Question
(redacted)
September 30, 1987
Premerger Notification Office
Bureau of Competition
Federal Trade Commission
600 Pennsylvania Avenue, NW, Room 303
Washington, D.C. 20580
Re:
Dear Mr. Kaplan:
This letter is confirm our telephone conversation of Tuesday, September 29, 1987.
I called you with the following question:When an irrevocable trust instrument names names a sole trustee the power to designate his own successor, does either the named trustee or the named successor trustee retain a sufficient degree of control over the trust such that he or she must be considered the trusts ultimate parent entity?
You referred me to the 801.1(b)(2) definition of control, and pointed out that, in this context, the term control would mean having the contractual power presently to designate a sole trustee. Your opinion was that because the named trustee has no power at all to designate a successor, and because the named successor has only a subsequent power, but no present power, to name a successor, neither of these individuals retain a sufficient degree of control over the trust such that they must be considered the trusts ultimate parent entity. The trust, in your opinion, would therefore be its own ultimate parent entity.
The 1987 amendments to 801.1(b) retain the relevant language, Having the contractual power presently . . ., and therefore would not alter this result.
We also discussed the hypothetical possibility that, should the named successor eventually become sole trustee, his power to appoint a successor might make him the trusts ultimate parent entity for purposes of a subsequent Hart-Scott-Rodino filing.
Mr. Wayne Kaplan
September 30, 1987
8709001
I greatly appreciate your help in this matter.
Sincerely,
(Redacted)
cc: (redacted)