A retired Dell employee and his wife created an FLP to hold some of their Dell stock, intending to make gifts of limited partnership (or LP) interests, and they made gifts of most of their LP units six days later. They made subsequent annual exclusion gifts about two months later (at the beginning of the next calendar year) and one year after that. The agreement contained commonly used transfer restrictions, restricting transfers of LP interests without approval of all partners, and giving the partnership the right to purchase non-permitted assignments at the fair market value (i.e., considering discounts) of those assignee interests. The Tax Court rejected the IRS argument that the gift of LP interests six days after the partnership was created was an indirect gift of a proportionate part of the assets contributed to the partnership (i.e., without a discount). The court also concluded (again with no dissents) that transfer restrictions in the agreement must be ignored under § 2703 in valuing the transfers. (The reasoning as to the bona fide business arrangement test would seem to apply to many FLPs consisting of investment assets and the reasoning as to the “device test” would seem to require ignoring transfer restrictions for valuation purposes in many buy-sell agreements involving family members, even for actively managed businesses). The court valued the transferred LP interests by applying combined lack of control and marketability discounts of 22.4%, 25%, and 16.25% in 1999, 2000, and 2001, respectively.
The case was tried well over two years ago. In light of the long delay, planners have been anxiously waiting to see how the Tax Court deals with the IRS’s “integrated transaction” theory for attacking gifts of LP interests soon after (or in some cases, months after) an FLP has been formed.
The result of the case is very fact dependent, and the facts are summarized below in some detail.
1. On November 2, 1999, parents created an FLP by transferring some of their Dell stock to the partnership. Parents were the general partners (0.89% each) and they owned 98.08% of the FLP as limited partners. (In addition, a trust for children contributed some Dell stock for a very small [0.14%] LP interest.)
2. The parents intended to make gifts of LP interests when they created the partnership. Husband’s primary purpose for the partnership was to preserve his Dell wealth and “disincentivize” his children from spending it. Wife’s primary purpose was to use the partnership to educate children about family wealth. Potential gift tax savings from valuation discounts “played a role” in the decision to form the FLP.
3. The partnership agreement contained transfer restrictions commonly found in partnerships. The agreement prohibited limited partners from transferring “all or part” of their interests without the consent of all partners (paragraph 9.1); however, transfers to certain family members were allowed (paragraph 9.2). If a purported prohibited transfer were deemed to be effective, the partnership would have the right to purchase the non-permitted assignment at fair market value (presumably, taking into account appropriate discounts) (paragraph 9.3).
4. Six days after the partnership was created (i.e., on November 8), parents made gifts of 70.06% of the LP interests to the trust for their children (and partly to a custodianship for one child, in order to equalize their prior gifts to custodianships for their other children).
5. About two months later (on January 4, 2000), parents made additional annual exclusion gifts of LP interests to the trust for their four daughters (which they thought were worth $80,000, after applying a 49.25% discount).
6. The following year (on January 5, 2001), the parents contributed more Dell stock to the partnership in return for more LP units, and about a month later (on February 2) they made additional annual exclusion gifts of LP units to custodianships for their four daughters (which they thought were worth $80,000, after applying a 49.25% discount).
7. IRS arguments in its explanation of adjustments in gift tax audits for 1999, 2000, and 2001:
a. The transfer of assets to the FLP is in substance an indirect gift. (The opinion said that the IRS explanations were the same for all three years, but at trial the IRS made the “indirect gift of proportionate assets” argument only to the gifts made in 1999.)
b. The transfer of LP interests is more analogous to an interest in a trust, and should be valued as such. (The IRS dropped this argument at trial.)
c. The transferred interests should be valued without regard to “restrictions on the right to sell or use the partnership interest” in the partnership agreement, citing § 2703.
d. Restrictions on liquidation should be ignored for valuation purposes under § 2704(b). (The IRS dropped this argument at trial.)
e. The amount of the overall discount should be 28%, not 49.25%. [Observe, that the court ultimately allowed even lower discounts (i.e., 22%, 25% and 16.25% in the three different years) than the 28% amount that the IRS allowed in the gift tax audit adjustments.]
1. The gifts made six days after the FLP was formed cannot be viewed as an indirect gift of the shares contributed to the FLP under the gift tax regulations or under the step transaction doctrine.
2. Transfer restrictions in the partnership agreement are disregarded for valuation purposes, under § 2703(a), and the § 2703(b) safe harbor does not apply because the bona fide business arrangements test and the device test are not satisfied. (As to the comparability test, the court acknowledged that the experts agreed that the restrictions are common in agreements entered into at arm’s length. Because the first two tests in the safe harbor were not met, the court said that it did not need to address a novel argument by the IRS that overall circumstances make it unlikely that arm’s length third parties would agree to any of the restrictions because third parties would not “get into this deal with the Holmans, period.”)
3. Appropriate discounts were considered, and the court ended up significantly closer to the IRS’s position, allowing overall discounts of 22.4%, 25% and 16.25% in 1999, 2000, and 2001, respectively.
1. Indirect Gifts.
a. No Indirect Gift Under Shepherd/Senda Cases. Gift tax regulations provide that contributions to a corporation are treated as indirect gifts of a proportionate part of those assets to other shareholders. Similarly, contributions to a partnership will generally be treated as an indirect gift to the other partners.
In Shepherd v. Commissioner, 115 T.C.376 (2000), aff’d, 283 F.3d 1258 (11th Cir. 2002), the taxpayer transferred assets to a newly formed FLP in which he was a 50% owner and his two sons were 25% owners. Under the agreement, the contributions were allocated pro rata to the capital accounts of each partner, rather than being allocated totally to the capital account of the contributing partner. The contributions were treated as indirect gifts to each of the two sons of an undivided 25% interest in the assets.
In Senda v. Commissioner, T.C. Memo. 2004-160, aff’d, 433 F.3d 1044 (8th Cir. 2006), contributions to the partnership and gifts of LP interests were made on the same day. The court could not determine that the contribution occurred before the ownership transfer, and concluded: “At best, the transactions were integrated (as asserted by respondent) and, in effect, simultaneous.” The contributions were treated as indirect gifts to the other partners.
The Holman court refused to apply those prior cases, because the contributions to the partnership were clearly made six days before the transfer of the LP interests. In Shepherd , the LP units were transferred before the contribution, and in Senda, the contribution and LP transfers were made the same day and were deemed to have occurred simultaneously. “The facts of the Shepherd and Senda cases are materially different from those of the instant case...”
b. No Indirect Gift Under Step Transaction Doctrine. In Senda, the Tax Court concluded that the contribution to the FLP and the transfer of ownership units at best “were integrated (as asserted by respondent) and, in effect, simultaneous.” The Eighth Circuit, in affirming, stated that the key findings of the Tax Court “show that the transactions here were integrated and simultaneous.” The IRS had argued in Senda that even if the contribution had been made (and allocated to the parents’ capital accounts) earlier in the day than the ownership transfer, there should be no difference. The Eighth Circuit responded to an argument by the taxpayers that the order of the transfers did not matter because the partnership agreements credited contributions to the parents’ capital accounts before being credited to the children’s accounts. The Eighth Circuit rejected that argument, stating: “In some situations, formally distinct steps are considered as an integrated whole, rather than in isolation, so federal tax liability is based on a realistic view of the entire transaction.” [The Eighth Circuit observed that the Tax Court had reasoned similarly: “The tax court recognizes that even if the Sendas’ contribution would have first been credited to their accounts, this formal extra step does not matter.”]
The IRS tried to extend the Eighth Circuit’s discussion of the step transaction doctrine to a situation in which the ownership transfer clearly occurred after the formation and funding of the partnership. In light of the Senda background, the IRS argued that the formation and funding of the partnership “should be treated as occurring simultaneously with their 1999 gift of the LP units since the events were interdependent and the separation in time between the first two steps (formation and funding) and the third (the gift) served no purpose other than to avoid making an indirect gift ...”
The Tax Court in Holman noted that there are three potential situations when the step transaction doctrine might apply (the binding commitment situation, the interdependence situation, and the end result situation.) The court said that the IRS appears to be arguing that the interdependence test applies, and that test requires that the legal relations created by one transaction would have been fruitless without a completion of the series. The court concluded that while the parents intended to make gifts of LP interests when they formed the FLP, it could not conclude “that the legal relations created by the partnership agreement would have been fruitless had petitioners not also made the 1999 gift.” Indeed, the court noted that the IRS did not contend that the step transaction or integrated transaction doctrine applied to the gifts made in early 2000 (two months after the creation of the FLP) and in 2001.
The court gave two reasons for distinguishing the Senda court’s conclusion that transfers to partnerships coupled with transfers of limited partnership interests to their children on the same day were “integrated steps in a single transaction.” First, the transfers in this case were not made the same day. Second, there is a real economic risk of a change in value of the Dell stock (and the value of the LP interests). The court believed that the IRS conceded that a two-month separation is sufficient to give independent significance to the funding and the gift two months later in early 2000, presumably because of the economic risk of a change in value during the two-month period.
The court raises the interesting question of how much delay is needed. A one day delay would satisfy its first reason for distinguishing Senda. Satisfying the second reason would require enough delay to reflect a real economic risk of a change in value:
“We draw no bright lines. Given, however, that petitioners bore a real economic risk of a change in value of the partnership for the six days that separated the transfer of Dell shares to the partnership’s account and the date of the 1999 gift, we shall treat the 1999 gift the same way respondent concedes the 2000 and 2001 gifts are to be treated; i.e., we shall not disregard the passage of time and treat the formation and funding of the partnership and the subsequent gifts as occurring simultaneously under the step transaction doctrine.”
The court did acknowledge in footnote seven that the “real risk of a change in value arises from the nature of the Dell stock as a heavily traded, relatively volatile common stock. We might view the impact of a six-day hiatus differently in the case of another type of investment; e.g., a preferred stock or a long-term Government bond.”
2. Section 2703
a. Statute and Safe Harbor Exception. Section 2703(a) provides that the value of any property transferred is determined without regard to any right or restriction related to the property. (The parties agreed that the transfer restrictions constitute restrictions on the right of a limited partner to sell or assign her partnership interest.) Section 2703(b) provides a safe harbor from the application of § 2703(a) if each of three requirements are satisfied: (i) It is a bona fide business arrangement; (ii) It is not a device to transfer such property to members of the decedent’s family [the regulations refer to “natural objects of the transferor’s bounty” to make clear that § 2703 applies to gifts as well as death transfers] for less than full and adequate consideration in money or money’s worth; and (iii) Its terms are comparable to similar arrangement entered into by persons in an arm’s length transaction.
(The taxpayer argued that the literal language of § 2703, which refers to the “decedent’s family,” should not apply to inter vivos gifts. The court rejected that argument, observing that the taxpayers did not object to the validity of the regulation’s reference to “natural objects of the transferor’s bounty.”)
b. Flunks Bona Fide Business Arrangement Requirement. The court acknowledges that this test does not necessarily require an actively managed business. However, the fact that this did not involve a closely held business seemed important to the court’s reasoning. The court discussed Estate of Amlie, legislative history, and cases recognizing that maintaining control of a closely held business constitute a bona fide business arrangement.
In Estate of Amlie v. Commissioner, T.C. Memo 2006-76, the court recognized that the price set in an agreement for selling a minority interest in a bank to an heir would be recognized, even though the heir resold the shares two months after the decedent’s death for a greater price. As to the bona fide business arrangement test, the court recognized that the agreement hedged the risk of the ward’s holdings and was an element of planning for future liquidity needs of decedent’s estate. The court distinguished Amlie because, even though the agreement in that case involved an investment asset, it addressed a conservator fulfilling its fiduciary duties by hedging risks and providing for expected liquidity needs of the ward’s estate; none of those reasons applied to the Holman transfer restrictions.
Legislative history of § 2703 includes a Senate Finance Committee Report which observes that buy-sell agreements
“are common business planning arrangements ... that ... generally are entered into for legitimate business reasons.... Buy-sell agreements are commonly used to control the transfer of ownership in a closely held business, to avoid expensive appraisals in determining purchase price, to prevent the transfer to an unrelated party, to provide a market for the equity interest, and to allow owners to plan for future liquidity needs in advance.” [The italicized words are my emphasis, and they are referred to below.]
Various pre-§ 2703 cases have recognized that maintaining control of a closely held business constitutes a bona fide business arrangement, which is a requirement that the courts have long required to recognize the price set in a buy sell agreement for estate tax purposes. The court emphasizes that “[h]ere, however, we do not have a closely held business.”
While the transfer restrictions “aid in control of the transfer of LP units, the stated purposes of the partnership, viewed in the light of petitioners’ testimony as to their reasons for forming the partnership and including paragraphs 9.1 through 9.3 in the partnership agreement, lead us to conclude that those paragraphs do not serve bona fide business purposes.” The court concluded:
“There was no closely held business here to protect, nor are the reasons set forth in the Committee on Finance Report as justifying buy-sell agreements consistent with petitioners’ goals of educating their children as to wealth management and ‘disincentivizing’ them from getting rid of Dell shares, spending the wealth represented by the Dell shares, or feeling entitled to the Dell shares.”
[Observe: The court did not address why the phrase “to prevent the transfer to an unrelated party” in the Senate Finance Committee report did not apply here.]
c. Device Test. The court observed at the outset that the transaction was not a “device” to transfer the LP units for less than adequate consideration, in effect reiterating that § 2703 is not being applied to disregard the entire partnership for valuation purposes. The issue is just whether the transfer restrictions constitute a device to transfer property to natural objects of the transferor’s bounty for less than full consideration.
The court concludes that the transfer restrictions constitute a “device” under rather strange reasoning. The court reasons that the purpose of the transfer restrictions is to discourage the children from dissipating wealth. The transfer restrictions do that by depriving a child of realizing the difference between the fair market value of his LP units and the units’ proportionate share of the partnership’s NAV. Furthermore, if the partnership exercises its right to purchase a non-permitted assignment at the fair market value of the units (i.e., at their discounted value), it would be able to repurchase units at less than the proportionate NAV of the partnership, which, in turn, would increase the value of the interests of remaining partners (who would include natural objects of the parents’ bounty). The court believed that Mr. Holman
“understood the redistributive nature of paragraph 9.3. [i.e., the partnership’s purchase option] and his and Kim’s authority as general partners to redistribute wealth from a child pursuing an impermissible transfer to his other children. We assume, and find, that he intended paragraph 9.3 to operate in that manner, and this intention leads us to conclude, and find, that paragraph 9.3 is a device to transfer LP units to the natural objects of petitioners’ bounty for less than adequate consideration.”
[Observe that because the bona fide business arrangement test is not satisfied, none of the transfer restrictions are considered in valuing the property transfers. However, the court’s analysis of the device test would invalidate just the repurchase option in paragraph 9.3 under § 2703, not the general prohibition on transfers in paragraph 9.1 of the agreement.]
[As discussed below in Item 8 of the Observations, observe that the court’s analysis would cause § 2703 to apply to this very common provision in most FLPs, and raises an additional possible argument that the IRS might pursue to argue that §2036(a)(2) or §2038 applies if the parents are general partners of an FLP.]
d. Comparability Test. It is interesting that planners typically have believed that the bona fide business arrangement test and the device test can be satisfied with careful planning, and that the comparability test is the most difficult test in § 2703(b). However, in this case, the court said that the agreement did not satisfy the first two requirements, and did not directly apply the comparability test.
A law professor testified for the IRS and a practicing attorney who has participated in drafting or reviewing more than 300 limited partnership agreements testified for the taxpayer. Both agreed that “transfer restrictions comparable to those found in paragraphs 9.1 thought 9.3 are common in agreements entered into at arm’s length.” [Observe that the court did not insist on testimony about actual agreements involving comparable companies, as suggested in Estate of Blount, and Smith, discussed below in Item 10 of the Observations.]
The court observed that this would seem to be all that the taxpayers need to show to satisfy the comparability test. However, the IRS’s expert had testified that the fact that these transfer restrictions were common in agreements entered into at arm’s length was irrelevant because “The owners of a closely held business at arm’s length would never get into this deal with the Holmans, period, so the issue [transfer restrictions] wouldn’t come up.” (The expert pointed to the nature of the assets, the non-expertise of the general partner, the 50-year term, and the susceptibility of the single asset.) The IRS apparently argues that even if the specific transfer restrictions are comparable to restrictions in arm’s length arrangements, there is also an “overall circumstances” consideration as to whether arm’s length third parties would agree to any restrictions on sale or use of assets in the situation. In light of the fact that the court had already determined that the § 2703(b) safe harbor did not apply (because neither the bona fide business arrangement test nor the device test were satisfied), the court concluded that “we need not (and do not) decide today whether respondent is correct in applying the arm’s length standard found in section 2703(b)(3) to the transaction as a whole.”
e. Impact on Valuation. Despite all of the analysis and discussion about the transfer restrictions, it appears that ignoring the transfer restrictions in valuing the LP units had little impact on the value of the gifts. The IRS’s expert did not believe that the restrictions had an impact on value beyond its estimated lack of control and lack of marketability discounts. The taxpayer’s expert believed (as reflected in Appendices A-D to the opinion) that taking paragraph 9.3 (i.e., the partnership’s ability to repurchase any non-permitted transfers at the discounted fair market value of the interest) into consideration would only reduce the value by about 2.4%.
a. Net Asset Value Determination. The experts disagreed as to the NAV of the partnership for the 2000 and 2001 gifts. The regulations require that transfers of stocks traded on an exchange must be valued at the mean between the highest and lowest quoted selling prices on the date of the transfer. The taxpayers argued that regulation does not apply because the gifts being valued are partnership interests that do not trade on public markets. The court
b. Lack of Control Discount. Both experts determined lack of control discounts by reference to the prices of shares of publicly traded, closed end investment funds, which typically trade at a discount relative to their share of fund NAV, reasoning that the discounts must be attributable, at least to some extent, to a minority shareholder’s lack of control over the investment fund. There was a question as to what samples to include in the analysis, and the court used samples from the intersection of the experts’ data sets. There is also an interesting discussion of how to keep “outliers” in the samples from unduly impacting the conclusion. The taxpayer’s expert dealt with that concern by using the median sample (i.e., the sample for which half the samples had higher values and half the samples had lower values). (The taxpayer’s expert had not calculated whether this produced a different result than use of the mean, and the court concluded that the IRS’s expert’s approach to dealing with outliers was “more thoughtful.”) The IRS’s expert made its determination after calculating both the mean and interquartile mean (i.e., the mean of the 50 percent of the data points falling between the 25th and 75th percentiles).
The taxpayer’s expert applied adjustments for some qualitative factors, including lack of diversification and professional management. The court rejected any such discounts in this particular situation because the lack of diversification negates any need for professional management. No adjustment to the lack of control discount is needed for lack of diversification because the partnership was “transparently, the vehicle for holding shares of stock of a single, well-known corporation.”
The court settled on lack of control discounts that were closer to the discounts suggested by the IRS’s expert. The lack of control discounts for 1999, 2000, and 2001 were 11.32%, 14.34%, and 4.63%, respectively.
c. Lack of Marketability Discount. The court acknowledged that the value being determined was “more pertinently, assignee interests in the partnership,” and that a discount for lack of marketability should be applied after applying the lack of control discount. Both experts looked to studies of discounts in private placement transactions of restricted stock. The court noted that “[t]hey disagreed principally on the likelihood of a private market among the partners for LP units.”
The taxpayer’s expert believed that the discounts in private placement transactions of restricted shares are the starting point for determining the lack of marketability discount, but that further adjustments should be made because there is virtually no ready market. The taxpayer’s expert increased the discount from median and mean discounts of 24.8 and 27.4% from the restricted stock studies to 35%. The court did not accept that he had any quantitative basis for the amount of the adjustment, and that the adjustment to 35% was just a guess.
The court adopted the approach of the IRS’s expert, who looked initially to the difference in private placement discounts in restricted studies for two periods. (i) For the period before 1990 (when there was a two year holding period under Rule 144 for restricted stock and before institutional investors were allowed to buy and sell restricted stock), the average discount was 34%. (ii) For the period from 1990 to 1997 (when institutional investors were allowed to buy and sell restricted stock, but before the holding period was reduced to one year in 1997), the average discount was 22%. The difference of 12% “would appear to reflect the discount investors required for having virtually no secondary market.” The appraiser considered whether the discount should be increased to reflect ongoing marketability concerns with LP interests vs. the only two-year restriction that applies in the two relevant periods of the restricted stock studies. The court agreed that no significant adjustment should be made for that factor because the partners can agree to dissolve the partnership at any time and there would be an economic interest to both a limited partner wanting to exit the partnership and the remaining partners “to strike a deal at some price between the discounted value of the units and the dollar value of the units’ proportional share of the partnership’s NAV.” [Observation: Does taking into consideration that the remaining owners may have a special incentive to buy the interest violate the general valuation principle to consider only the hypothetical willing buyer-willing seller?] The court observed that the provision in the agreement allowing consensual dissolution indicates that the preservation of family assets is not an unyielding purpose in this fact situation. The court adopted the 12.5% lack of marketability discount suggested by the IRS’s expert for the 1999, 2000, and 2001 gifts.
d. Overall Discounts. The overall seriatim lack of control and lack of marketability discounts reported by the taxpayer on the gift tax returns was 42.5%, and the IRS gift tax audit report allowed a 28% discount. The court ended up with overall discounts of 22.4%, 25% and 16.5% in 1999, 2000, and 2001, respectively. (In this case, much larger gifts were made in 1999, and the determination of the discount in that year was particularly significant.)
1. Continued Trend of Allowing Significant Discounts for Marketable Securities FLPs. The overall discount for this FLP, which held only one publicly traded stock, was significant. In 1999, the year in which most of the gifts were made, the court allowed an overall discount of 22.4%. (The discounts allowed for 2000 and 2001 were 25% and 16.5%, respectively; the discount being much lower in 2001 because of the very low discount reflected in studies of closed-end funds for 2001, which resulted in a very low lack of control discount in 2001.) The court’s analysis suggests that obtaining close to 50% discounts for marketable securities FLPs (particularly one that holds only one stock) is not realistic; but this case continues the almost uniform trend of allowing significant discounts for marketable securities FLPs. (The case obviously does not include a §2036 issue, because this is a gift tax case, and that is the issue that has generated the most success for the IRS.)
2. Rejection of Integrated Transaction Approach Where Gifts of LP Interests Are Made Soon After Creation. One of the most significant aspects of this case is its rejection of the IRS’s “integrated transaction” approach of treating gifts of LP interests within some period after an FLP is created as being indirect gifts of a proportional value of the assets in the FLP (without a discount). The court concluded that there is independent significance to the formation/funding transaction and the gift transaction as long as there is a “real economic risk of change in value of the partnership” during the period of the delay. The court reached this conclusion even though it concluded that the parents clearly intended to make gifts of LP units at the time the FLP was formed.
Two Year Wait. The case was tried well over two years ago (in December, 2005), and the IRS has been making the “integrated transaction” theory attacks on LP gifts during this intervening period. In light of the long delay, planners anticipated that this would be a Tax Court opinion (rather than just a memorandum opinion) and have been anxiously waiting to see how the Tax Court deals with the IRS’s “integrated transaction” theory for attacking gifts of LP interests soon after (or in some cases, months after) an FLP has been formed. It would be very interesting to know what issues caused the very long delay in order for the judges to come to agreement in issuing the opinion. While this case was issued as a Tax Court opinion rather than as a memorandum case, it was not a “reviewed” opinion, thus accounting for the absence of concurring or dissenting opinions.
3. How Long of a Delay is Needed? The court approved a six-day delay where the FLP asset was a “heavily traded, relatively volatile common stock.” The court said that it might view a six-day hiatus differently for other types of investment that do not realistically change much in value over that short of a time frame (it gives the examples of “preferred stock or a long-term Government bond.”) Another example might be for real estate — which may have very little risk of changed value over a short time period (or even perhaps over a period of several months).
Bottom line: For FLPs that have, as a significant portion of their assets, a portfolio of diversified common stocks, a very short time frame (such as the six-day delay in Holman) should have a real economic risk of a change in value, and should satisfy the “independent significance” test. The court’s reasoning, however, raises a fact question as to how much time delay is needed for there to be a real economic risk of a change in value.
4. Appeal to Eighth Circuit; Significant in Light of Senda Dictum. It is the dictum in the Eighth Circuit Senda opinion that raised particular concerns about possible court acceptance of an “integrated transaction” approach. Thus, it is particularly relevant that this case is appealable to the Eighth Circuit Court of Appeals.
5. Planning Pointer: Delay and Documentation. Following the Eighth Circuit’s Senda case, the IRS apparently began making the “integrated transaction” argument more often in gift tax audits. There was a report several years ago of the IRS making the integrated transaction argument in a situation where the gift of LP units was not made for eight months after the FLP formation.
Planners have adopted varying approaches in light of this argument. Some respected planners just plan to have at least a one day delay between the FLP formation and the gift, to overcome a Shepherd or Senda argument where there is any uncertainty that the ownership might have happened before or simultaneously with the FLP funding. (Indeed, the full Tax Court, in Estate of Jones, 116 T.C. 121 (2001) recognized the effectiveness of gifts of partnership interests made on the same day that partnerships were created, where the facts clearly showed that the gift of LP units was made after the funding of the FLP. However, the IRS has argued in subsequent cases that it did not make the “integrated transaction” argument in Jones, so the court obviously did not consider it.) Other planners have been more conservative, and wait at least six months before making ownership transfers.
One respected planner’s recommendation: Make clear that assets are held by the partnership and verify that before making gifts of limited partnership interests. While the planner may discuss with the client the possibility of making gifts, do not discuss with the client how much the client wants to give when the FLP is created. Leave that as an open question so no one can argue that there was a step transaction or prearranged transaction.
In light of the reasoning in Holman (which is adopted by the full Tax Court with no dissents), it probably makes sense to wait more than just one day before making gifts of LP units, to leave time for a “real economic risk of a change in value.” However, for a FLP holding a single volatile stock, a delay of as little as one week should be sufficient. For an FLP holding a portfolio of common stocks, there may be less volatility than for a single stock, and query whether a delay of longer than a week would be necessary? However, even diversified stock portfolios can have significant value changes over a week. For an FLP that holds only real estate, planners may want to consider a longer delay, in light of the fact that real estate values typically do not change measurably over a very short period of time.
However, at least before seeing the result of a possible appeal to the Eighth Circuit, conservative planners may want to continue following the more conservative approach adopted by some planners, as described above.
6. How to Make Additional Contributions to an Existing FLP. Shepherd treated additional contributions to an existing FLP as indirect gifts to the remaining partners of a proportional part of the contributed assets (without a discount). However, in that case, the additional contributed assets were allocated directly to all of the partners’ capital accounts proportionately. It is interesting that the IRS did not even argue that additional contributions to the Holman FLP in early 2001 resulted in indirect gifts (without a discount) to the remaining partners, where the parents received new LP units in return for their additional contribution to the FLP.
Planning Pointer: To avoid the indirect gift treatment, it is critical that any additional contribution of assets to a partnership is treated as a contribution in return for additional interests in the partnership to that contributing partner. (However, various private rulings reasoned that merely booking additional contributions to the transferor’s capital account is not sufficient. TAM 200432015 & 200212006.) The additional percentage interest allocated to the partner (and the resulting increase in that partner’s capital account) should be documented carefully in the instrument of conveyance making the contribution to the partnership. A separate instrument should document the subsequent gift of limited partnership interest. (The court in Senda gave little weight to gift assignment documents that were not signed for weeks [or even years] later.)
7. Bona Fide Business Arrangement Test Under §2703 May Be Hard to Meet For Transfer Restrictions in Many FLPs. For many years, cases involving the effectiveness of the price set in buy-sell agreements have considered a similar bona fide business arrangement test, and have almost uniformly found that planning for continuity of ownership satisfies the bona fide business arrangement test. In Estate of Amlie, the IRS argued that the settlement agreement regarding the purchase of the ward’s bank stock at the ward’s death could not meet the bona fide business arrangement test because the bank stock “was not an actively managed business interest but merely an investment asset.” The court rejected that argument, and found that hedging the risk of a fiduciary’s holdings and planning for future liquidity needs constitute sufficient “business purposes” for purposes of this test.
The court also cited legislative history. Interestingly, the court says that “the reasons set forth in the Committee on Finance Report” do not apply, without addressing specifically why the “to prevent the transfer to an unrelated party” phrase does not apply. That seems to be directly related to the purpose of the transfer restrictions.
Despite the decision in Amlie finding the existence of a sufficient “business arrangement” in a situation involving investment assets, the full Tax Court here refuses to find a sufficient business purpose, and emphasizes that there is no closely held business (although the court begins its discussion with an acknowledgement that an “actively managed business” is not required).
The effect of Holman is that providing for continuity of ownership or control of who becomes a successor partner is not a sufficient business purpose for this test where there is not a closely held business. A stricter test is applied where there is not a closely held business. We do not know precisely what the test is in that situation. In Amlie, an agreement that required a sale of stock at a set price to hedge risks and to provide for liquidity was a sufficient business purpose. Even in that situation, if the agreement merely established transfer restrictions, those purposes would not have applied to the transfer restrictions. The court says that the purposes of “disincentivizing” children from getting rid of specific partnership assets, of spending the wealth represented by partnership assets, or feeling entitled to partnership assets, or educating children about family wealth are not sufficient purposes for this test. (This is reminiscent of the position in several cases [before Mirowski] that factors related to facilitating gifts are not sufficient “legitimate and significant non-tax reasons” to apply the bona fide sale exception to §2036.)
As a practical matter, those are the purposes served by having transfer restrictions in an investment FLP that is being owned or transferred to younger family members. The court’s reasoning raises a huge question as to whether transfer restrictions can be considered in valuing shares in many (if not most) FLPs that do not involve actively managed businesses. (However, as discussed in Item 12 below, there may be very little valuation impact by ignoring transfer restrictions in the agreement for valuation purposes.)
8. Device Test Analysis Seems Misguided; If the Court is Correct, Many Transfer Restrictions and Buy-Sell Agreements Will Not Be Respected Under §2703 Even For Actively Managed Businesses. The court reasons that transfer restrictions prevent an LP from realizing full value of a proportional part of the FLP’s assets. Furthermore, the entity’s ability to acquire any interest that is purportedly transferred in contravention of the agreement based on the fair market value of the interest (presumably with discounts) means that the value of the remaining partners’ interests will increase in value. Critical to this analysis is that the parents (who are the donors of the gifts) are the ones who can decide on behalf of the partnership to exercise the purchase option, and thereby redistribute value to the other owners for less than full consideration.
An example may help. Assume that an FLP has a NAV of $1,000. Assume that the parents own 10 units of ownership and that three children each own 30 units of ownership. Assuming a 25% discount for the units, each child’s value would be 1,000 x 30% x 75% [reflecting a 25% discount], or $225. If one child attempts to transfer his units without getting consent, (and if the transfer is deemed to be effective despite the prohibition in the agreement), the partnership could purchase those units, at their discounted value of $225. The partnership would now have a $1,000 – 225, or $775 NAV. After the redemption, there would be 70 ownership units outstanding, and each remaining child would own 30/70, or 42.86% of the partnership units. Each remaining child’s units would be valued at $775 x 42.86% x 75%, or 249.11. Thus, the court’s conclusion is right in that an exercise of the repurchase option would increase not only each remaining child’s proportionate share of the partnership’s NAV but also each remaining child’s fair market value of the LP units themselves.
If the Holman court’s approach is correct, many buy-sell agreements, even for active businesses, would not be respected under the § 2703 safe harbor. If the parents hold offices in the entity or own sufficient ownership to control (or perhaps even to impact) the decision to exercise any available purchase option that arises upon a purported transfer that is not permitted under the agreement, the parent could redistribute value for less than full and adequate consideration, which in the court’s opinion would flunk the device test. That would be a huge surprise to planners of buy-sell agreements, and is a totally novel approach to viewing the long held requirement applied by case law of requiring that the agreement is not a device to transfer value to natural objects of the decedent’s bounty for less than full consideration. (That test has historically been applied by looking primarily to the fairness of the purchase price or formula for determining the purchase price that is set in the agreement.)
Perhaps application of the Holman approach to buy-sell agreements would just mean that the transfer restriction and repurchase option would not be given effect for valuation purposes under § 2703, but that the requirement of purchasing an interest in the entity at a determined purchase price upon the occurrence of a triggering event (such as death) would be respected. However, even a redemption at death for the fair market value of an owner’s interest rather than at a full proportional value of the entity’s NAV will have the effect of increasing the value of the remaining owners (for no additional consideration from them), which could arguably invoke the court’s reasoning.
The court’s reasoning (i.e., that the parents have the power to redistribute wealth among their children for no consideration in the event of an impermissible transfer) raises the specter of whether these types of very common transfer restrictions with purchase options for impermissible transfers might give the IRS an additional argument to cause §2036(a)(2) or 2038 to apply if parents are the general partners (and therefore can control or impact the decision of whether the partnership will exercise its purchase option).
9. Novel Approaches Under §2703; Possible Treatment as Dictum. It is interesting that the analysis under one of the two tests is dictum, in that flunking either test means that the safe harbor is unavailable. Having decided that the bona fide business arrangement test was not satisfied did not keep the court from also finding that the device test was not satisfied either (under a novel theory). Of course, the alternate findings may be important if the appellate court reverses on one of the tests but not the other. However, the Tax Court did not feel similarly inclined to address a novel theory posed by the IRS with respect to the comparability test.
10. Reasonable Approach to Evidence Required to Satisfy Comparability Test Under §2703. Almost all cases that have addressed the § 2703(b) safe harbors have ended up having an extended discussion of the comparability test with little discussion of the bona fide business arrangement or device test. This case is the opposite.
The case is a welcome development with respect to the evidentiary standards for satisfying the comparability test, by reflecting a reasonable approach of evaluating opinions of experts as to whether certain types of transfer restrictions (or presumably other provisions in buy-sell agreements) are comparable to provisions in agreements among unrelated parties generally, without requiring expert testimony of specific examples of other agreements. This is a welcome change from the approach of several other cases that have addressed the comparability requirement.
In Estate of Blount v. Comm’r, T.C. Memo. 2004-116, aff’d in part, rev’d in part, 428 F.3d 1338 (11th Cir. 2005), the court applied the comparability test very strictly. To meet the comparability test, the court wanted to see (1) buy-sell agreements actually negotiated in arm’s length situations under similar circumstances and in similar business, and (2) that are comparable (as to term of agreement, present value of property, expected value at time of exercise, and consideration offered for the option) to the terms of the agreement being tested. The Tax Court found that the estate’s expert testimony was not sufficient. The expert said that a four times earnings multiple is typically used to value construction companies and in three purportedly comparable companies he examined. The court said the companies were not really comparable. Furthermore, the court noted that the expert did not base his opinion on actual agreements involving comparable companies: “He did not present evidence of other buy-sell agreements or similar arrangements, where a partner or shareholder is bought out by his coventurers, actually entered into by persons at arm’s length...Because Mr. Grizzle has failed to provide any evidence of similar arrangements actually entered into by parties at arm’s length, as required by section 2703(b)(3), and his opinion is based solely on his belief that the purchase price for decedent’s BBC shares was set at fair market value, Mr. Grizzle’s conclusion that the terms of the Modified 1981 Agreement are comparable to similar agreements entered into by parties at arm’s length is unsupportable.” (emphasis added) Finding comparable buy-sell agreements (which are inherently very private documents) could be very difficult. Furthermore, the court wants evidence that the terms are similar to agreements in the general practice of unrelated parties, and not just isolated comparables. This would seem to be a very difficult evidence burden that the court is imposing. The court found that the comparability test was not met in this situation, where the agreement provided a set price of $4 million compared to a book value (which was the formula price under a prior agreement) of $7.5 million. The price would not be adjusted over time by a formula. The Eleventh Circuit found no error with the lower’s analysis of the comparability factor.
Another court similarly refused to accept affidavits of attorneys that the court viewed as being merely conclusory in nature. Smith v. Commissioner, 94 AFTR 2d 5283 (W.D. Pa. 2004). The court suggested a high standard of proof to satisfy the comparability test:
“In this case, both parties concede that it would be inherently difficult to find an agreement between unrelated parties dealing at arms' length that would be comparable to a family limited partnership, which, by its terms, is restricted to related parties.... Nevertheless, Plaintiffs have submitted the affidavits of two attorneys...who essentially state that restrictive provisions requiring installment payments and charging interest at the applicable federal rate are common in both family limited partnerships and transactions involving unrelated parties.... Upon review, these affidavits merely state opinions that are conclusory in nature and do not constitute evidence sufficient to dispel any genuine issue of material fact as to whether of the restrictive provision in the Smith FLP agreement meet the test set forth in Section 2703(b)(3).”
11. Comparability Test; Novel Theory. The court did not address the novel theory of the IRS that the transfer restrictions did not meet the comparability test because no arm’s length third person would enter the arrangement at all (to tie up an investment for 50 years in a partnership holding one publicly traded stock presenting nothing particularly special to justify such a restrictive investment). The IRS expert testified that the specific transfer restrictions themselves were very commonly used in arm’s length arrangements but “that was beside the point.” The IRS argued that there an “overall circumstances” test that should be applied, rather than just looking to whether particular restrictions themselves are commonly used. The court declined to address that novel theory. However, it is one that is likely to re-appear in future cases.
12. Refusing to Recognize FLP Transfer Restrictions Under §2703 May Have Little Impact on Value. The court held that transfer restrictions could not be considered in valuing the gifts of LP units, because of § 2703. The transfer restrictions in the agreement added several elements that are not present under state law. The agreement purported to prohibit transfers absolutely without consent of the other partners, rather than just requiring consent of the partners to recognize a successor owner as a full partner rather than just as an “assignee.” Also, the agreement added that the partnership could elect to purchase at fair market value (i.e., the discounted value) an interest that is impermissibly transferred.
The court obviously did allow appraisers to consider the other restrictions on the rights of limited partners under general state law principles, in light of the fact that the court found that significant lack of control and lack of marketability discounts applied. The opinion nowhere suggested what kind of value adjustment would be attributable to the prohibition on transfers under paragraph 9.1 of the agreement. However, as to the repurchase option under paragraph 9.3, the IRS expert believed that the restriction would have no impact at all on value. The taxpayer’s expert believed that considering the paragraph 9.3 provision would reduce the value by about 2.4%. (For example, Appendix B reflects that, for the big gift made in 1999, the value would be $1,096,360 if paragraph 9.3 is considered and $1,123,769 if it is not considered. The percentage difference is 27,409/1,123,769, or 2.4%)
Of course, a determination that the price set in a buy-sell agreement would not be respected under § 2703 can have a huge impact on value. But just ignoring specific transfer restrictions in a limited partnership agreement may have limited significance.
13. Determine Marketability Discounts Based on Limited Market for “Assignee” Interests. Several prior cases have had an extended discussion of whether to value transferred interests as mere assignee interests or as full limited partnership interests. Astleford, Estate of Dailey, Kerr, and Estate of Jones all valued the transfers as limited partnership interests, and Estate of Nowell valued the transferred interest as an assignee interest. The court did not address this issue, but interestingly made the following observation at the beginning of its discussion of the marketability discount:
“The parties agree that, to reflect the lack of a ready market for LP units (or, more pertinently, assignee interests in the partnership) ... an additional discount ... should be applied ...” (emphasis added).
If the marketability discount is determined based on the value of an assignee interest in any event, it would seem to make little valuation difference whether the transferred interest is viewed as a partnership interest or as an assignee interest.
14. Dropped Arguments. Dropped arguments may be very insightful as to what issues that the IRS is continuing to pursue in audits and litigation. The IRS originally argued that an interest in the partnership should be viewed as an interest in the trust. In addition, the IRS originally argued that liquidation restrictions in the agreement should be ignored under § 2704(b). The IRS subsequently dropped both of those arguments.
Copyright © 2008 Bessemer Trust Company, N.A. All rights reserved.