OPINION
Under section 2036(a),2 property transferred by a decedent is included in his gross estate if, under the transfer, the decedent retained for his life or a period which did not in fact end before his death (1) the “enjoyment” of the property or (2) the right, either alone or in conjunction with any person, to designate the persons who shall enjoy the property or the income therefrom. Respondent relies upon these provisions to include the transferred Gilman Paper stock in decedent’s gross estate.3
Section 2036(a) reflects a “legislative policy of subjecting to tax all property which has been the subject of an incomplete inter vivos transfer.” United States v. O’Malley, 383 U.S. 627, 631 (1966). The policy is to include in a decedent’s gross estate transfers which are in substance testamentary, i.e., “transfers which leave the transferor a significant interest in or control over the property transferred during his lifetime.” United States v. Estate of Grace, 395 U.S. 316, 320 (1969).
As stated in Commissioner v. Estate of Church, 335 U.S. 632, 645(1949):
an estate tax cannot be avoided by any tmst transfer except by a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property.
At the center of the present controversy is United States v. Byrum, 408 U.S. 125 (1972), the most recent Supreme Court pronouncement on the breadth and reach of section 2036(a). In that case, Byrum transferred stock in three unlisted corporations, in which he was the majority stockholder, to an irrevocable trust for the benefit of his children. He retained the right to vote the transferred stock, to veto any transfer by the trustee (a bank) of any stock, and to remove the trustee and appoint another corporate trustee as successor. The retained right to vote the transferred stock, together with the vote of the stock decedent owned at the time of his death, gave him a majority vote in each of the corporations. The Supreme Court held that the rights the decedent reserved in respect of the transferred stock did not constitute retained enjoyment thereof or the right to designate the person or persons who would enjoy the income therefrom, stating, inter alia, that (408 U.S. at 149):
The statutory language [of sec. 2036(a)] plainly contemplates retention of an attribute of the property transferred — such as a right to income, use of the property itself, or a power of appointment with respect either to income or principal.
Even if Byrum had transferred a majority of the stock, but had retained voting control,, he would not have retained “substantial present economic benefit,” * * * [Fn. ref. omitted.]
In support of its conclusion, the Court repeatedly emphasized the fiduciary duty of a majority shareholder not to misuse his power by promoting his personal interests at the expense of corporate interests and the fiduciary duty of the directors of a corporation not to play favorites among the shareholders but to promote the interests of the corporation as a whole. These duties so qualified the retained rights of the decedent that, the Court held, they were insufficient to cause inclusion of the stock in decedent’s gross estate under section 2036(a).
Petitioners contend that the Byrum case is dispositive of the instant one. Respondent seeks to distinguish the case on its facts. There are factual differences between the two cases, but we think that most of those differences add strength to petitioners’ case. We hold that decedent’s June 30, 1948, transfer of the Gilman Paper common stock in trust was a completed one and that the value of the stock is not includable in his gross estate.
1. Retention of Enjoyment
The Gilman Paper Co. stock may not be included in decedent’s gross estate under the portion of section 2036(a)(1) relied upon by respondent — that decedent retained the “enjoyment” of the stock — for two closely related reasons: (1) Decedent did not retain enjoyment of the stock “under” the transfer; and (2) the rights that he retained with respect to the stock did not constitute “enjoyment” within the meaning of that term as it is used in section 2036(a)( 1).
Section 2036(a)(1) applies only where the decedent has “retained” enjoyment “under” the “transfer.” This means that the enjoyment of the transferred property must be reserved “in connection with or as an incident to the transfer.” McNichol’s Estate v. Commissioner, 265 F.2d 667, 670 (3d Cir. 1959), affg. 29 T.C. 1179 (1958), cert. denied 361 U.S. 829 (1959). The section ápplies only where a prearrangement, embodied in an express or implied agreement, permits the transferor to enjoy the benefits of the property or its income. Estate of Roy D. Barlow, 55 T.C. 666, 670 (1971); Estate of Harry H. Beckwith, 55 T.C. 242, 247 (1970); Stephens, Maxfield, & Lind, Federal Estate and Gift Taxation, pp. 4-81 — 4-83 (3d ed.,1974); see also Fabian v. United States, 127 F.Supp. 726,728 (D; Conn. 1954). Thus, for example, the section does not apply where a husband transfers his interest in a residence to his wife and they continue to occupy it as the family home unless, by agreement, he reserves the right of occupancy as an incident to the transfer. Union Planters National Bank v. United States, 361 F.2d 662 (6th Cir. 1966); Estate of Binkley v. United States, 358 F.2d 639 (3d Cir. 1966); Estate of Allen D. Gutchess, 46 T.C. 554 (1966); Estate of Robert W. Wier, 17 T.C. 409, 422 (1951); Stephenson v. United States, 238 F.Supp. 660 (WD. Va. 1965); compare Estate of Emil Linderme, Sr., 52 T.C. 305 (1969).
The inquiry must be focused, therefore, on the. agreements made by the parties on June 30,. 1948, when the decedent’s Gilman Paper common stock was transferred to the trust. The question is whether there was an express or implied agreement at the time of the transfer that decedent would continue to enjoy that stock or that the right to enjoy the stock would later be conferred upon him.4 The evidence relating to events subsequent to the transfer is relevant only to the extent that it helps answer that question. .
In analyzing the evidence on that crucial question, it is important that the term “enjoyment” refers to the economic benefits obtainable from the transferred property. As stated in United States v. Byrum, 408 U.S. at 147, the term is “used to deal with situations in which the owner of property divested himself of title but retained an income interest or, in the case of real property, the lifetime use of the property.” “Enjoyment as used in the death tax statute is not a term of art, 'but is synonymous with substantial present economic benefit.” McNichol’s Estate v. Commissioner, 265 F.2d at 671; see also Commissioner v. Estate of Holmes, 326 U.S. 480, 486 (1946); Commissioner v. Estate of Church, 335 U.S. at 645.5
A. The terms of the June 30, 1948, transfer in trust — The transfer under the agreement of June 30,1948, whereby decedent placed his Gilman Paper common stock in trust, was not qualified in any way. Under that agreement, decedent transferred the stock irrevocably to himself, his son, Howard, and his attorney, I. Alfred Levy, as trustees. The income of the trust was payable to decedent’s two sons for life, with the remainder to their issue. All acts and decisions of the trustees were to be by a majority vote. The trustees undertook to execute the agreement “with all due fidelity and [to] account for all the moneys and things received by them hereunder to the beneficiaries.” In his individual capacity, decedent retained certain powers — e.g., to appoint a successor trustee in case one of the other trustees should resign, die, or otherwise be unable to continue to serve, and, with the approval of the other trustees, to amend the administrative provisions of the instrument. But none of the powers expressly retained are sufficient to constitute enjoyment of the stock within the meaning of section 2036(a)(1), and we do not understand respondent to contend otherwise.
B. “Control” of the corporation — Respondent contends that the only reason for the existence of the transferred stock was the right of its owner to “control” the destiny of Gilman Paper. Respondent argues that the agreement creating the trust was so structured as to enable decedent to continue to “control” the corporation and the transfer, therefore, was not a completed one.6 In making this argument, respondent in effect throws an umbrella over all that decedent did and might have done as trustee, director, and chief executive officer, and maintains that all those actions and possible actions, viewed in their totality, show that decedent retained the enjoyment of the stock. We do not agree.
Gilman Paper’s stock structure in 1948 — only 10 shares of common and nearly 10,000 shares of preferred stock — was highly unusual, but the practical and legal effect of the transfer would have been the same if the voting, dividend, and liquidation rights of the 10 common shares had been scattered among 10,000 common shares. Since respondent has valued the common shares at $24,500,000, respondent cannot be heard to say they were without independent value. Nor does it matter that Isaac Gilman’s objective in so structuring the corporation’s stock, and decedent’s purpose in creating the trust, was to keep the voting control of Gilman Paper in the Gilman family. The applicability of section 2036(a) turns not on the settlor’s motives in creating the trust, but on the nature and operative effect of the trust transfer.7
In terms of the operation and effect of decedent’s June 30, 1948, transfer, we do not think decedent had such control over Gilman Paper as to give him a substantial present economic benefit. Respondent at least implicitly concedes that managerial and administrative powers vested in a settlor-trustee, including the right to vote stock held in the trust estate, do not trigger the applicability of section 2036(a). Old Colony Trust Co. v. United States, 423 F.2d 601, 602 (1st Cir. 1970);8 Estate of Edward E. Ford, 53 T.C. 114, 127-129 (1969), affd. per curiam 450 F.2d 878 (2d Cir. 1971); Estate of Willard V. King, 37 T.C. 973, 978 (1962). Insofar as the voting of stock entails the control of a corporation, the Supreme Court in United States v. Byrum, 408 U.S. at 150, held that retention by a decedent in his individual capacity of voting control of a corporation “was not the retention of the enjoyment of the transferred property within the meaning of the statute.” Surely, then, the retention by decedent of the right in his capacity as a trustee to cast one of three votes as to how the stock, should be voted does not constitute retention of the enjoyment of the property.9
It is true, as emphasized by respondent, that the Court in United States v. Byrum, supra at 150, pointed out that there were “unrelated minority interests” who could see that Byrum and the other officers did not violate their fiduciary duty to all of the stockholders. But the express trust created by decedent constrained him from using his influence on the voting of the Gilman Paper common stock for his personal economic benefit. Moreover, the plain fact is that when the June 30, 1948, trust agreement was signed, decedent’s four sisters owned 40 percent of the common and 47 percent of the preferred stock.10 The sisters’ interests and those of their husbands were decidedly adverse to those of decedent or the trust. Indeed, one of the main reasons for Isaac Gilman’s 1940 agreement with decedent was to avoid conflicts between his sons-in-law and decedent which would adversely affect the company.11 Also, the remaindermen of the trust, decedent’s grandchildren, represented another adverse interest.
The adverse interests of decedent’s sisters were terminated in 1957, when the corporation purchased their shares, but there is no evidence of an express or implied agreement in 1948, when the trust was created, that the sisters would sell their common and preferred shares. The inference is to the contrary. The relevant corporate minutes indicate that negotiations to that end were not begun until a short time before January 1957; that relationships within the family were not harmonious; and that a controversy over the transaction persisted even after the sale was completed. Thus, the 1948 transfer in trust left the Gilman sisters with a substantial block of the Gilman Paper stock and their interests were adverse to those of both the trust and decedent.
Similar practical constraints effectively denied decedent unimpeded control of the board of directors. The bylaws of Gilman Paper, in accordance with State law, provided that the board of directors shall be elected annually. A majority vote of the trustees, who voted all the common stock, was required for election, and from 1948 to 1957 the board always included Charles Ballin, decedent’s brother-in-law. The minutes describe him as a representative or spokesman for the “other shareholders.” On three occasions (in 1951, 1953, and 1954), Ballin and Howard Gilman outvoted decedent and declared dividends over decedent’s strong opposition. I. Alfred Levy’s testimony describes other instances in which Ballin and Howard Gilman were able to persuade decedent to retreat from an initially taken position and agree with them. Thus, as a matter of fact, the record shows that decedent did not dominate the board. Moreover, as a matter of law, the trustees in selecting directors and the directors in managing the corporation were restrained by their fiduciary duties and obligations to the corporation and all its shareholders. See United States v. Byrum, 408 U.S. at 138.
C. Decedent’s employment as chief executive. — As to decedent’s executive position with the company, no doubt he, as well as the other two trustees, anticipated at the time the trust was created that decedent would continue to serve as the chief executive officer of Gilman Paper. The company was experiencing dramatic growth, and a corporate executive who is making money for his employer usually keeps his job. But decedent did not reserve the right to remain as chief executive of the company. Indeed, the direct testimony, elicited by respondent, is that there was no express or implied agreement that he would continue to serve,12 and Levy further testified that “we could have thrown him out.” The mere “probability of continued employment and compensation” does not constitute “the substantial ‘enjoyment of * * * [the transferred] property’ within the meaning of the statute.” United States v. Byrum, supra at 150; see also Estate of William F. Hofford, 4 T.C. 790, 794(1945).
Respondent attempts to demonstrate that decedent’s continued employment enabled him to benefit himself economically in other ways, citing the decision of this Court that in 1951 decedent’s salary was excessive. Gilman Paper Co., T.C. Memo. 1960-13, affd. 284 F.2d 697 (2d Cir. I960).13 For that year, decedent drew a salary of $250,000 from Gilman Paper, compared with $110,000 for the immediately preceding year and compared with the compensation of $370,000 he could have drawn under the October 5, 1945, resolution of the board of directors. This Court sustained the Commissioner’s determination that all except $110,000 of the $250,000 salary exceeded the “reasonable compensation” allowable as a deduction by section 23(a), I.R.C. 1939.
Gilman Paper contended in that case that decedent’s salary was paid pursuant to a contingent compensation contract embodied in the June 22, 1940, agreement with Isaac Gilman and the 1945 resolution of Gilman Paper’s board of directors. This Court held that the June 22, 1940, agreement was not a contingent compensation agreement but merely fixed a limitation on the amount payable as compensation. As to the corporate resolution, there was no showing that it reflected arm’s-length bargaining, the “only material fact of record respecting its adoption” being “the bare action of the board of directors.” Otherwise, the Court’s opinion is based largely upon a failure of proof, but one crucial factor was that decedent “waived” a preferred stock dividend of $115,302 in that year. This Court concluded that the “disallowed salary payment was, in fact, a disguised dividend.”14
Respondent claims that this Court’s opinion shows that decedent was able to exploit the corporation at will and that the failure of the corporation to seek reimbursement of the excessive portion shows that the exploitation was consistently unopposed or unrestrained. We think respondent tries to squeeze entirely too much from that opinion. The Commissioner challenged the reasonableness of decedent’s salary in only 1 of the 20 years following the creation of the trust. The Court stated that decedent’s salary was fixed “from time to time primarily as his own needs dictated,” but that statement was part of the Court’s rejection of Gilman Paper’s contingent compensation argument, not a holding that decedent did or could pillage the assets of the corporation. As far as we can tell, he never drew more as a salary than the amount to which he was entitled under the 1945 resolution. Thus, the excessive salary in 1951, if it was excessive by business standards, was aberrational and does not support respondent’s argument.
True, after the 1960 decision of the Court of Appeals, the corporation and the trustees did not seek to recoup the allegedly excessive salary paid decedent in 1951. But their failure to compel decedent to restore the amounts determined to have been excessive does not show decedent retained the right to a present economic benefit from the transferred stock. Petitioners’ reply brief provides this effective answer to respondent’s argument:
In asserting that the decedent should have been asked to repay the $140,000 disallowed as a deduction, the Commissioner has misunderstood the significance of the facts. The decedent waived a 1951 dividend and received increased 1951 compensation. The Treasury, understandably, complained that, by attempting to disguise a dividend as compensation, the corporation was seeking an unauthorized deduction. However, that attempt was not unfair to stockholders; to the contrary, transmutation of a dividend into deductible compensation can only benefit the corporation and, therefore, its stockholders. Such an attempt, successful or otherwise, is not unfair to stockholders. What the decedent had accepted with one hand he had relinquished with the other.
Gilman Paper’s failure of proof in this Court would not have aided it, with the tables turned, in proving a claim for recoupment against decedent. Its claim would have been faced with the 1945 resolution under which decedent was entitled to a salary of $370,000 and with the dramatic financial success of the corporation under his executive leadership.
Finally, the testimony included in the record of that case15 must be read in its context in the light of the issue being litigated. Some of that testimony, relied upon most heavily by respondent, was evidently discounted or disbelieved by the trial judge who heard it.16
D. The 1965, 1966, and 1967 accumulated earnings tax — Our Findings describe the Commissioner’s determinations, made after decedent’s death, of accumulated earnings tax liabilities for 1965,1966, and 1967. Respondent cites the failure of anyone on behalf of Gilman Paper or the trust to recoup the accumulated earnings tax from decedent’s estate as evidence that nothing and no one restrained decedent’s activities with respect to the company.
For 1965, since the matter was settled without any liability, no claim could have been asserted against decedent. Since decedent died on June 19, 1967, he could hardly be charged with the responsibility for the corporation’s failure to distribute a larger portion of its earnings for that year. Indeed, the assertion of the liability for 1967 indicates that decedent was not responsible for Gilman Paper’s conservative dividend policy since that policy was continued after his death. Settlement of the 1966 claim for only about 22 percent thereof, nearly 4 years after decedent died, suggests that the Commissioner regarded his claim as a weak one.
A recoupment claim for an accumulated earnings tax is a highly unusual one.17 Of necessity, such a claim would take the form of a stockholder’s derivative suit and would challenge the action of the board of directors in failing to declare adequate dividends. The amount recoverable by the stockholders who might have sued decedent’s estate (the trust, the foundation, and Charles Gilman, Jr.) was too small to justify the expense of litigation. Since the corporate minutes do not reflect that the other directors made any effort to change the corporation’s conservative dividend policy (except in 1951, 1953, and 1954, when they outvoted decedent), they would be liable, as a matter of law, equally with decedent. We can find no ground, as a practical matter, for holding that decedent retained the enjoyment of the stock in any of the facts relating to the corporation’s failure to assert against decedent’s estate a claim for the restoration of the 1966 accumulated earnings tax.
2. Retention of the Right to Designate the Recipient of the Property or the Income Therefrom under Section 2036(a)(2)
Respondent’s second contention is that decedent retained the “right,” either alone or in conjunction with other persons, to designate the persons who shall enjoy the property or the income therefrom. In making this argument, respondent again ignores the language of the statute and the terms of the trust and lumps decedent’s powers as trustee with his powers as a director and as chief executive officer. He argues: “The decedent in conjunction with another trustee, had the right to vote the shares and select the corporate directors and thereby control the dividend policy of Gilman.” In this connection, respondent points out that the trust instrument required the trustee to distribute its income currently and argues that, consequently, the power to declare dividends enabled decedent to regulate “not only the flow of income to the trust, but also the flow of income from the trust to the beneficiaries.”
Section 2036(a)(2) is cast in the terms of a retained “right.” As explained in United States v. Byrum, 408 U.S. at 136-137, in rejecting a similar argument:
The term “right,” certainly when used in a tax statute, must be given its normal and customary meaning. It connotes an ascértainable and legally enforceable power * * *. Here, the right ascribed to Byrum was the power to use his majority position and influence over the corporate directors to “regulate the flow of dividends” to the trust. That “right” was neither ascertainable nor legally enforceable and hence was not a right in any normal sense of that term.
The Court added (408 U.S. at 137): “The power to elect the directors conferred no legal right to command them to pay or not to pay dividends.” The Court rejected the Government’s argument that Byrum’s de facto powers, as distinguished from his legal rights, placed the entrusted stock within the reach of section 2036(a)(2) stating (408 U.S. at 138,142-143):
The Government seeks to equate the de facto position of a controlling stockholder with the legally enforceable “right” specified by the statute. * * *
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Byrum was * * * inhibited by a fiduciary duty from abusing his position as majority shareholder for personal or family advantage to the detriment of the corporation or other stockholders. * * *
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We conclude that Byrum did not have an unconstrained de facto power to regulate the flow of dividends to the trust, much less the “right” to designate who was to enjoy the income from trust property. * * *
A comparison of the facts of the two cases shows that Byrum had greater power to affect dividend policy than decedent in the instant case. Byrum’s powers were held individually while decedent’s powers were held in trust. By simply outvoting him in electing the board, decedent’s cotrustees could have indirectly thwarted his desires. Similarly, by outvoting him as a member of the board (as it did three times, in 1951, 1953, and 1954), the board could have directly defeated decedent’s wishes as to the payment of dividends. Byrum could have removed and replaced a trustee whereas decedent in this case had no such power. Thus, not only were all of decedent’s powers fiduciary ones, they were less extensive than those of Byrum.
We conclude that decedent retained neither the enjoyment of the transferred stock within the meaning of section 2036(a)(1) nor the right, alone or in conjunction with others, to designate the person or persons who would enjoy the stock or the income therefrom within the meaning of section 2036(a)(2).
Decision will be entered for the petitioners.
Reviewed by the Court.