Thursday, May 17, 2018

Valuation Discounting

Overview

In 2016, the IRS issued new I.R.C. §2704 proposed regulations that could have seriously impacted the ability to generate valuation discounts associated with the transfer of family-owned entities. The effective date of the proposed regulation reached back to include valuations associated with any lapse of any right created on or after October 8, 1990 occurring on or after the date the proposed regulation was published in the Federal Register as a final regulation. This would have made it nearly impossible to avoid the application of the final regulation by various estate planning techniques.

With the election of President Trump and his subsequent instruction to federal agencies to eliminate unnecessary regulation, the Treasury announced the withdrawal of the I.R.C. §2704 proposed regulations in 2017. That means that valuation discounting as a planning tool is now back in the planner’s toolbox.

Today’s post is part one in a two-part series on valuation discounting in the context of a family limited partnership (FLP) and how the concept can be used properly, as well as the potential pitfalls. Today I look at the basics of valuation discounts and their use in the FLP context. In part two next week, I will examine some recent cases where the IRS has challenged the use of discounting and discuss what can be learned from the cases to properly structure FLPs and obtain valuation discounts.

Valuation Discounting – Interests in Family Limited Partnerships

While discounting can apply to interests in corporations, one of the most common vehicles for discounting is the family limited partnership (FLP). The principal objective of an FLP is to carry on a closely-held business where management and control are important. FLPs have non-tax advantages, but a significant tax advantage is the transfer of present value as well as future appreciation with reduced transfer tax. See, e.g., Estate of Kelley v. Comr., T.C. Memo, 2005-235. Discounts from fair market value in the range of 30-45 percent (combined) are common for minority interests and lack of marketability in closely-held entities. See Estate of Watts, T.C. Memo. 1985-595

Commonly in many family businesses, the parents contribute most of the partnership assets in exchange for general and limited partnership interests. The nature of the partnership interest and whether the transfer creates an assignee interest (an interest where giving the holder the right to income from the interest, but not ownership of the interest) with the assignee becoming a partner only upon the consent of the other partners, as well as state law and provisions in the partnership agreement that restrict liquidation and transfer of the partnership interest can result in discounts from the underlying partnership asset value.

In a typical scenario, the parents that own a family business establish an FLP with the interest of the general partnership totaling 10% of the company's value and the limited partnership's interest totaling 90%. Each year, both parents give each child limited-partnership shares with a market value not to exceed the gift tax annual exclusion amount. In this way, the parents progressively transfer business ownership to their children consistent with the present interest annual exclusion for gift tax purposes, and significantly lessen or eliminate estate taxes at death. Even if the limited partners (children) together own 99% of the company, the general partner (parents) will retain all control and the general partner is the only partnership interest with unlimited liability.

IRS has successfully limited or eliminated valuation discounts upon a finding of certain factors, such as formation shortly before death where the sole purpose for formation was to avoid estate tax or depress asset values with nothing of substance changed as a result of the formation. But, while an FLP formed without a business purpose may be ignored for income tax purposes, lack of business purpose should not prevent an FLP from being given effect for transfer tax purposes, thereby producing valuation discounts if it is formed in accordance with state law and the entity structure is respected.
Also, when an interest in a corporation or partnership is transferred to a family member, and the transferor and family members hold, immediately before the transfer, control of the entity any applicable restrictions (such as a restriction on liquidating the entity that the transferor and family members can collectively remove) are disregarded in valuing the transferred interest.

While the technical aspects of the various tax code provisions governing discounts are important and must be satisfied, the more basic planning aspects that establish the tax benefits of an FLP must not be overlooked:

• The parties must follow all requirements set forth in state law and the partnership agreement in all actions taken with respect to the partnership;

• The general partner must retain only those rights and powers normally associated with a general partnership interest under state law (no extraordinary powers);

• The partnership must hold only business or investment assets, and not assets for the personal use of the general partner, and;

• The general partner must report all partnership actions to the limited partners; and

• The limited partners must act to assure that the general partners do not exercise broader authorities over partnership affairs than those granted under state law and the partnership agreement.

FLPs and the IRC §2036 Problem

Clearly, the most litigated issue involving valuation discounting in the context of an FLP is whether assets contributed to an FLP/LLC should be included in the estate under §2036 (without a discount regarding restrictions applicable to the limited partnership interest). I.R.C. § 2036(a)(1) provides that a decedent’s gross estate includes the value of property previously transferred by the decedent if the decedent retained the possession or enjoyment of, or the right to the income from, the transferred property. I.R.C. §2036(a)(2) includes in the gross estate property previously transferred by the decedent if the decedent retained the right, either alone or in conjunction with any person, to designate the persons who are to possess or enjoy the transferred property or its income. However, an exception to the inclusion rules exists for transfers made pursuant to a bona fide sale for an adequate and full consideration in money or money’s worth.

Conclusion

About 40 cases have been decided at the appellate level involving I.R.C. §2036. Many of these have involved taxpayer losses. Part two next week will look at some of the most instructive cases involving I.R.C. §2036 and what planning pointers can be gleaned from those court decisions.

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