dissenting: What bothers me most about the majority approach is that is appears to escalate the rationale of United States v. Byrum, 408 U.S. 125 (1972), which was developed in light of the particular facts of that case, into a mandated.rigid doctrine of wide application. In other words, the majority opinion may be interpreted as concretizing Byrum, thus opening up the possibility that future decisions will permit trust arrangements to avoid estate tax consequences contrary to the clear intent of Congress as expressed in section 2036. If this is not the intended consequence of our decision herein — and I am confident that it is not — then the approach of the majority contains an even more difficult and dangerous element, namely, the substitution of the judgment of those who did not hear the evidence for that of the trier of the facts. Judge Raum conducted the trial and saw and heard the witnesses. He did not merely conclude that the. petitioner had failed to carry its burden of proof. On the contrary, he reached the affirmative ultimate factual conclusion that there was an understanding between the settlor and the trustees which resulted in the settlor retaining “enjoyment of * * * the property” within the meaning of section 2036(a)(1). Under these circumstances, I do not believe that Judge Raum’s evaluation of the testimony and the record as a whole should be disregarded, particularly where we are faced with such a unique situation, namely, that the trusteed shares were so structured that, given the pliability of the other trustees and the holders of the other classes of stock, those shares had no meaningful attributes apart from the right to vote and thus control the destiny of the corporation. In my opinion, this case is sui generis and situations where the trusteed shares of a closely held corporation have a relatively1 significant actual or potential value apart from the right to vote are to be clearly distinguished, thereby avoiding, in very large degree, the implications of applying the Government’s position in Byrum which so obviously troubled the majority of the Supreme Court in that case. See 408 U.S. at 146-150, and particularly n. 34.2
Wilbur, J., agrees with this dissent.I note that, in relative terms, the bulk of the participation of the common stock, upon liquidation of the corporation, was on a share-for-share basis with the preferred stock. The ratio was 10/9,911 at the time the trust was established and 6/5,268 at the time of the settlor s death
Compare Estate of Hilton W. Goodwyn, T.C. Memo. 1973-153; Estate of Arthur A. Chalmers, T.C. Memo. 1972-158.