Is A Discount For The BIG Tax Available?

Overview

Through 2016, the U.S. Treasury Department was pushing for the elimination of valuation discounts for federal estate and gift tax purposes.  However, as part of the elimination of “non-essential” regulations under the Trump Administration, the Treasury announced in 2017 that it would no longer push for the removal of valuation discounts to value minority interests in entities or for interests that aren’t marketable.  That means that the concept of valuation discounting is back in vogue – for those that need it.  Of course, with the increase in the federal estate and gift tax applicable exclusion amount to $11.4 million (for deaths occurring and gifts made in 2019), the practice of valuation discounting is only used in select instances.

But, one area in which valuation discounting remains rather prominent is in the context of entity valuation when built-in gain (BIG) tax is involved.   Can a discount be claimed for BIG tax?  If so, what’s the extent of the discount?  These are the topics of today’s post.

Illustration of the problem

Assume that Sam is interested in buying a tract of real estate. Sam finds two identical tracts – tract “A” and tract “B.” Sid owns tract A outright, and tract B is owned by a C corporation. Both tracts are worth $2 million and each have a cost basis of $200,000. If Sam buys tract A from Sid for $2 million and sells it five years later for $4 million, the capital gain triggered upon sale will be $2 million and the resulting tax (assuming a 20 percent effective capital gain tax rate) will be $400,000.  So, the result is that Sam invested $2 million and five years later received $3.6 million when he “cashed-in” his investment.

However, if Sid owns tract B inside of a C corporation and Sam were to pay $2 million to buy 100 percent of the C corporate stock, he would receive the corporation’s stock with the land at the low $200,000 basis. Thus, upon sale of the land five years later for $4,000,000, the capital gain inside the corporation is $3.8 million).  Based on a hypothetical capital gain tax rate of 20 percent, the capital gains tax liability inside the corporation is $760,000. This leaves $3,240,000 left to distribute from the corporation to Sam. Assuming Sam’s basis in the corporate stock is $2,000,000 (the amount he originally paid for the stock), Sam has additional capital gain at the shareholder level of $1,240,000.  Assuming a capital gain tax rate of 20 percent, Sam must pay an additional $248,000 in capital gain tax at the shareholder level. So, the total tax bill to Sam is $1,008,000.  The result is that Sam received $2,992,000 when he cashed his investment in five year later. 

So, in theory, would Sam pay the same amount Sam for tract “A” as he would for tract “B”?  The answer is “no.”  Sam would pay an amount less than fair market value to reflect the BIG tax he would have to pay to own tract “B” outright and not in the C corporate structure.  That’s the basis for the discount for the BIG tax – to reflect the fact that the taxpayer in Sam’s position would not pay full fair market value for the asset.  Rather, a discount from fair market value would be required to reflect the BIG tax that would have to be paid to acquire the asset outright and not in the C corporate structure.

BIG Tax Discount - The IRS and the Courts

IRS position and early cases.  The IRS maintained successfully (until 1998) that no discount for BIG tax should apply, but the courts have disagreed with that view.  That all changed in 1998 when the Tax Court decided Estate of Davis v. Comr., 110 T.C. 530 (1998) and the U.S. Court of Appeals for the Second Circuit decided Eisenberg v. Comr., 155 F.3d 50 (1998).  In those cases, the court held that, in determining the value of stock in a closely held corporation, the impact of the BIG tax could be considered.  In Eisenberg, the appellate court directed the Tax Court (on remand) that some reduction in value to account for the BIG tax was appropriate.  Ultimately, the Tax Court did not get to decide the amount of the discount, because the case settled.  The IRS acquiesced in the Second Circuit’s opinion and treats the applicability of the discount for BIG tax as a factual matter to be determined by experts using generally applicable valuation principles.   A.O.D. 1999-001 (Jan. 29, 1999).   

The level of the discount.  Initially, the courts focused on the level of the discount. But, in 2007, the United States Court of Appeals for the Eleventh Circuit in Estate of Jelke III v. Comr., 507 F.3d 1317(11th Cir. 2007), held that in determining the estate tax value of holding company stock, the company's value is to be reduced by the entire built-in capital gain as of the date of death.  In 2009, the U.S. Tax Court followed suit and essentially allowed a full dollar-for-dollar discount in a case involving a C corporation with marketable securities. Estate of Litchfield v. Comr., T.C. Memo. 2009-21.  In 2010, the Tax Court again allowed a full dollar-for-dollar discount for BIG tax in Estate of Jensen v. Comr., T.C. Memo. 2010-182.

The Tax Court, in 2014, held that a BIG tax discount was allowable.  Estate of Richmond v. Comr., T.C. Memo. 2014-26.  Ultimately, the Tax Court determined that the BIG tax discount was 43 percent of the tax liability (agreeing with the IRS) rather than a full dollar-for-dollar discount, but only because the potential buyer could defer the BIG tax by selling the securities at issue over time.  That meant, therefore, that the BIG tax discount was to be calculated in accordance with the present value of paying the BIG tax over several years.

Implications for Divorce Cases

While the rulings in Jelke III, Litchfield and Jensen are important ones for estate tax valuation cases, they may not have a great amount of practical application given that very few estates are subject to federal estate tax, and of those that are taxable, only a few involve a determination of the impact of BIG tax on valuation.  However, the impact of BIG tax in equitable distribution settings involving divorce may have much greater practical application.  Many states utilize the principles of equitable distribution in divorce cases. Under such principles, the court may distribute any assets of either the husband or wife in a just and reasonable manner. Any factor necessary to do equity and justice between the parties is to be considered. Technically, the tax consequences to each spouse are to be considered. However, the amount (or even the allowance) of a discount for built-in capital gains tax is not well settled.

In divorce settings, courts tend to be reluctant to deduct potential tax liability from the distribution of the underlying assets.  For example, a Pennsylvania court, in a 1995 opinion, refused to deduct the potential tax liability associated with the distribution of defined benefit pension plans. Smith v. Smith, 439 Pa. Super. 283, 653 A.2d 1259 (1995).  The court held that potential tax liability could be considered in valuing marital assets only where a taxable event has occurred or is certain to occur within a time frame such that the tax liability can be reasonably predicted. The North Carolina Court of Appeals has ruled likewise in Weaver v. Weaver, 72 N.C. App. 409 (1985), as have courts in New Jersey (see, e.g., Stern v. Stern, 331 A.2d 257 (N.J. 1975); Orgler v. Orgler, 237 N.J. Super. 342, 568 A.2d 67 (1989); Goldman v. Goldman, 275 N.J. Super. 452, 646 A.2d 504 (1994), cert. den., 139 N.J. 185, 652 A.2d 173 (1994)), Delaware (Book v. Book, No. CK88-4647, 1990 Del. Fam Ct. LEXIS 96 (1990)), West Virginia Hudson v. Hudson, 399 S.E.2d 913 (W. Va. 1990); Bettinger v. Bettinger, 396 S.E.2d 709 (W. Va. 1990)) and South Dakota (See, e.g., Kelley v. Kirk, 391 N.W.2d 652 (1986)).  But, the Oregon Court of Appeals, has indicated that a reduction for taxes should be allowed in divorce cases subject to equitable distribution rules.  In re Marriage of Drews, 153 Ore. App. 126, 956 P.2d 246 (1998).

Conclusion

The courts have largely dismissed the IRS view that generally opposed a BIG tax discount.  It’s simply not the way that buyers operate in actual transactions.  In any event, when a discount for BIG tax is sought, hiring a tax expert and a valuation expert can go along way to establishing a full dollar-for-dollar discount for the BIG tax.