concurring: I agree with the conclusion reached by the majority. The case is controlled by United States v. Byrum, 408 U.S. 125 (1972), and this is not the Court to reconsider or rewrite that opinion.
Throughout this litigation, respondent has consistently conceded that the trust created by decedent in 1948 was a valid one. After the transfer to the trust, all powers decedent held with respect to the Gilman Paper common stock were fiduciary powers. If anything is clear from the Byrum opinion, it is that the exercise of fiduciary powers to vote the stock of a corporation does not constitute the “enjoyment” of that stock within the meaning of section 2036(a)(1), and it does not matter whether those powers are exercised by a sole trustee, one of three trustees (as here), or even, as in Byram, one who has transferred his stock to a trust but retained the r igh t in his individual capacity to vote it. The personal satisfactions or the psychic benefits derived from voting the stock do not, constitute the kind of retained economic benefits which constitute “enjoyment” within the meaning of section 2036(a)(1). ' ' .
The dissent scorns'the veracity . .of one of the witnesses. However, after decedent submitted his common stock to the restraints of a fiduciary, he .became only, one of three trustees in deciding how the stock would be voted. His powers thereafter were subject not only , to fiduciary obligations to the other shareholders, whose interests were sharply adverse, but. the fiduciary restrictions flowing from the express trust. The corporate bylaws required annual elections of the corporation’s directors and the president. The directors were not figureheads. They could have elected someone else as president. Indeed, on three occasions (in 1951,1953, and 1954), the corporate minutes reflect that the directors outvoted decedent 2 to 1 on the payment of dividends. The testimony of Gilman’s attorney that there was no express or implied agreement, in 1948 that decedent would continue to serve, as president, the only specific testimony on the point, , is thus wholly consistent with the undisputed documentary evidence; But it would make no difference, even if there had been an agreement that decedent would be the most influential one of the three trustees, because whatever powers decedent retained were fiduciary ones, and Byrum makes it clear that the exercise of fiduciáry powers does not constitute enjpy-mentunder section 2036(a)(1).
Irwin and STERRETT.jjl, agree with.this concurring opinion;