The opinion
Chabot, J., dissenting: It may be that, as suggested in Judge Goffe’s concurring opinion, there is no need for an “independent” trustee in the instant case. But the opinion of the Court, and a majority of the Judges of the Court, are unwilling to dispense with the requirement of an independent trustee.
Presumably, the independent trustee is to serve as some additional guarantor that the transaction resulted in a real change in control over the property. In some manner, the independent trustee is thought to be necessary, notwithstanding the existence of the grantor trustee and (at least some of) the formal paperwork. Presumably, the fiduciary obligations imposed on the grantor trustee are not, by themselves, thought to be sufficient to establish the reality of a change of control. If the independent trustee is to serve some additional function in the analysis of the situation, it would appear that this function must inhere in the concept of “independence.” On the basis of the record herein, I do not see that the supposedly independent trustee demonstrated any independence. If all that is required is that the trustee be in existence, with formal fiduciary obligations, then I submit that the opinion of the Court establishes a requirement which can so easily be met in form (though not in substance) that no purpose in the real world is served by the creation of the role of independent trustee.
Since the opinion of the Court and the majority of the judges are unwilling to agree that the independent trustee is essentially a matter of form that may be dispensed with in the interests of efficiency, and since it is evident that the independence of Mr. Gross was only a matter of form, I conclude that petitioners have failed to satisfy the Court-imposed requirement of showing that there was an independent trustee. Consequently, I respectfully dissent.