[Kevin]

PJ: Basically you're just saying that the court reached its conclusion by saying that the donative intent was not implied by the conduct of the parties. It was very specific, see the language I quoted in stating that the characterization of the donee was not relevant, but rather, the court's interpretation of the intent was controlling.

Yes, in Duberstein, the characterization of the gift was something which was considered, but that it was considered is not the point -- it was just one aspect of the totality of all that was going on here.

What I'm saying here, is if this goes to tax court, and it probably won't, the conduct of the parties rather than how the transaction is characterized is controlling. If it looks like some quid pro quo happened, then that goes to the donative intent.

I'd quote you the West keynotes if doing so wasn't a violation of the TOS. You're right in that this is a case which could go either way. You're wrong if you think the characterization of the "gift" by the donor and donee is a controlling factor.