 1998 and when it was time to fund that bequest
    after Mr. Black’s death in 2001, Penn State Erie expressed a
    preference for cash, to which Mr. Black acquiesced. As a result
    of petitioner’s disclaimer of the $20 million bequest to him,
    pursuant to the terms of the amended trust, Penn State Erie
    received a $20 million cash bequest.
    6
    During that same period, the Blacks received cumulative
    income of approximately $22,544,000 from Black LP, which
    represented approximately 80 percent of their total income for
    the period.
    - 23 -
    Administration of the Estates
    Implementation of the Wills and the Revocable Trust
    Both Mr. and Mrs. Black appointed petitioner executor of
    their respective estates.   In that capacity, he filed a Form 706,
    United States Estate (and Generation-Skipping Transfer) Tax
    Return, on behalf of each estate (Mr. Black’s Federal estate tax
    return and Mrs. Black’s Federal estate tax return, respectively).
    Mr. Black’s Federal estate tax return was filed on September 12,
    2002, and Mrs. Black’s, on August 25, 2003.
    Pursuant to Mr. Black’s will, his residuary estate
    (everything other than his tangible personal property) was to be
    distributed according to the terms of the revocable trust.    Mrs.
    Black bequeathed her residuary estate to petitioner.   The
    foregoing provisions resulted in petitioner’s receipt of (1) all
    Mr. Black’s residuary estate not held in the marital trust and
    (2) the principal of the marital trust that remained after
    payment of the amount Mrs. Black’s estate owed because of “any
    increase in taxes payable by her estate because of the inclusion
    in her gross estate of all or any portion of * * * [the] Marital
    Trust.”   Petitioner did, however, disclaim the $20 million
    specific bequest to him in the revocable trust.   As a result,
    that bequest, by its terms, went to Penn State Erie and rendered
    inoperative the alternative method of providing $20 million to
    Penn State Erie through the marital trust.
    The short period between Mr. Black’s death, on December 12,
    2001, and Mrs. Black’s death, on May 25, 2002, did not provide
    - 24 -
    sufficient time to compute Mr. Black’s pecuniary bequest to the
    marital trust provided for under the terms of the revocable
    trust, and the marital trust was not funded as of the date of
    Mrs. Black’s death.   Moreover, because, pursuant to the terms of
    the revocable trust, the marital trust terminated upon Mrs.
    Black’s death, it was never funded.    In his capacity as the
    executor of Mrs. Black’s estate, petitioner deemed the marital
    trust to be funded on the date of her death.    In that same
    capacity, petitioner also made an election on Mr. Black’s estate
    tax return, under section 2056(b)(7), to treat the property
    funding the marital trust as qualified terminable interest
    property.7   He filed a statement with Mr. Black’s estate tax
    return explaining that he, as (successor) trustee of the
    revocable trust, intended to fund the marital trust with a
    portion of the 77.0876-percent class B limited partnership
    interest in Black LP that Mr. Black had assigned to the revocable
    trust during his lifetime.
    7
    Sec. 2056(a) permits a deduction from the decedent’s gross
    estate for “an amount equal to the value of any interest in
    property which passes * * * from the decedent to his surviving
    spouse”. Pursuant to sec. 2056(b)(1), however, a marital
    deduction is not ordinarily available for property passing to a
    surviving spouse where the interest of the surviving spouse may
    terminate or fail, e.g., as in this case, upon the surviving
    spouse’s death. Sec. 2056(b)(7), however, allows a marital
    deduction for qualified terminable interest property (QTIP),
    which is defined, in sec. 2056(b)(7)(B)(i), as property passing
    from a decedent in which the spouse has a qualified income
    interest for life, and to which a QTIP election applies.
    Respondent does not dispute that petitioner made a timely QTIP
    election.
    - 25 -
    The parties have stipulated (and we so find) that (1) the
    fair market value of a 77.0876-percent class B limited
    partnership interest in Black LP was $165,476,495 on December 12,
    2001 (the date of Mr. Black’s death), and (2) the fair market
    value of a 1-percent class B limited partnership interest in
    Black LP was $2,469,728 on May 25, 2002 (the date of Mrs. Black’s
    death), and $2,281,124 on November 25, 2002 (the alternate
    valuation date elected by Mrs. Black’s estate).
    The Secondary Offering
    Mr. Black’s estate reported a Federal estate tax liability
    of approximately $1.7 million, which, on or about September 12,
    2002, it paid with its cash assets.    Mrs. Black’s estate lacked
    sufficient liquid assets to pay what were anticipated to be
    substantial Federal and State tax liabilities attributable to the
    Black LP class B limited partnership interest that was to
    constitute the principal of the marital trust.
    In an attempt to borrow money to pay both tax liabilities
    and administration expenses on behalf of Mrs. Black’s estate,
    petitioner, as executor of the estate, first approached
    commercial lending institutions, including PNC Bank, National
    City Bank, Wachovia Bank, Credit Suisse, First Boston, Goldman
    Sachs, and several local banks.   None of those institutions would
    accept the pledge of a partnership interest in Black LP as
    security for a loan.   Instead, each wanted Black LP to pledge its
    Erie stock as security.   In addition, they required “collaring”,
    an agreement that the Erie shares would be sold if their value
    - 26 -
    fell below a certain price.    Petitioner found those terms
    unacceptable.    He was particularly concerned that the Erie shares
    would drop in price because of the discord among Erie’s board of
    directors and that the “collaring” requirement might result in
    the forced sale of the thinly traded Erie shares, which would
    further depress their price.
    Petitioner next turned to Erie for a loan, but Erie was not
    interested in lending money to either the trust or the estate.
    On July 29, 2002, Mr. Cullen sent a letter to Erie’s president
    and chief executive officer describing Mrs. Black’s estate’s need
    for cash and suggesting as one “liquidity solution” Erie’s
    participation in a secondary offering of some of Black LP’s Erie
    stock.    Erie felt that a secondary offering would enhance Erie
    shareholder value, and it agreed with Messrs. Cullen and Black to
    participate in a secondary offering of about one-third of Black
    LP’s Erie stock.
    On January 29, 2003, Black LP sold 3 million shares of Erie
    class A nonvoting stock in a secondary offering at $34.50 per
    share.8   As a condition of Erie’s participation in the secondary
    offering, Black LP agreed to pay Erie’s expenses incurred in
    connection therewith, which included an underwriting discount of
    $1.81 per share resulting in net proceeds to Black LP, before
    8
    At the time, Black LP owned 8,726,250 shares of Erie class
    A common stock so that the 3 million shares sold in the secondary
    offering represented slightly more than one-third of Black LP’s
    Erie stock.
    - 27 -
    other expenses, of $32.69 per share, for a total of approximately
    $98 million.
    The Transfer of Funds From Black LP to Mrs. Black’s Estate
    and The Revocable Trust
    On October 11, 2002, in preparation for the secondary
    offering and on behalf of Mrs. Black’s estate and the revocable
    trust, petitioner entered into a “Loan Commitment Agreement” with
    Black LP (the loan agreement) whereby Black LP (as “Lender”),
    upon receipt of the proceeds from the secondary offering, agreed
    to lend $71 million to Mrs. Black’s estate and the revocable
    trust (as “Borrowers”) “with all interest and principal due in
    full not earlier than November 30, 2007.”   The borrowers agreed
    to “reimburse the Lender” for all expenses it incurred in
    connection with the secondary offering.
    On February 25, 2003, Black LP transferred $71 million to
    Mrs. Black’s estate and the revocable trust in exchange for a
    promissory note for that amount executed by petitioner on behalf
    of both.   The note provided for 6 percent simple interest with
    all principal and interest “due and payable not earlier than
    November 30, 2007.”9   The note provided that the borrowers “shall
    have no right to prepay principal or interest at any time.”    The
    note further provided for a “late charge” equal to 5 percent of
    9
    At trial, the parties stipulated that the accumulated
    interest would, in fact, be paid on Nov. 30, 2007 (which was the
    next day), but Mr. Cullen testified that the $71 million
    principal amount would be refinanced, perhaps by means of
    installment payments, because Mrs. Black’s estate did not have
    sufficient liquidity to repay it.
    - 28 -
    any payment “not received by the Lender within TEN (10) days
    after the due date” (referred to as an “overdue payment”).
    Also, on February 25, 2003, the parties to the loan
    agreement executed a “Pledge Agreement” and an “Assignment of
    Partnership Interest” whereby, as security for the $71 million
    loan, Mrs. Black’s estate and the revocable trust pledged and
    assigned their class B limited partnership interest in Black LP
    to the lender, Black LP.
    The interest due on November 30, 2007, was computed to be
    $20,296,274 and was deducted, in full, on Schedule J, Funeral
    Expenses and Expenses Incurred in Administering Property Subject
    to Claims, of Mrs. Black’s estate tax return.
    Mrs. Black’s Estate’s Use of the Funds Received From Black LP
    Mrs. Black’s estate dispersed the $71 million it received
    from Black LP (and an additional $309,946) as follows:
    U.S. Treasury--Federal
    estate tax payment            $54,000,000
    U.S. Treasury--Federal
    estate tax refund             (22,263,473)   $31,736,527
    Pennsylvania Department
    of Revenue--inheritance
    & estate taxes                                15,700,000
    Erie Insurance Co.
    reimburse costs                                   982,070
    Petitioner--executor fees                        1,155,000
    MacDonald Illig--legal fees                      1,155,000
    Gift to Penn State Erie                         20,000,000
    U.S. Treasury--fiduciary
    income taxes                                      515,973
    - 29 -
    Pennsylvania Department of
    Revenue--fiduciary
    income taxes                                      65,376
    Total                                       71,309,946
    The $982,070 payment was to reimburse Black LP for its
    reimbursement of Erie for Erie’s expenses in conjunction with the
    secondary offering, including legal fees, the cost of filings
    with the Securities and Exchange Commission, and some of the
    costs incurred for meetings with investment firms.     Mrs. Black’s
    estate deducted that expenditure, in addition to the $1,155,000
    payment to MacDonald Illig for legal services and the $1,155,000
    paid to petitioner as executor and/or trustee fees, as
    administration expenses.10
    OPINION
    I.   The Burden of Proof Issue
    If a taxpayer introduces credible evidence with respect to
    any factual issue relevant to ascertaining the taxpayer’s tax
    liability and the taxpayer complies with all substantiation
    requirements, maintains all required records, and cooperates with
    the Commissioner’s reasonable requests for witnesses, section
    7491 places the burden of proof on the Commissioner with respect
    to that issue.   Sec. 7491(a)(1) and (2); Rule 142(a)(2).
    Petitioner alleges that he has satisfied all the prerequisites to
    the application of section 7491 and that, therefore, “Respondent
    bears the burden of proof under § 7491(a) with regard to each of
    the factual issues in this case”.     Respondent alleges that
    10
    Mr. Black’s estate did not claim any deduction for
    administration expenses.
    - 30 -
    petitioner has “not introduced credible evidence with respect to
    the material factual issues in this case as required by §
    7491(a).”
    We need not decide whether section 7491(a) applies to the
    material factual issues in these consolidated cases because we
    find that a preponderance of the evidence supports our resolution
    of each of those issues.     Therefore, resolution of those issues
    does not depend on which party bears the burden of proof.       See,
    e.g., Estate of Bongard v. Commissioner, 
    124 T.C. 95
    , 111 (2005).
    II.   The Section 2036 Issue
    A.    General Principles
    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.”     Section 2051 defines the taxable estate as
    “the value of the gross estate” less applicable deductions.
    Section 2031(a) specifies that the gross estate comprises “all
    property, real or personal, tangible or intangible, wherever
    situated”, to the extent provided in sections 2033 through 2046.
    Section 2033 broadly provides:      “The value of the gross
    estate shall include the value of all property to the extent of
    the interest therein of the decedent at the time of his death.”
    Sections 2034 through 2046 then explicitly mandate the inclusion
    of several more narrowly defined classes of assets.       Among those
    specific sections is section 2036, which provides, in pertinent
    part, as follows:
    - 31 -
    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.
    Section 20.2036-1(c)(1)(i), Estate Tax Regs., further
    explains:    “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.”11
    “The general purpose of * * * [section 2036] is ‘to include
    in a decedent’s gross estate transfers that are essentially
    testamentary’ in nature.”    Ray v. United States, 
    762 F.2d 1361
    ,
    1362 (9th Cir. 1985) (quoting United States v. Estate of Grace,
    
    395 U.S. 316
    , 320 (1969)).     Accordingly, courts have emphasized
    that the statute “describes a broad scheme of inclusion in the
    gross estate, not limited by the form of the transaction, but
    11
    During the audit years, the identical language was
    contained in sec. 20.2036-1(a), Estate Tax Regs. The language
    was moved to sec. 20.2036-1(c)(1)(i), Estate Tax Regs., by T.D.
    9414, 2008-
    35 I.R.B. 454
    , 458, and that provision is applicable
    to estates of decedents dying after Aug. 16, 1954. See sec.
    20.2036-1(c)(3), Estate Tax Regs.
    - 32 -
    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 20.2036-1(a), Estate Tax Regs., refers to the
    section 20.2043-1, Estate Tax Regs., definition of “a bona fide
    sale for an adequate and full consideration in money or money’s
    worth” (the parenthetical exception).   In pertinent part, section
    20.2043-1(a), Estate Tax Regs., provides:   “To constitute a bona
    fide sale for an adequate and full consideration in money or
    money’s worth, the transfer must have been made in good faith,
    and the price must have been an adequate and full equivalent
    reducible to a money value.”
    We must decide whether the Erie stock that Mr. Black
    contributed to Black LP, rather than his partnership interest
    therein, is includable in his gross estate under section 2036(a)
    because (1) his transfer of that stock to Black LP did not
    constitute a bona fide sale for an adequate and full
    consideration and (2) he retained an interest in the transferred
    stock within the meaning of section 2036(a)(1) or (2).    We begin
    by considering whether Mr. Black’s transfer of Erie stock to
    Black LP was a bona fide sale for adequate and full
    consideration.   We find that it was.
    - 33 -
    B.   Mr. Black’s Transfer of Erie Stock to Black LP as a Bona
    Fide Sale for Adequate and Full Consideration
    1.   Introduction
    To avail himself of the parenthetical exception, petitioner
    must show that the transfer was both (1) a bona fide sale and
    (2) for adequate and full consideration.   We consider each
    requirement in turn.
    2.   Mr. Black’s Transfer of Erie Stock to Black LP as a
    Bona Fide Sale of That Stock
    a.   General Principles
    The Court of Appeals for the Third Circuit, to which an
    appeal of these cases would lie, barring stipulation to the
    contrary, see sec. 7482(b), has stated that, whereas a “bona fide
    sale” does not necessarily require an “arm’s length transaction”,
    the sale (which we understand to include an exchange) still must
    be “made in good faith”, Estate of Thompson v. Commissioner, 
    382 F.3d 367
    , 383 (3d Cir. 2004) (citing section 20.2043-1(a), Estate
    Tax Regs.), affg. 
    T.C. Memo. 2002-246
     (2002).   The Court of
    Appeals further stated that “A ‘good faith’ transfer to a family
    limited partnership must provide the transferor some potential
    for benefit other than the potential estate tax advantages that
    might result from holding assets in the partnership form.”     
    Id.
    The Court of Appeals was “mindful of the mischief that may arise
    in the family estate planning context” but concluded that “such
    mischief can be adequately monitored by heightened scrutiny of
    intra-family transfers, and does not require a uniform
    - 34 -
    prohibition on transfers to family limited partnerships.”      Id. at
    382.
    The requirement that the transfer be in good faith--that is,
    provide the transferor some potential for benefit other than
    estate tax savings--is consistent with this Court’s requirement,
    “[i]n the context of family limited partnerships”, that the
    transferor have “a legitimate and significant nontax reason for
    creating the family limited partnership”.     See Estate of Bongard
    v. Commissioner, 
    124 T.C. at 118
    .     We further required that “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.”     
    Id.
       A finding that the transferor
    sought to save estate taxes does not preclude a finding of a bona
    fide sale so long as saving estate taxes is not the predominant
    motive.    Accord Estate of Mirowski v. Commissioner, 
    T.C. Memo. 2008-74
    ; see Estate of Schutt v. Commissioner, T.C. Memo. 2005-
    126 (“Thus, the proffered evidence is insufficient to establish
    that estate tax savings were decedent’s predominant reason for
    forming Schutt I and II and to contradict the estate’s contention
    that a true and significant motive for decedent’s creation of the
    entities was to perpetuate his buy and hold investment
    philosophy.”).
    b.   Arguments of the Parties
    Petitioner argues that the “undisputed facts” show that the
    formation of Black LP was motivated by “‘significant and
    - 35 -
    legitimate’ non-tax reasons.”    He notes that Mr. Black’s primary
    reasons for wanting to form Black LP were to provide centralized
    long-term management and protection of the Black family’s
    holdings in Erie stock, to preserve Mr. Black’s buy-and-hold
    investment philosophy with respect to that stock, to pool the
    family’s stock so that it could be voted as a block (thereby
    giving the family the swing vote in the not unlikely event of a
    split between the two H.O. Hirt trust shareholders), and to
    protect the Erie stock from creditors and divorce.    Petitioner
    further argues that Black LP accomplished those goals as follows:
    !   Adherence to Mr. Black’s buy-and-hold investment
    philosophy resulted in the growth of Black LP’s net
    asset value from $80 million when the partnership
    was formed in 1993 to over $315 million when Mr.
    Black died in 2001;
    !   the partnership prevented petitioner from selling
    or encumbering the $11 million of Erie stock he
    contributed to the partnership;
    !   the Erie stock the grandson trusts contributed to
    the partnership was not available for distribution
    to Mr. Black’s grandsons when their trusts
    terminated in 1995 and 2000;
    !   the Black family’s consolidated position allowed it
    to maintain a seat on the Erie board of directors
    through 2004, when, because he had lost confidence
    - 36 -
    in Erie, petitioner resigned from the board and
    decided to sell all the partnership’s Erie stock;
    !   the partnership protected petitioner’s Erie stock
    from equitable division in his divorce and reduced
    the value of the marital estate that his wife was
    entitled to receive.
    Petitioner relies on the similarity of the facts here to the
    facts in Estate of Schutt v. Commissioner, 
    supra,
     in which we
    found that the use of a family partnership to perpetuate the
    decedent’s buy-and-hold investment strategy with respect to
    publicly traded Dupont and Exxon stock, in the “unique
    circumstances” of that case, constituted “a legitimate and
    significant non-tax purpose” for the formation of the
    partnership.    Petitioner also cites other opinions for the
    proposition that consolidating family assets and providing for
    long-term centralized management of those assets are valid nontax
    purposes for forming a family limited partnership.    E.g., Kimbell
    v. United States, 
    371 F.3d 257
     (5th Cir. 2004); Estate of
    Mirowski v. Commissioner, 
    supra;
     Estate of Stone v. Commissioner,
    
    T.C. Memo. 2003-309
    ; Estate of Harrison v. Commissioner, 
    T.C. Memo. 1987-8
    .    Morever, petitioner argues that all the nontax
    reasons for forming Black LP were based on Mr. Black’s actual, as
    opposed to theoretical, concerns.
    Respondent rejects petitioner’s arguments.    Respondent
    acknowledges that Mr. Black subscribed to a buy-and-hold
    investment philosophy, particularly with respect to Erie stock,
    - 37 -
    and that Black LP was formed to hold the Erie stock that he,
    petitioner, and the grandson trusts previously held so that the
    family would continue to control that stock.   Respondent
    disagrees, however, that the transfers of Erie stock to Black LP
    were necessary to achieve that goal or that Mr. Black’s alleged
    concerns over the potential disposition of Erie stock by
    petitioner and the grandson trusts were significant factors in
    his decision to form Black LP.   In reaching those conclusions,
    respondent purports to distinguish the caselaw on which
    petitioner relies.12
    12
    With respect to the bona fide sale issue, the parties take
    opposing views on the similarity of these cases to Estate of
    Schutt v. Commissioner, 
    T.C. Memo. 2005-126
    . Whether we reach
    the same result here that we reached in Estate of Schutt will
    depend on our answers to two questions: (1) Whether Mr. Black’s
    buy-and-hold philosophy with respect to the family’s Erie stock
    was a legitimate and significant nontax purpose for the formation
    of, and contribution of Erie stock to, Black LP, and (2) if so,
    whether, to ensure the implementation of that philosophy and the
    anticipated nontax benefits attendant thereupon, Mr. Black and
    petitioner (individually and as trustee of the grandson trusts)
    needed to transfer their Erie stock to Black LP.
    Certain of respondent’s arguments in support of his position
    that Mr. Black did not make a bona fide sale of Erie stock to
    Black LP, e.g., that Black LP did not have a functioning business
    operation, that Black LP held only passive assets, and that
    petitioner was not substantially involved in the formation of
    Black LP, allege the absence of factors that were also absent in
    Estate of Schutt, and, for that reason, are not persuasive in
    distinguishing that case. Other of respondent’s arguments, e.g.,
    that Mr. Black allegedly failed to retain sufficient assets
    either to pay the estate and inheritance taxes that would be
    incurred by his and Mrs. Black’s estates or to fund the $20
    million endowment that he had established for Penn State
    University, relate to the issue of whether Mr. Black retained an
    interest in the Erie stock at the time of his death for purposes
    of sec. 2036(a)(1). Therefore, they are inapposite to the bona
    fide sale question.
    - 38 -
    In the recent case of Estate of Jorgensen v. Commissioner,
    
    T.C. Memo. 2009-66
    , we rejected the taxpayer’s argument that the
    decedent’s “investment philosophy premised on buying and holding
    individual stocks with an eye toward long-term growth and capital
    preservation” was “a legitimate or significant nontax reason for
    transferring the bulk of one’s assets to a partnership.”    In
    reaching that decision, we distinguished Estate of Schutt v.
    Commissioner, 
    T.C. Memo. 2005-126
    , on the ground that in that
    case “[t]he 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.”    Estate of Jorgensen v.
    Commissioner, 
    supra n.10
    .
    In Estate of Schutt we acknowledged that the Court of
    Appeals for the Third Circuit, in Estate of Thompson v.
    Commissioner, 
    382 F.3d at 380
    , “suggested that 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.”    We
    stated that we agreed with that premise, “particularly in cases
    where the securities are contributed almost exclusively by one
    person”, citing Estate of Strangi v. Commissioner, 
    T.C. Memo. 2003-145
    , and Estate of Harper v. Commissioner, T.C. Memo. 2002-
    121.    Nonetheless, we determined that the entities in question
    - 39 -
    had been formed for a legitimate and significant nontax purpose,
    reasoning as follows:
    In the unique circumstances of this case, however, a
    key difference exists in that decedent’s primary
    concern was in perpetuating his philosophy vis-a-vis
    the stock of the * * * [trusts for his children and
    grandchildren] in the event of a termination of one of
    those trusts. Here, by contributing stock in the
    Revocable Trust, decedent was able to achieve that aim
    with respect to securities of the * * * trusts even
    exceeding the value of his own contributions. In this
    unusual scenario, we cannot blindly apply the same
    analysis appropriate in cases implicating nothing more
    than traditional investment management considerations.
    To summarize, the record reflects that decedent’s
    desire to prevent sale of core holdings in the * * *
    trusts in the event of a distribution to beneficiaries
    was real, was a significant factor in motivating the
    creation of * * * [the entities at issue], was
    appreciably advanced by formation of * * * [those
    entities], and was unrelated to tax ramifications.
    * * *
    Respondent attempts to distinguish these cases from Estate
    of Schutt v. Commissioner, 
    supra,
     by arguing that, unlike the
    decedent’s concerns in that case regarding the potential
    dissipation of the family’s DuPont and Exxon stock, Mr. Black’s
    concerns regarding the potential dissipation of the Erie stock
    held by petitioner and the grandson trusts were either ill
    founded (in the case of petitioner’s stock) or insignificant (in
    the case of the grandson trusts’ stock).
    c.    Analysis
    (1)    Introduction
    Between 1927, when Erie hired him to be its first claims
    manager, and 1997, when petitioner succeeded him as a member of
    the board of directors (a period covering almost his entire adult
    - 40 -
    life), Mr. Black was an employee, officer, and/or director of
    Erie.     His ties to Erie and his belief in its financial prospects
    were easily the equal of the decedent’s ties to and belief in
    DuPont and Exxon in Estate of Schutt v. Commissioner, 
    supra.
    Respondent does not disagree that Mr. Black desired to
    perpetuate the family’s Erie stock holdings and, given Mr.
    Black’s longstanding relationship with Erie and his strong belief
    in its favorable earnings prospects, that that was a legitimate
    and significant desire on Mr. Black’s part.     Respondent does
    disagree, however, that that desire was either a significant or
    legitimate motivation for the formation of Black LP.
    Petitioner argues that Mr. Black formed Black LP as the best
    means of implementing his buy-and-hold philosophy to protect his
    family’s Erie stock.     Protecting his family’s Erie stock was Mr.
    Black’s principal nontax motivation, and that motivation arose
    out of his concerns regarding the potential dissipation of (1)
    petitioner’s unpledged Erie stock and (2) the grandson trusts’
    Erie stock.     Together, those two blocks of Erie stock were the
    only Black-owned Erie stock that Mr. Black did not himself
    control.     We will address the legitimacy and significance of each
    of those concerns.
    (2)   Petitioner’s Erie Stock
    Respondent argues that there was no evidence in 1993, when
    Black LP was formed, that petitioner intended to sell any of his
    Erie stock.     He further argues that, although Mr. Black may have
    been unhappy with petitioner’s decision to pledge some of his
    - 41 -
    Erie stock as collateral for a loan, the record does not support
    a finding that Mr. Black “lacked confidence in petitioner’s
    ability to manage the family’s assets.”   Respondent concludes
    that, had Mr. Black harbored any significant concerns about
    petitioner’s commitment to perpetuate his buy-and-hold investment
    philosophy regarding the continued retention of the family’s Erie
    stock, he would not have transferred his managing partner
    interest to petitioner in 1998 or arranged for petitioner to
    succeed to his and the marital trust’s limited partnership
    interests when both he and Mrs. Black had died.    Respondent’s
    arguments overlook petitioner’s main point, which is that,
    although Mr. Black may have been satisfied that petitioner shared
    his goal of retaining the family’s existing investment in Erie
    stock, he feared that petitioner’s relationship with his wife and
    in-laws might require him, against his better judgment or, even,
    against his will, to dispose of or, alternatively, to pledge as
    collateral for a new loan additional Erie stock.    In particular,
    Mr. Black worried that petitioner’s marriage would end in a
    contentious divorce and about his father-in-law’s present and
    continuing need for financial support.
    Petitioner’s position is supported by the undisputed
    testimony of Mr. Cullen, Mr. Black’s business and estate planning
    lawyer.   Respondent argues that any doubts Mr. Black may have had
    concerning the status of petitioner’s marriage were speculative
    or theoretical and not based on fact.    As respondent states, at
    the time of the formation of Black LP in 1993, petitioner had
    - 42 -
    been married for 28 years, and Mr. Black did not learn of
    petitioner’s marriage difficulties and impending divorce until
    1998.   As respondent suggests, Mr. Black’s concerns were likely
    based on his negative opinion of both Karen Black and her
    parents.   Respondent does not suggest, however, that the facts on
    which that negative opinion was based were not true.   And
    respondent does not cast significant doubt on Mr. Cullen’s
    testimony that Mr. Black did, in fact, harbor concerns that
    petitioner might be pressured into selling or pledging additional
    Erie stock to raise money for Karen Black or her parents.
    Moreover, respondent argues that petitioner shared his father’s
    buy-and-hold philosophy with respect to the family’s Erie stock.
    Yet that suggests that the previous borrowing secured by 125,000
    Erie shares was at the request of Karen Black and her parents,
    which lends credence to Mr. Black’s concerns.   We also note that
    Mr. Black’s fears that petitioner’s marriage would not last
    proved to be prophetic as divorce proceedings began 7 years later
    and concluded with a divorce 4 years after that.
    Respondent also argues that, even if Mr. Black was, in fact,
    concerned about protecting petitioner’s Erie stock in the event
    of divorce, putting the stock in Black LP did not enhance the
    protections already available under State law, citing 23 Pa.
    Cons. Stat. sec. 3501(a)(3) (1990).    Pursuant to that provision,
    “[p]roperty acquired by gift, except between spouses, bequest,
    devise or descent” does not constitute “marital property” subject
    to equitable division between divorcing spouses except to the
    - 43 -
    extent of the increase in the value of such property “prior to
    the date of final separation”.   Respondent argues that that
    provision afforded the same protection against Karen Black’s
    potential acquisition of the Erie stock that Mr. Black
    transferred by gift to petitioner (which includes all
    petitioner’s Erie stock) as did the transfer of that stock to
    Black LP.   Respondent makes the same argument with respect to the
    Erie stock that petitioner stood to inherit upon Mrs. Black’s
    death.
    Respondent’s argument overlooks the fact that, even though
    petitioner’s Erie stock was nonmarital property exempt (except to
    the extent of some marital period appreciation) from equitable
    division under Pennsylvania law, that stock might nonetheless
    constitute the only significant asset available, as a practical
    matter, to fund whatever award might have been made to Karen
    Black under a divorce decree or marital settlement agreement.
    That point was acknowledged by respondent’s counsel during his
    cross-examination of Mr. Cullen:
    Q (by respondent’s counsel): Okay. I guess what
    I’m saying is does it matter? If the Erie stock is
    inherited, it’s not marital property. The spouse can’t
    reach it. If it’s partnership units that are
    inherited, that’s also nonmarital property, so maybe
    we’re talking about the same thing, the advantage
    supposedly of the partnership interest is a valuation
    question of discounted appreciation, if you will,
    versus the full value of the appreciation?
    A: But I’m afraid that your question might assume
    that once you calculate the marital estate, and you
    look at the Erie stock, that she only gets the
    appreciation. One of the things that could be awarded
    to her as part of her number is the Erie stock. Do you
    follow me?
    - 44 -
    Q: I don’t because if it’s nonmarital property,
    how can it be awarded to her?
    THE COURT: She’s due a sum of money,
    and they can fund it with anything they
    choose?
    MR. THORPE:    Yes.
    THE WITNESS:    Yes, sir.
    MR. THORPE:    That’s my point, too.
    THE WITNESS: But the partnership
    prevented it from being funded with Erie
    stock.
    The point is also illustrated by the 2005 Marital Settlement
    Agreement between petitioner and Karen Black, pursuant to which
    she was awarded the 125,000 Erie shares that, previously, had
    been pledged as security for a loan.      Conversely, Karen Black did
    not receive any portion of petitioner’s interest in Black LP,
    which lends credence to Mr. Black’s belief that the transfer of
    petitioner’s unpledged Erie stock to a family partnership would
    help to protect it from Karen Black’s property claims incident to
    any divorce.    Therefore, we conclude that Mr. Black reasonably
    believed that the transfer of Erie stock to Black LP would
    protect it from the claims of potential creditors, including
    Karen Black.    See Kimbell v. United States, 
    371 F.3d 257
    , 268
    (5th Cir. 2004); Keller v. United States, __ F. Supp. 2d __, 104
    AFTR 2d 2009-615, 2009-2 USTC par. 60,579 (S.D. Tex. 2009).
    (3)    The Grandson Trusts’ Erie Stock
    Respondent argues that the potential dissipation of the Erie
    stock that Mr. Black transferred to the grandson trusts between
    October 1988 and January 1993 could not have been a significant
    - 45 -
    factor in Mr. Black’s decision to form Black LP because (1) those
    transfers began less than 4 years before the decision to form
    Black LP and continued to occur even after that decision,
    suggesting Mr. Black’s lack of concern that his grandsons might
    dispose of the stock upon vesting, and (2) the Erie stock in
    those trusts represented an “insignificant portion”
    (approximately 1.2 percent) of the family’s holdings.
    The fact that Mr. Black transferred Erie stock to the
    grandson trusts shortly before and even after the decision to
    form Black LP is not necessarily inconsistent with the undisputed
    testimony of Mr. Cullen and petitioner that Mr. Black was
    concerned that his grandsons would dispose of or borrow against
    the security of their Erie stock upon the termination of the
    trusts.    In October 1988, when Mr. Black began funding the trusts
    with Erie stock, that stock was worth a fraction of its worth in
    1992 and 1993, when Mr. Black made the decision to form Black LP.
    Also, at that time his grandsons were both less than 20 years
    old.    Those facts suggest that the earlier transfers, between
    October 1988 and December 1990, did not concern Mr. Black because
    the value of the Erie stock transferred to the grandson trusts
    was relatively low, the number of Erie shares was small, and his
    grandsons had not reached an age at which their lack of ambition
    was important.    Two years later, when the Erie stock had
    appreciated substantially and his grandsons’ lack of ambition and
    financial responsibility persisted, Mr. Black transferred the
    trusts’ Erie stock to a family partnership to keep it from his
    - 46 -
    grandsons.    That decision seems reasonable.   Moreover, Mr.
    Black’s additional transfers to the grandson trusts in December
    1992 and January 1993 were not inconsistent with his concerns
    regarding his grandsons because, we presume, he and petitioner
    had already decided to transfer the corpus of each of those
    trusts to the soon-to-be-formed family partnership.
    In Estate of Schutt v. Commissioner, 
    T.C. Memo. 2005-126
    , we
    found that the decedent’s desire to prevent his grandchildren
    from selling DuPont and Exxon stock was a legitimate and
    significant nontax purpose for the creation of the entities at
    issue in that case.    Respondent argues that Estate of Schutt is
    distinguishable in that the children’s trusts in that case
    controlled DuPont and Exxon stock worth approximately $50 million
    (which exceeded the value of DuPont and Exxon stock that Mr.
    Schutt himself contributed to the entities at issue), an amount
    representing “a substantial portion of the Schutt family’s
    wealth.”     Respondent notes that, in contrast, “the stock held by
    Mr. Black’s grandsons’ trusts was, at the time of the
    Partnership’s formation, relatively insignificant both in terms
    of its value ($963,800) and as a percentage (approximately 1%) of
    the Black family wealth.”    Respondent further notes that, in
    Estate of Schutt, there was a history of stock sales by
    grandchildren that is absent in these cases, which is to say, Mr.
    Black’s concerns, unlike Mr. Schutt’s, were purely speculative.
    We do not agree that Mr. Black’s concerns regarding his
    grandsons were speculative or, in the language of this Court in
    - 47 -
    Estate of Bongard v. Commissioner, 
    124 T.C. at 118
    , a
    “theoretical justification” rather than an “actual motivation”.
    We find that Mr. Black’s concerns regarding his grandsons’
    potential dissipation of all or some the Erie stock they would
    receive upon the partial and full termination of their trusts was
    reasonable given their unwillingness to seek employment and their
    financial inexperience, and that those concerns motivated Mr.
    Black to transfer the Erie stock in those trusts to Black LP.
    We agree that the Erie class A nonvoting stock in the
    grandson trusts, by itself, was, as respondent argues,
    “relatively insignificant” as a percentage of the value of the
    family’s Erie stock.    But to focus on that stock in isolation is
    improper.   Mr. Black was concerned about the potential
    dissipation of both that stock and petitioner’s stock, which,
    together, represented more than 16.6 percent of the family’s Erie
    class A nonvoting stock and, in 1993, had a value of more than
    $12 million.     Although the value of that Erie stock is not nearly
    as great as the value of the grandchildren trust stock in Estate
    of Schutt v. Commissioner, 
    supra,
     it is nonetheless substantial,
    and we find that Mr. Black’s concern regarding the potential
    dissipation of all or some of that stock was significant as well
    as legitimate.
    Therefore, we agree with petitioner that these cases, like
    Estate of Schutt, present a set of unique circumstances that, on
    balance, require a finding that Black LP was formed for a
    - 48 -
    legitimate and significant nontax purpose; i.e., to perpetuate
    the holding of Erie stock by the Black family.13
    d.   Conclusion
    Mr. Black’s transfer of Erie stock to Black LP constituted a
    bona fide sale of that stock.
    3.   Mr. Black’s Sale of Erie Stock to Black LP as a
    Sale for Adequate and Full Consideration in Money
    or Money’s Worth
    a.   Analysis
    In Estate of Bongard v. Commissioner, 
    124 T.C. at 118
    , we
    held that the second prong of the two-part test for finding a
    bona fide sale for adequate and full consideration is met if “the
    transferors received partnership interests proportionate to the
    value of the property transferred.”      The parties have stipulated
    (and we have found) that each partner in Black LP “received an
    interest in the Partnership proportionate to the fair market
    value of the assets contributed.”     Relying on that stipulation,
    petitioner concludes:     “Thus, the ‘adequate and full
    consideration’ prong has been satisfied.”
    After noting petitioner’s suggestion that “the test for the
    ‘bona fide sale exception’ adopted by this Court in * * * [Estate
    of Bongard v. Commissioner, 
    124 T.C. 95
     (2005),] is the same as
    13
    Assuming Mr. Black's desire to perpetuate the holding of
    Erie stock by the Black family constituted a legitimate and
    significant nontax purpose for the formation of Black LP,
    respondent does not argue, in the alternative, that Mr. Black's
    transfer of less than all of his Erie stock in exchange for a
    controlling general partnership interest in Black LP would have
    sufficed to accomplish that purpose. Therefore, we do not
    address that alternative argument.
    - 49 -
    the test set forth by the Third Circuit in Estate of Thompson v.
    Commissioner, 
    382 F.3d 367
     (3d Cir. 2004)”, respondent states:
    “Petitioners misapprehend the Estate of Bongard test.”
    Respondent then argues that, under Estate of Bongard, “in the
    absence of a tax-independent purpose, the receipt of
    proportionate partnership interests does not constitute the
    receipt of any consideration, but is, rather, a mere recycling of
    value.”   Respondent then quotes Estate of Thompson v.
    Commissioner, 
    382 F.3d at
    381:
    Where, as here, the transferee partnership does not
    operate a legitimate business, and the record
    demonstrates the valuation discount provides the sole
    benefit for converting liquid, marketable assets into
    illiquid partnership interests, there is no transfer
    for consideration within the meaning of § 2036(a).
    Respondent concludes as follows:
    Each of these courts is saying essentially the
    same thing, that the receipt of a proportionate
    interest in an entity that is imbued with a tax-
    independent purpose does not deplete the gross estate.
    Stated another way, receipt of a proportionate interest
    is necessary, but not sufficient, to constitute
    adequate consideration. In the absence of a tax-
    independent purpose, the interest constitutes no
    consideration. Indeed, that is exactly what the
    Bongard court found with regard to the partnership
    interests received in exchange for the LLC interests.
    
    124 T.C. at 129
    .
    Here, * * * the record establishes that the
    Partnership did not operate a legitimate business and
    that the sole purpose for converting Mr. Black’s liquid
    interest in his Erie stock into an illiquid interest in
    the Partnership was to obtain valuation discounts for
    gift and estate tax purposes. Consequently,
    petitioners have not established that the transfer
    satisfies the “adequate and full consideration” prong
    of the “bona fide sale exception.”
    - 50 -
    Thus, respondent argues that the adequate and full
    consideration prong depends on the legitimate and significant
    nontax purpose prong.   Of perhaps greater significance to these
    cases, which, as noted supra, if appealed, are likely to be
    appealed to the Court of Appeals for the Third Circuit, is
    respondent’s argument that his analysis reflects the position of
    both that court, as set forth in Estate of Thompson v.
    Commissioner, 
    supra,
     and this Court, as set forth in Estate of
    Bongard v. Commissioner, 
    supra.
    We have determined that Mr. Black had a legitimate and
    significant nontax purpose for his transfer of Erie stock to
    Black LP.   Because respondent stipulated that the Black LP
    partners received partnership interests proportionate to the
    value of the Erie stock they transferred, he has, in effect,
    conceded that Mr. Black satisfied the adequate and full
    consideration prong, and we so find.
    Our determination herein is consistent with our decision in
    Estate of Schutt v. Commissioner, 
    T.C. Memo. 2005-126
    , which was
    also appealable to the Court of Appeals for the Third Circuit.
    In that case, we observed that, in Estate of Bongard v.
    Commissioner, 
    124 T.C. at 124
    , the presence of the following four
    factors supported a finding that the adequate and full
    consideration requirement had been satisfied:   (1) The
    participants in the entity at issue received interests
    proportionate to the value of the property each contributed to
    the entity; (2) the respective contributed assets were properly
    - 51 -
    credited to the transferors’ capital accounts; (3) distributions
    required negative adjustments to distributee capital accounts;
    and (4) there was a legitimate and significant nontax reason for
    formation of the entity.
    In these cases, respondent has conceded that the first
    factor is present, and we have determined that the fourth factor
    is present.   The Black LP partnership returns filed for 1994 and
    subsequent years demonstrate that the second and third factors
    are present, too.
    In Estate of Schutt v. Commissioner, 
    supra,
     like respondent
    in this case, we viewed the position of the Court of Appeals for
    the Third Circuit in Estate of Thompson v. Commissioner, 
    382 F.3d 367
     (3d Cir. 2004), as being consistent with our position in
    Estate of Bongard v. Commissioner, 
    124 T.C. 95
     (2005), commenting
    as follows:
    The Court of Appeals for the Third Circuit has
    likewise opined that while the dissipated value
    resulting from a transfer to a closely held entity does
    not automatically constitute inadequate consideration
    for section 2036(a) purposes, heightened scrutiny is
    triggered. Estate of Thompson v. Commissioner, 
    382 F.3d at 381
    . To wit, and consistent with the focus of
    the Court of Appeals in the bona fide sale context,
    where “the transferee partnership does not operate a
    legitimate business, and the record demonstrates the
    valuation discount provides the sole benefit for
    converting liquid, marketable assets into illiquid
    partnership interests, there is no transfer for
    consideration within the meaning of § 2036(a).” Id.
    The family limited partnership in Estate of Bongard, like
    Black LP, did not conduct an active trade or business.   In Estate
    of Bongard, the legitimate and significant nontax purpose for the
    transfer of operating company stock to the partnership was “to
    - 52 -
    facilitate a corporate liquidity event” for the operating
    company.   Therefore, we conclude that, by treating Estate of
    Bongard and Estate of Thompson as consistent with respect to
    their application of the parenthetical exception, respondent
    concedes, and, as demonstrated by our opinion in Estate of
    Schutt, this Court agrees, that a family limited partnership that
    does not conduct an active trade or business may nonetheless be
    formed for a legitimate and significant nontax reason.14      In
    Estate of Thompson v. Commissioner, 
    382 F.3d at 383
    , the Court of
    Appeals stated:15
    14
    That respondent does not require the legitimate and
    significant nontax purpose to be the partnership’s operation of a
    business is also made clear both by his failure to make that
    argument on brief and by the following colloquy between
    respondent’s counsel and the Court at the end of trial:
    THE COURT:    But this wasn’t a business that was
    put into the --
    MR. THORPE: Yes. Right. Well, let me rephrase
    our position. I don’t think our position is so
    restricted to say that under the * * * [Bongard] test,
    it has to be strictly a business purpose. I mean,
    certainly I think * * * [Bongard] would indicate that
    it could be some significant, legitimate, nontax
    purpose. That’s pretty broad.
    THE COURT: Okay. So would avoiding a family
    dispute suffice for the first prong of the * * *
    [Bongard] test?
    MR. THORPE:    Yes.   If it’s significant and
    legitimate * * *
    15
    Judge Greenberg, concurring in Estate of Thompson v.
    Commissioner, 
    382 F.3d 367
    , 383 (3d Cir. 2004), joins the
    majority opinion “without reservation” but appears to read that
    opinion as suggesting that, for a discounted, proportionate
    interest in a family limited partnership to constitute full and
    adequate consideration, the partnership hold a “legitimate”
    (continued...)
    - 53 -
    After a thorough review of the record, we agree
    with the Tax Court that decedent’s inter vivos
    transfers do not qualify for the § 2036(a) exception
    because neither the Thompson Partnership nor Turner
    Partnership conducted any legitimate business
    operations, nor provided decedent with any potential
    non-tax benefit from the transfers. [Estate of
    Thompson v. Commissioner, 
    382 F.3d at 383
    ; emphasis
    supplied.]
    b.   Conclusion
    Mr. Black’s transfer of Erie stock to Black LP was made for
    adequate and full consideration.
    C.   Application of Section 2036(1) and (2)
    Because we have concluded that Mr. Black’s transfer of Erie
    stock to Black LP constituted a bona fide sale for adequate and
    full consideration for purposes of section 2036(a), the fair
    market value of that stock is not includable in Mr. Black’s gross
    15
    (...continued)
    business. Judge Greenberg’s point is that the Court’s refusal to
    apply the sec. 2036(a) parenthetical exception in the case
    “should not discourage transfers in ordinary commercial
    transactions, even within families”. In that context, Judge
    Greenberg states:
    This * * * point is important because courts
    should not apply section 2036(a) in a way that will
    impede the socially important goal of encouraging
    accumulation of capital for commercial enterprises.
    Therefore in an ordinary commercial context there
    should not be a recapture under section 2036(a) and
    thus the value of the estate’s interest in the entity,
    though less than the value of a pro rata portion of the
    entity’s assets, will be determinative for estate tax
    purposes. * * * [Id. at 386; emphasis supplied.]
    The third judge on the panel joined Judge Greenberg’s
    concurring opinion. In the absence of respondent’s reliance on
    (or even discussion of) the concurring opinion in Estate of
    Thompson, we do not opine as to its impact, if any, on these
    cases.
    - 54 -
    estate under either section 2036(a)(1) or (2), and we need not
    further consider the application of either of those provisions.
    D.   Conclusion
    The fair market value of Mr. Black’s partnership interest in
    Black LP, rather than the fair market value of the Erie stock
    that he contributed thereto, is includable in his gross estate.
    III.    The Marital Deduction Issue
    Because we have decided that the fair market value of Mr.
    Black’s partnership interest in Black LP, rather than the fair
    market value of the Erie stock that he contributed thereto, is
    includable in his gross estate, the marital deduction to which
    Mr. Black’s estate is entitled under section 2056 must be
    computed according to the value of the partnership interest that
    actually passed to Mrs. Black, not according to the underlying
    Erie stock apportionable to that interest.      Therefore, the
    marital deduction issue is moot.
    IV.    The Date of Funding Issue
    A.    The Arguments of the Parties
    As found supra, petitioner, in his capacity as trustee of
    the revocable trust, decided to fund the marital trust with a
    portion of the 77.0876-percent class B limited partnership
    interest in Black LP that Mr. Black had assigned to the revocable
    trust.      Pursuant to the terms of the revocable trust, assets
    distributed in kind to fund the marital trust were required to be
    distributed “at their market value on the date or dates of
    distribution.”      Mrs. Black died before the amount of the
    - 55 -
    pecuniary bequest could be determined and the marital trust
    funded, and, because the trust was to terminate upon Mrs. Black’s
    death, it was never actually funded.        To deem the trust to have
    been funded was necessary, however, to determine the amount
    includable in Mrs. Black’s gross estate under section
    2044(b)(1)(A).     That section requires that her gross estate
    include the value of all property with respect to which Mr.
    Black’s estate was entitled to a marital deduction under section
    2056(b)(7).16     Petitioner selected the date of her death as the
    deemed date of funding.
    The parties have stipulated that the fair market value of a
    1-percent class B limited partnership interest in Black LP was
    $2,146,603, on December 12, 2001 (the date of Mr. Black’s death),
    and $2,469,728 on May 25, 2002 (the date of Mrs. Black’s death).
    If the marital trust is deemed to have been funded on the date of
    Mr. Black’s death, the number of class B limited partnership
    units needed to fund the pecuniary bequest to that trust will be
    greater than the number of such units needed to fund that bequest
    on the date of Mrs. Black’s death.        In that event, the fair
    market value of the marital trust on the date of Mrs. Black’s
    death and, therefore, the amount includable in her gross estate
    under section 2044(b)(1)(A) will be greater than if the marital
    trust is deemed to have been funded with the lesser number of
    class B limited partnership units determined by the value of
    those units on the date of her death.
    16
    See supra note 7.
    - 56 -
    Citing the requirement in the revocable trust that the
    marital trust terminate at Mrs. Black’s death, petitioner argues
    that “logic dictates that the Marital Trust must be deemed to be
    funded as of that date.”     In support of his position, petitioner
    cites section 20.2044-1(e), Example (8), Estate Tax Regs.
    Respondent counters that, under the terms of the revocable trust,
    Mrs. Black’s “legacy passed to her upon Sam Black’s death”, and,
    “[a]ccordingly, the amount comprising Irene Black’s legacy is
    determined as of the date of Sam Black’s death, reflecting any
    adjustments to the value of Sam Black’s gross estate as finally
    determined.”   Respondent argues that section 20.2044-1(e),
    Example (8), Estate Tax Regs., “sheds no light on the issue of
    when a QTIP trust should be deemed funded when the surviving
    spouse dies before it is actually funded.”
    B.   Analysis
    In general, the amount includable in the decedent’s gross
    estate under section 2044 “is the value of the entire interest in
    which the decedent had a qualifying income interest for life,
    determined as of the date of the decedent’s death (or the
    alternate valuation date, if applicable).”     Sec. 20.2044-1(d)(1),
    Estate Tax Regs.     That general rule is illustrated by section
    20.2044-1(e), Example (1), Estate Tax Regs., as follows:
    Inclusion of trust subject to election. Under D’s
    will, assets valued at $800,000 in D’s gross estate
    (net of debts, expenses and other charges, including
    death taxes, payable from the property) passed in trust
    with income payable to S for life. Upon S’s death, the
    trust principal is to be distributed to D’s children.
    D’s executor elected under section 2056(b)(7) to treat
    the entire trust property as qualified terminable
    - 57 -
    interest property and claimed a marital deduction of
    $800,000. S made no disposition of the income interest
    during S’s lifetime under section 2519. On the date of
    S’s death, the fair market value of the trust property
    was $740,000. S’s executor did not elect the alternate
    valuation date. The amount included in S’s gross
    estate pursuant to section 2044 is $740,000.
    Section 20.2044-1(e), Example (8), Estate Tax Regs., on
    which petitioner relies, provides as follows:
    Inclusion of trust property when surviving spouse dies
    before first decedent’s estate tax return is filed. D
    dies on July 1, 1997. Under the terms of D’s will, a
    trust is established for the benefit of D’s spouse, S.
    The will provides that S is entitled to receive the
    income from that portion of the trust that the executor
    elects to treat as qualified terminable interest
    property. The remaining portion of the trust passes as
    of D’s date of death to a trust for the benefit of C,
    D’s child. The trust terms otherwise provide S with a
    qualifying income interest for life under section
    2056(b)(7)(B)(ii). S dies on February 10, 1998. On
    April 1, 1998, D’s executor files D’s estate tax return
    on which an election is made to treat a portion of the
    trust as qualified terminable interest property under
    section 2056(b)(7). S’s estate tax return is filed on
    November 10, 1998. The value on the date of S’s death
    of the portion of the trust for which D’s executor made
    a QTIP election is includible in S’s gross estate under
    section 2044.
    Thus, Example (8) confirms that the general rule applies to
    the valuation of the property in a QTIP marital deduction trust
    (i.e., that it be valued as of the date of the grantee spouse’s
    death) when (as in these cases) the grantee spouse dies before
    the estate tax return for the grantor spouse is filed.   The
    foregoing regulation and the above-quoted examples illustrating
    its application necessarily presuppose that the marital trust is
    funded before the beneficiary spouse dies.   As respondent notes,
    however, neither the regulation nor Example (8) addresses the
    - 58 -
    actual date upon which the marital trust is considered to have
    been established (funded).
    Although respondent successfully rebuts petitioner’s
    reliance on the above-cited regulations, he does not mount a
    successful defense of his own position.    To begin with,
    respondent misstates the terms of the revocable trust.      They do
    not support respondent’s argument that Mrs. Black’s legacy passed
    to her upon Mr. Black’s death.    The pertinent language of the
    revocable trust states:   “If * * * [Mrs. Black] survives * * *
    [Mr. Black], the Trustee shall hold IN TRUST, as the Marital
    Trust * * * a legacy equal to * * * [the pecuniary bequest].”
    The amount of the pecuniary bequest was not ascertainable until
    Mr. Black’s Federal estate tax liability was known, and, because
    of the need to appraise the date-of-death value of the principal
    asset in Mr. Black’s estate (his 77.0876-percent class B limited
    partnership interest in Black LP) to compute that liability, that
    amount was not known on the date of Mr. Black’s death.
    Mr. Black’s Federal estate tax return was filed on September
    12, 2002, more than 3 months after Mrs. Black’s death on May 25,
    2002.   Moreover, the outside appraisal of the value (on the date
    of his death) of Mr. Black’s 77.0876-percent class B limited
    partnership interest in Black LP was dated September 11, 2002, 1
    day before his Federal estate tax return was filed.    Although the
    result of that appraisal must have been known before September
    11, 2002, Mr. Cullen testified credibly that it was not known
    until after Mrs. Black’s death.
    - 59 -
    Had Mrs. Black lived long enough to allow for the funding of
    her marital trust, then, as required by the terms of the
    revocable trust, that funding would have been accomplished with a
    class B limited partnership interest in Black LP the size of
    which would have been determined with reference to its fair
    market value on the date of distribution from the revocable trust
    to the marital trust.   There is no reason to apply a different
    rule to a deemed distribution of that interest to the marital
    trust.    The issue is what date, after Mr. Black’s death, to
    choose.   Because the marital trust was to terminate upon Mrs.
    Black’s death, that is the last possible date on which it could
    have been funded.   We agree with petitioner that to pick that
    date, which is the date closest to what would have been the
    actual date of the distribution to the marital trust had Mrs.
    Black survived, as the deemed date of funding is logical and
    reasonable.
    Lastly, under the terms of the revocable trust, petitioner
    had the option of funding the marital trust with cash.    Had Mrs.
    Black survived long enough to enable petitioner to fund the
    marital trust with cash before her death, and had he been able
    (and inclined) to sell a portion of the revocable trust’s
    77.0876-percent class B limited partnership interest in Black LP
    to raise that cash, he would have sold that interest for its
    current fair market value.    He would not have sold a greater
    interest determined with reference to the fair market value of
    Black LP class B limited partnership units as of December 12,
    - 60 -
    2001, the date of Mr. Black’s death.     We see no reason to reach
    an inconsistent result where the marital trust is funded (or
    deemed to have been funded) in kind with a class B limited
    partnership interest in Black LP.
    C.   Conclusion
    For purposes of determining the value of the marital trust
    property includable in Mrs. Black’s gross estate under section
    2044, the marital trust that Mr. Black established for Mrs.
    Black’s benefit should be deemed funded and the fair market value
    of the property that was to constitute the trust corpus should be
    determined as of May 25, 2002, the date of her death, not as of
    December 12, 2001, the date of his death.
    V.   The Interest Deductibility Issue
    A.   General Principles
    Section 2053(a)(2) provides that “the value of the taxable
    estate shall be determined by deducting from the value of the
    gross estate such amounts * * * for administration expenses * * *
    as are allowable by the laws of the jurisdiction * * * under
    which the estate is being administered.”17    Section 20.2053-3(a),
    Estate Tax Regs., provides, in pertinent part:    “The amounts
    17
    Neither party suggests that Pennsylvania law bars the
    executor of an estate from claiming an interest expense as an
    administration expense with respect to the estate. Therefore,
    for purposes of these cases, we find that the interest expense
    for which petitioner claims a deduction was properly incurred
    under Pennsylvania law, despite the absence of evidence that it
    was specifically approved by a Pennsylvania court. See sec.
    20.2053-1(b)(2), Estate Tax Regs. (A “deduction * * * of a
    reasonable expense of administration will not be denied because
    no court decree has been entered if the amount would be allowable
    under local law.”).
    - 61 -
    deductible from * * * [the] gross estate as ‘administration
    expenses’ * * * are limited to such expenses as are actually and
    necessarily, incurred in the administration of the decedent’s
    estate”.   See also Estate of Todd v. Commissioner, 
    57 T.C. 288
    ,
    296 (1971).   Section 20.2053-1(b)(3), Estate Tax Regs., provides
    that an item may be deducted on the estate tax return “though its
    exact amount is not then known, provided it is ascertainable with
    reasonable certainty, and will be paid.   No deduction may be
    taken upon the basis of a vague or uncertain estimate.”
    In Estate of Graegin v. Commissioner, 
    T.C. Memo. 1988-477
    ,
    we held that the obligation to make a balloon payment of interest
    upon the maturity of a 15-year promissory note for repayment of
    an amount borrowed from the decedent’s closely held corporation
    to pay his estate’s Federal estate tax liability entitled the
    estate to an immediate deduction for the interest as an
    administration expense under section 2053(a)(2).   Both principal
    and interest were due in a single payment on the 15th anniversary
    due date, and prepayment of both was prohibited.   In sustaining
    the deduction, we noted that the amount of interest was capable
    of precise calculation.   Although we were “disturbed” by the
    single payment of principal and interest, we found it “not
    unreasonable” in the light of the anticipated availability of the
    assets of decedent’s spouse’s trust to repay partially both
    principal and interest upon maturity of the note, the term of
    which had been set according to decedent’s spouse’s life
    expectancy.
    - 62 -
    We have generally held that when, to pay the debts of an
    estate, an executor borrows money instead of selling illiquid
    assets, interest on the loan is deductible.   See, e.g., Estate of
    Bahr v. Commissioner, 
    68 T.C. 74
     (1977); Estate of Todd v.
    Commissioner, supra; Estate of Graegin v. Commissioner, supra.
    Moreover, we have so held when the loan was made by a company
    stock of which was included in the value of the gross estate and
    which (1) was owned by the decedent’s family and (2) “was neither
    able nor required to redeem enough * * * [company] shares to
    provide funds to pay * * * [all debts of the estate] when due”.
    McKee v. Commissioner, 
    T.C. Memo. 1996-362
    .   In that case, the
    executors (who were also directors of the company lender)
    anticipated that the company stock would increase in value, and
    we concluded that “borrowing funds, rather than selling stock,
    allowed decedent’s estate to more easily meet its burdens by
    taking advantage of the increasing value of the stock.”
    B.   Arguments of the Parties
    Petitioner argues that the loan from Black LP was necessary
    “to solve Mrs. Black’s Estate’s liquidity dilemma”; i.e., to
    provide the funds needed to pay estate taxes and administration
    expenses.   He stresses that the amount of the loan was reasonable
    and that, because prepayment of principal and interest was
    prohibited, the amount of interest on the loan was fixed and
    capable of calculation when the promissory note was executed, not
    “vague or uncertain” within the meaning of section 20.2053-
    1(b)(3), Estate Tax Regs.   Petitioner concludes that, under the
    - 63 -
    foregoing authorities, the interest on the note to maturity was
    deductible in full on the Form 706 filed by Mrs. Black’s estate.
    In reaching that conclusion, petitioner argues that, under such
    cases as Estate of Todd v. Commissioner, supra, petitioner, as
    executor of Mrs. Black’s estate, “exercised reasonable business
    judgment” when he borrowed the necessary funds rather than cause
    Black LP either to distribute those funds to the estate or to
    redeem a portion of the estate’s interest (through the marital
    trust) in Black LP.   Petitioner further notes that, pursuant to
    the partnership agreement, Black LP was not required to make a
    distribution to or redeem an interest from Mrs. Black’s estate to
    fund the estate’s tax liabilities.     Petitioner also argues that,
    although petitioner acted on behalf of both the borrowers and the
    lender, he “did not stand alone or unrestricted on either side of
    the transaction” because he had fiduciary responsibilities to
    both, particularly to the other partners in Black LP.    Lastly,
    petitioner argues that, under both the objective test and the
    “economic reality” test set forth in Geftman v. Commissioner, 
    154 F.3d 61
    , 70, 75 (3d Cir. 1998), revg. in part and vacating in
    part 
    T.C. Memo. 1996-447
    , the loan to Mrs. Black’s estate was
    bona fide because (1) there was a note, security, interest
    charges, a repayment schedule, actual repayment of the loan, and
    other factors that indicate an unconditional obligation to repay,
    and (2) the economic realities surrounding the relationship
    between the borrowers and the lender demonstrate that there was a
    reasonable expectation or enforceable obligation of repayment.
    - 64 -
    Respondent counters that the loan (and, hence, the payment
    of interest) was neither necessary nor bona fide.    In arguing
    that the loan was unnecessary, respondent states that “there was
    no liquidity problem that would justify the loan.”    In support of
    that position, respondent stresses that petitioner, as executor
    of both Mr. and Mrs. Black’s estates and as managing and majority
    partner in Black LP, was in a position to distribute Erie stock
    held by Black LP to Mrs. Black’s estate by way of either a
    partial, pro rata distribution to the partners of Black LP or a
    partial redemption of the estate’s interest, neither of which
    would have adversely affected the interests of the charitable
    trust partners.   In support of his argument that the transfer of
    funds was not a bona fide loan, respondent states that the
    transaction had no economic effect other than to generate an
    estate tax deduction for the interest on the loan.    According to
    respondent, that is because the only way the borrowers can repay
    the alleged loan is to have Black LP make an actual or deemed
    distribution of Erie stock (or proceeds from the sale thereof) to
    them (whether or not in partial redemption of their partnership
    interest) followed by an actual or deemed repayment of the stock
    (or proceeds) to Black LP in discharge of the note, which would
    result in a circular flow of either the Erie stock or the
    proceeds from its sale by Black LP.    Respondent concludes:
    “Other than the favorable tax treatment resulting from the
    transaction (a sec. 2053 deduction for interest expense that the
    parties are essentially paying to themselves), it is difficult to
    - 65 -
    see what benefit was derived from this circular transfer of
    funds.”       Lastly, respondent argues that, contrary to petitioner’s
    argument, the transaction did not satisfy the prerequisites for
    bona fide loan status as set forth in Geftman v. Commissioner,
    supra, and in Estate of Rosen v. Commissioner, T.C. Memo. 2006-
    115.    In particular, respondent argues that by providing for
    payment “no earlier than November 30, 2007”, the note lacked a
    fixed maturity date, and that Mr. Cullen’s “vague testimony that
    an installment arrangement will be worked out in the future
    [because of the borrowers’ inability to repay the entire
    principal on November 30, 2007]18 hardly confirms an intent that
    the loan be repaid.”
    C.     Analysis
    We find that the $71 million loan from Black LP to Mrs.
    Black’s estate and the revocable trust, and the borrowers’
    payment of interest thereon, was unnecessary.      Therefore the
    interest is not deductible.      See sec. 20.2053-3(a), Estate Tax
    Regs.
    The only significant asset in Mrs. Black’s estate was the
    Black LP partnership interest to be transferred from the
    revocable trust to the marital trust.      Between 1994 and 2001,
    Black LP’s total income was less than $28 million, and its total
    distributions to partners were less than $26 million.      Even
    assuming equivalent income and distributions to partners between
    February 25, 2003, the date of the loan, and November 30, 2007,
    18
    See supra note 9.
    - 66 -
    the purported due date for repayment of the loan, timely
    repayment by the borrowers of the $71 million loan principal out
    of partnership distributions (derived almost entirely from
    dividends on Black LP’s Erie stock) was, on the date of the loan,
    inconceivable.   Thus, the borrowers knew (or should have known)
    that, on the loan date, payment of the promissory note, according
    to its terms, could not occur without resort to Black LP’s Erie
    stock attributable to the borrowers’ class B limited partnership
    interests in Black LP.19
    Petitioner argues that the borrowers had no right under the
    partnership agreement to require a distribution to them of assets
    (i.e., Erie stock) either as part of a pro rata distribution to
    partners or in partial redemption of their partnership interests.
    But the partnership agreement provided for the modification
    thereof, and a modification permitting either a pro rata
    distribution of Erie stock to the partners or a partial
    redemption of the borrowers’ partnership interests would not have
    violated petitioner’s fiduciary duties, as managing partner, to
    any of the partners.
    Assuming additional sales or pro rata distributions of Erie
    stock would have been considered undesirable, the only feasible
    19
    Our conclusion that repayment of the note necessarily
    would require a sale of the Erie stock attributable to the
    borrowers’ partnership interests in Black LP is premised on the
    assumption that, on the date they executed the promissory note,
    the borrowers intended to repay the loan in full on Nov. 30,
    2007. Petitioner does not argue to the contrary. He argues only
    that the eventual decision to refinance the loan does not alter
    its status as a bona fide loan.
    - 67 -
    means of repaying the loan by the purported due date of November
    30, 2007, would have been for Black LP to make an actual or
    deemed distribution of Erie stock to the borrowers in partial
    redemption of their interests in the partnership and for the
    borrowers to make an actual or deemed return of the stock to
    Black LP in discharge of the promissory note.   That transaction,
    had it, in fact, occurred, would have demonstrated that the loan
    was unnecessary because the parties thereto would have been in
    exactly the same position as they would have been had Black LP
    used Erie stock to redeem part of the partnership interests of
    the estate and revocable trust, and, in 2003, to pay the debts of
    the estate, had they sold that Erie stock (e.g., by means of a
    secondary offering identical, except for the identity of the
    seller, to the one that actually occurred).20   The only
    distinction between the loan scenario and the partial redemption
    scenario is that the former gave rise to an immediate estate tax
    deduction for interest in excess of $20 million, offset by a
    substantially smaller income tax expense (because of the
    passthrough of interest income) to the Black LP partners.   That
    the loan scenario, like the partial redemption scenario, required
    a sale of Erie stock to discharge the debts of Mrs. Black’s
    estate, i.e., that Erie stock was available and actually used for
    20
    Alternatively, the partial redemption scenario could have
    been structured as a sale of Erie stock by Black LP pursuant to
    the secondary offering that actually occurred followed by a
    distribution of $71 million in cash to the estate and the
    revocable trust in redemption of their partnership interests in
    Black LP.
    - 68 -
    that purpose, negates petitioner’s contention that the loan was
    needed to solve a “liquidity dilemma”.    The loan structure, in
    effect, constituted an indirect use of Erie stock to pay the
    debts of Mrs. Black’s estate and accomplished nothing more than a
    direct use of that stock for the same purpose would have
    accomplished, except for the substantial estate tax savings.
    Those circumstances distinguish these cases from the cases on
    which petitioner relies in which loans from a related, family-
    owned corporation to the estate were found to be necessary to
    avoid a forced sale of illiquid assets, see Estate of Todd v.
    Commissioner, 
    57 T.C. 288
     (1971); Estate of Graegin v.
    Commissioner, 
    T.C. Memo. 1988-477
    , or to enable the estate to
    retain the lender’s stock for future appreciation, McKee v.
    Commissioner, 
    T.C. Memo. 1996-362
    .     In none of those cases was
    there a sale of either the stock or assets of the lender to pay
    debts of the estate borrower, as occurred in these cases.
    Moreover, as respondent points out, the principal beneficiary of
    the estate, petitioner, was also the majority partner in Black
    LP.   Thus, he was on both sides of the transaction, in effect
    paying interest to himself.   As a result, those payments effected
    no change in his net worth, except for the net tax savings.
    Having found that the interest on the purported loan from
    Black LP to Mrs. Black’s estate and the revocable trust was not
    “necessarily incurred in the administration of the decedent’s
    estate”, as required by section 20.2053-3(a), Estate Tax Regs.,
    - 69 -
    we do not address the issue of whether the transaction resulted
    in a bona fide loan.
    D.    Conclusion
    The $20,296,274 interest expense incurred by Mrs. Black’s
    estate did not constitute a deductible administration expense
    under section 2053(a)(2).21
    VI.   The Fee Deductibility Issues
    A.    Background
    Respondent seeks to deny to Mrs. Black’s estate a deduction
    for (1) any portion of the $980,625 the estate paid to Black LP
    as reimbursement for the latter’s reimbursement of Erie for costs
    incurred in connection with the secondary offering of Black LP’s
    Erie stock,22 (2) any portion of the $1,155,000 executor fee paid
    to petitioner in excess of $500,000, and (3) any portion of the
    $1,155,000 in legal fees paid to MacDonald Illig in excess of
    $500,000.    Mrs. Black’s estate deducted each of the foregoing
    payments on Schedule L, Net Losses During Administration and
    21
    Because we deny the entire deduction for interest on the
    ground that the $71 million loan (or, indeed, any loan) from
    Black LP was unnecessary to enable Mrs. Black’s estate to
    discharge its debts, we have not addressed respondent’s
    alternative argument that the loan was larger than what was
    needed to discharge the debts of Mrs. Black’s estate, and that
    interest attributable to the loan proceeds used to fund the $20
    million bequest to Penn State Erie (an obligation of Mr. Black’s
    estate) should be treated as nondeductible.
    22
    Although Mrs. Black’s estate and the revocable trust, as
    coborrowers under the loan agreement, both agreed to reimburse
    Black LP for its expenses related to the secondary offering, and
    although petitioner signed that agreement in his dual capacity as
    executor for the estate and trustee of the trust, respondent does
    not dispute that the estate made the payment at issue; he
    disputes only its deductibility by the estate.
    - 70 -
    Expenses Incurred in Administering Property Not Subject to
    Claims, as expenses incurred in administering nonprobate
    property.    Petitioner argues that Mrs. Black’s estate is entitled
    to deduct each of those expenditures in its entirety.
    B.    General Principles
    Section 2053(b), entitled “Other administrative expenses”,
    generally provides a deduction for expenses incurred in
    administering nonprobate property, to the same extent as they
    would be deductible under section 2053(a); i.e., if incurred in
    administering probate property.23    Thus, such expenses must be
    “actually and necessarily incurred in the administration of the
    decedent’s estate; that is, in the collection of assets, payment
    of debts, and distribution of property to the persons entitled to
    it.”24    Sec. 20.2053-3(a), Estate Tax Regs.
    23
    Because such expenses relate to nonprobate property, they
    are not subject to the requirement, in sec. 2053(a), that they be
    “allowable by the laws of the jurisdiction * * * under which the
    estate is being administered.”
    24
    The evidence indicates that some portion of each of the
    fees in question relates to activities that necessarily involve
    the administration of both probate and nonprobate property.
    Because the principles governing deductibility are identical for
    both types of expenditures, the distinction is without
    consequence herein. Moreover, as in the case of the interest
    expense incurred by Mrs. Black’s estate, to the extent the fees
    in question relate to probate property, respondent does not argue
    that Pennsylvania law bars petitioner from claiming the fees as
    proper administration expenses. See supra note 16.
    - 71 -
    C.   Analysis and Conclusions
    1.   Reimbursement of Costs Incurred in Connection
    With the Secondary Offering: $982,070
    Petitioner argues that the secondary offering of Black LP’s
    Erie stock followed by a loan of a portion of the proceeds was a
    legitimate means of paying the estate tax liability and the
    obligations under the revocable trust of Mrs. Black’s estate, and
    that its reimbursement of Erie’s expenses related to the
    secondary offering was a “reasonable and necessary” and,
    therefore, deductible cost of Mrs. Black’s estate.   Respondent
    argues that the reimbursement was not “necessary” within the
    meaning of section 20.2053-3(a), Estate Tax Regs., because the
    Erie stock belonged to Black LP, not Mrs. Black’s estate, and
    that Black LP sold the stock.
    To the extent the secondary offering of Erie stock generated
    funds needed and used to discharge debts of Mrs. Black’s estate,
    Black LP’s obligation to reimburse Erie for costs associated with
    that offering was related to and occasioned by Mrs. Black’s
    death, and, for that reason, the reimbursement might be
    deductible by her estate under section 2053.   Accord sec.
    20.2053-8(d) Example (1), Estate Tax Regs.; see Burrow Trust v.
    Commissioner, 
    39 T.C. 1080
    , 1089 (1963) (holding that, where a
    revocable inter vivos trust paid its own trustee’s fees, the
    settlor’s estate could nonetheless deduct those fees under
    section 2053 because the trustees’ services “were primarily
    occasioned by the death of the decedent”), affd. 
    333 F.2d 66
    (10th Cir. 1964).   Moreover, the payment at issue is the estate’s
    - 72 -
    reimbursement of Black LP pursuant to the loan agreement, not
    Black LP’s reimbursement of Erie.     Therefore, the payment may
    qualify as an expense related to a sale “necessary in order to
    pay the decedent’s debts, expenses of administration, or taxes”
    within the meaning of section 20.2053-3(d)(2), Estate Tax Regs.,
    despite the fact that the property sold was, technically,
    property owned by Black LP rather than by the estate.     We find
    that the estate’s indirect ownership, through its interest in
    Black LP, of the Erie stock is sufficient to bring the sale of
    that stock within the cited regulation, which concerns the
    deductibility of expenses of selling “property of the estate”.
    The flaw in petitioner’s argument is that only a portion of
    the funds the secondary offering generated was used on behalf of
    Mrs. Black’s estate.     Of the $98 million realized from Black LP’s
    sale of Erie stock, only $71 million was made available to the
    estate, and of that $71 million, $20 million was used to fulfill
    Mr. Black’s bequest, through the revocable trust, to Penn State
    Erie.     That bequest was an obligation of Mr. Black’s estate.
    After subtracting the approximately $3.3 million of fees at issue
    herein, it appears that approximately $48 million ($31,736,527
    for Federal estate taxes,25 $15,700,000 for Pennsylvania
    25
    Petitioner argues, in connection with the interest
    deductibility issue, that the entire $71 million loan was needed
    to pay the tax liabilities and administrative expenses estimated
    to be payable by Mrs. Black’s estate as of the February 2003 loan
    date. Petitioner includes in that computation the $54 million
    Federal estate tax payment that accompanied the February 2003
    Form 4768, Application For Extension of Time to File a Return
    and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes.
    (continued...)
    - 73 -
    inheritance and estate taxes, and $581,349 for Federal and
    Pennsylvania fiduciary income taxes resulting from capital gain
    on the sale of Black LP’s Erie stock in connection with the
    secondary offering) or approximately 49 percent of the $98
    million the secondary offering raised was actually used to
    discharge debts of Mrs. Black’s estate.    Therefore, we find that
    Mrs. Black’s estate is entitled to deduct $481,000 of its
    $982,070 reimbursement of costs related to the secondary
    offering.
    2.   Executor’s Fee Paid to Petitioner: $1,155,000
    Petitioner claims that the executor’s fee constituted
    payment for his services related to raising funds to pay the
    estate tax, responding to audit requests, marshaling assets of
    Mrs. Black’s estate, and gathering materials and information
    necessary to prepare the estate tax return for Mrs. Black’s
    estate, including materials and information necessary to enable
    the appraiser to determine the value of the assets in Mrs.
    Black’s estate.    Much of that effort consisted of gathering
    information and materials for the appraisal of the class B
    25
    (...continued)
    There is no explanation in the record for the more than $22
    million overpayment (which was refunded to the estate) of Federal
    estate taxes, but Mr. Cullen’s July 29, 2002, letter to Erie
    soliciting Erie’s assistance in raising cash for the estate makes
    clear that, among the items for which a cash infusion was said to
    be necessary, was “$50 million to fulfill Mr. and Mrs. Black’s
    charitable bequests”, the only such bequest being Mr. Black’s $20
    million bequest to Penn State Erie via the revocable trust.
    Therefore, we reject petitioner’s attempt to allocate $54 million
    of the loan proceeds to Federal estate taxes and nothing to the
    $20 million bequest to Penn State Erie.
    - 74 -
    limited partnership interest that was to constitute the corpus to
    the marital trust, and effort associated with the secondary
    offering.   Petitioner argues that all his efforts related to
    nonprobate property included in Mrs. Black’s gross estate and
    that, therefore, his fee was deductible by the estate under
    section 2053(b).   Respondent argues that $650,000 of petitioner’s
    fee related to services performed for Mr. Black’s estate, the
    revocable trust, and Black LP “for which no deduction is
    permitted to Mrs. Black’s estate.”
    We find that petitioner’s fee, insofar as it related to his
    efforts in connection with the secondary offering of Erie stock,
    is deductible to the same extent as is the estate’s reimbursement
    of Erie’s costs related to that sale; i.e., to the extent that
    the funds raised thereby were used to discharge debts of Mrs.
    Black’s estate.    Thus, approximately 49 percent of that portion
    of the fee is deductible.
    We find that petitioner’s gathering of information for
    appraisers represented effort on behalf of both Mr. and Mrs.
    Black’s estates.   A lengthy appraisal of the date-of-death value
    of the Black LP interest included in the gross estate of each
    decedent was attached to the Federal estate tax return filed on
    behalf of each estate.   The two appraisals were conducted by the
    same appraisal company, appraised the same type of interest (an
    interest in Black LP), used the identical appraisal methodology,
    were approximately the same length, and, to a great extent,
    contained identical language.    Therefore, to assume that whatever
    - 75 -
    information petitioner supplied to the appraiser pertained more
    or less equally to each appraisal is reasonable.   For that
    reason, we find that the portion of the executor’s fee
    attributable to petitioner’s services related to the appraisals
    should be divided equally between the two estates so that Mrs.
    Black’s estate may deduct only one-half of that amount.
    We also find that whatever portion of petitioner’s fee that
    may be said to have compensated him for his services related to
    the marital trust (services that, allegedly, consumed 90 percent
    of his time) must be divided equally between the estates.
    Petitioner’s argument for full deductibility of the fee is that
    “the marital trust has a direct nexus to Mrs. Black’s Estate
    because the estate tax liability for the inclusion of the Marital
    Trust’s assets in the gross estate is borne by Mrs. Black’s
    Estate.   See I.R.C. § 2044.”   But the fee has an equally direct
    nexus to Mr. Black’s estate because his estate may deduct under
    section 2056 the value on the date of his death of the marital
    trust’s assets.   That deduction exactly mirrors the inclusion, by
    Mrs. Black’s estate, of the value of those assets on the date of
    her death and is of equal significance.
    The same is true of whatever portion of the executor’s fee
    may be said to have compensated petitioner for his efforts in
    responding to respondent’s audit requests.   Both estates were
    under audit so that a 50-50 split between the estates also
    appears to be appropriate in connection with that effort.
    - 76 -
    Lastly, we agree with respondent that no more than a de
    minimis portion (e.g., 1 percent) of the executor fee should be
    allocated to petitioner’s marshaling of assets on behalf of Mrs.
    Black’s estate.    As respondent states, the estate consisted of
    assets worth only $39,709 in addition to the Erie stock in the
    marital trust, which was valued by the estate’s own appraiser at
    over $100 million.
    According to the foregoing we find that one-half of the
    $1,155,000 executor’s fee paid to petitioner was attributable to
    his efforts on behalf of Mrs. Black’s estate.     Therefore, that
    estate is entitled to a deduction of $577,500 for the executor’s
    fee.
    3.   Legal Fees Paid to MacDonald Illig: $1,155,000
    Mr. Cullen testified that the legal fees related to
    “[e]verything in connection with the death of Mrs. Black,
    including the administration of her estate, the [marital] trust,
    preparation of [estate and fiduciary] tax returns, participation
    in the secondary [offering], everything.”    The “everything” also
    included services (assisting petitioner) in connection with the
    estate tax audit.    Mr. Cullen further testified that 80 percent
    of his firm’s time was spent on matters relating to the marital
    trust, which included services related to the secondary offering,
    and 20 percent on matters relating to Mrs. Black’s estate,
    including estate and fiduciary return preparation and payment of
    the taxes owed.
    - 77 -
    Respondent argues that Mrs. Black’s estate “should be
    allowed to deduct fees only in the amount of $500,000, and that
    $650,000 should be disallowed as being related to services
    rendered to entities other than the marital trust.”    Thus,
    respondent does not challenge the overall reasonableness of the
    fee charged for legal services on behalf of the two estates and
    the marital trust.   He challenges only petitioner’s treatment of
    the entire fee as a charge to Mrs. Black’s estate.
    For the reasons stated supra, in connection with our
    consideration of the deductibility of petitioner’s fee, we find
    that Mrs. Black’s estate may deduct 49 percent of whatever
    portion of the legal fees is attributable to services related to
    the secondary offering and one-half of the portion attributable
    to services related to the marital trust and the Federal estate
    tax audit.   Similarly, because each estate filed a Federal gift
    tax and a Federal estate tax return, we find that a 50-50 split
    of the portion of the legal fees attributable to MacDonald
    Illig’s services in preparing those returns is appropriate.
    Only Mrs. Black’s estate filed fiduciary income tax returns.
    Therefore, her estate may deduct the portion of the legal fees
    attributable to the preparation and filing of those returns.      The
    record does not contain copies of those returns.     If, as Mr.
    Cullen testified, those returns reflected only the capital gain
    passed through to Mrs. Black’s estate on Black LP’s sale of Erie
    stock in connection with the secondary offering, the returns
    could not have been particularly complex.   Thus, the fee
    - 78 -
    attributable to the preparation of those returns should be
    relatively small.26
    As in the case of petitioner’s fee, we find that one-half of
    the $1,155,000 in legal fees was attributable to services
    rendered to Mrs. Black’s estate. Therefore, that estate is
    entitled to a deduction of $577,500 for legal fees.27
    To reflect the foregoing,
    Decisions will be entered
    under Rule 155.
    26
    The record does not contain a copy of the MacDonald Illig
    bill for services rendered to Mrs. Black’s estate. Therefore, we
    do not know how that firm apportioned its fee to the various
    services rendered.
    27
    No petition filed in these consolidated cases alleges that
    all or any portion of the executor’s fee and/or legal fees
    disallowed as deductions to Mrs. Black’s estate should be allowed
    as deductions to Mr. Black’s estate. Moreover, petitioner has
    neither amended the pleadings under either Rule 41(a) or (b) nor
    filed supplemental pleadings under Rule 41(c) to so allege.
    Therefore, we do not consider the deductibility by Mr. Black’s
    estate of all or any portion of the disallowed amounts.