Sunday, May 16, 2021
Last week, the U.S. Tax Court, in Morrissette v. Comr., T.C. Memo. 2021-60, decided a case involving an intergenerational transfer of a closely-held family business and the “split-dollar” life insurance technique. There are some good “take-home” points from the case that show how the use of the technique can work in a complicated estate plan involving a family business where the intent is to keep the business in the family for multiple generations.
Estate Planning with the split-dollar life insurance technique – it’s the topic of today’s post.
Split-Dollar (In General)
In general, a split-dollar life insurance plans exists when two persons enter into an agreement to share both the premiums due and the proceeds receivable on a whole life policy. See, e.g., Treas. Reg. 1.61-22(B)(1). This is usually accomplished is by an employer entity splitting premiums and proceeds with an employee. The employee either pays premiums for his portion (via a loan from the employer) based on the one-year cost of term insurance or pays income tax on the employer’s payment of such amount. See Rev. Rul. 64-328, 1964-2 C.B. 11. The advantage is that the employee is responsible for only the cost of pure life insurance protection. That cost is either determined by the PS58 Cost Table that is published in Rev. Rul. 55-747, 1955-2 C.B. 228, or if it is less, by the insurance company’s premium tables for one-year term insurance of standard risks. Rev. Rul. 66-110, 1966-1 C.B. 12. Often, the employee has the option to continue the policy when the agreement terminates. If the employee dies, the named beneficiary receives a tax-advantaged death benefit.
The split-dollar technique is sometimes used by large estates in an attempt to minimize taxes at death, often in conjunction with an irrevocable life insurance trust (ILIT). It can also be used as a funding mechanism for a buy-sell agreement in a closely-held family business where the goal is to maintain family ownership of the business over multiple generations. But split-dollar arrangements are heavily regulated and specific rules must be followed precisely.
The Morrissette Estate Plan
Arthur Morrissette founded International Moving Company (Interstate Van Lines) in 1943. He and his wife established revocable trusts in 1994 and funded the trusts, at least in part, with company stock. The trusts directed that the company stock pass to qualified subchapter S trusts (QSSTs) for the benefit of their sons, and then to trusts for the benefit of their grandchildren.
After Arthur’s death, his surviving spouse established a plan to secure the funds to pay the estate taxes imposed on the stock passing via the QSST trusts to her sons and grandchildren. She first created three” dynasty” insurance trusts (irrevocable life insurance trusts (ILITs)) – one for each of her sons and their families. The ILITs and the sons entered into shareholder agreements which set forth arrangements whereby the ILITs would purchase the stock held by a son’s QSST upon the son’s death. To fund the buyouts, each ILIT secured a life insurance policy on the lives of the two other sons via a cross-purchase buy-sell arrangement. Ultimately, the three ILITs purchased a total of six policies.
The surviving spouse arranged to pay all the premiums for the policies in lump sums out of her revocable trust. The lump-sum amounts that she advanced to pay premiums on the policies were designed to be sufficient to maintain the policies for her sons' projected life expectancies (which at the time ranged from approximately 15 to 19 years). The ILITs would ultimately acquire the stock of QSST trusts for the benefit of her grandchildren and subsequent generations, and were designed to not be subject to federal estate tax.
The surviving spouse advanced approximately $29.9 million to make lump sum premium payments on policies insuring the lives of her three sons. The financing for these life insurance policies was structured as “split-dollar arrangements,” meaning that the cost and benefits would be split between the trusts. When she paid a lump sum amount to cover the premiums on the policies, the policies themselves were designed to pay out varying amounts to the trusts for both herself and her sons.
Specifically, upon the death of each of her sons, her revocable trust would receive (attributable to her “split-dollar receivables”) the greater of either (i) the cash surrender value of that policy, or (ii) the aggregate premium payments on that policy. Each ILIT would receive the balance of the policy death benefit. Such arrangements are commonly structured so that the company advances funds to an ILIT to pay premiums on insurance on the life of the owner of the company, and the split-dollar receivable is payable upon the death of that owner. However, the surviving spouse’s plan was structured such that the receivable wasn’t payable until the death of one of the sons. Also, the company did not own the split-dollar receivable and it would become an asset of her taxable estate. Given her sons’ life expectancies, the estate was not likely to collect the amounts payable with respect to the split-dollar receivables for 15 to 19 years.
From 2006 until her death in 2009, the surviving spouse made (and reported) gifts to the ILITs out of her revocable trust based upon the cost of the current life insurance protection in accordance with the IRS tables corresponding to the “economic benefit regime.” The total amount of the gifts was $29.9 million, but the economic benefit of the gifts was far less than that. Accordingly, the surviving spouse reported the payment of the premiums as gifts to her sons for gift tax purposes to the extent of the economic benefit specified by Treas. Reg. §1.61-22.
IRS gift tax challenge.
The IRS issued two Notices of Deficiency to the estate. One Notice determined a gift tax liability for the tax year ending December 31, 2006, which concluded the surviving spouse’s estate had failed to report total gifts in the amount that the surviving spouse’s revocable trust advanced to the ILITs to make lump-sum payments of policy premiums. The second Notice grossed-up the surviving spouse’s lifetime gifts by the $29.9 million gifted to the ILITs.
The surviving spouse’s estate moved for partial summary judgment on the threshold legal question of whether the split-dollar arrangements should be governed under the economic benefit regime of Treas. Reg. §1.61-22. If so, the surviving spouse didn’t make any significant gift in 2006, and the total value reported for the split-dollar receivables should be based on the present value of the right to collect the split-dollar receivables in 15 to 19 years. The IRS asserted that it was factually unclear as to whether or not the revocable trust had conferred upon the ILITs an economic benefit in addition to the current cost of life insurance protection. The IRS claimed that the revocable trust’s lump-sum premium payments should be treated as loans owed back to the estate and valued under Treasury Regulations finalized in 2003 concerning how to treat split-dollar arrangements for tax purposes. See Rev. Rul. 2003-105, 2003-2 C.B. 696. The issue was, in essence, whether the 2003 regulations controlled the outcome, or whether the economic benefit regulation controlled.
Ultimately, the Tax Court disagreed with the IRS position. Estate of Morrissette, 146 T.C. 171 (2016). The Tax Court held that the split-dollar agreements complied with the economic benefit regulation of Treas. Reg. § 1.61-(1)(ii)(A)(2), and that the surviving spouse made annual gifts only of the cost of current protection for gift tax purposes. Under the regulation, only the economic benefit provided under the split-dollar life insurance arrangement to the donee is current life insurance protection. As such, the donor is deemed owner of the life insurance contract, irrespective of actual policy ownership, and the economic benefit regime applies. Thus, to determine if any additional economic benefit was conferred by the revocable trust to the ILITs, the Tax Court considered whether or not “the dynasty trusts [ILITs] had current access to the cash values of their respective policies under the split-dollar life insurance arrangements or whether any other economic benefit was provided.” Because the split-dollar arrangements were carefully structured to only pay the ILITs that portion of the death benefit of the policy in excess of the receivables payable to the revocable trust, the Tax Court concluded that the ILITs could not have any current access under the final regulations. The Tax Court also determined that no additional economic benefit was conferred by the revocable trust to the dynasty trusts. The valuation of the receivables at $7.48 represented an approximate 77 percent valuation discount from the value of the amount advanced to pay the premiums.
IRS estate tax challenge. The surviving spouse’s estate valued the receivables at $7.48 million. The IRS disagreed with the estate’s valuation, claiming instead that the transfer of $29.9 million made by her revocable trust should be included in her estate at death by virtue of I.R.C. §2036 and I.R.C. §2038. The Tax Court did not agree with the IRS position, determining that the transfers had valid non-tax purposes. The evidence showed that the decedent desired to keep the business in the family, needed liquidity for estate tax purposes, and also wanted to provide a transition of the business to the next generation of the family while maintaining family harmony. As such, the Tax Court concluded, the cash surrender value of the policies was not pulled back into the estate at death. The Tax Court also held that I.R.C. §2703 did not apply because the split-dollar agreements served a business purpose and were not simply a manner in which to transfer property for less than full and adequate consideration. They were also comparable to arm’s length transactions. However, the court held that the estate was liable for the 40 percent understatement penalty of I.R.C. §6662 because of an undervaluation of the decedent’s split-dollar rights to the life insurance policies.
The Tax Court did not determine the estate’s federal estate tax value, but directed the parties to value of the rights associated with the split dollar arrangements based on cash surrender values, life expectancies and discount rates. The Tax Court said that the split-dollar rights are the rights of the decedent’s trust to payment in exchange for paying the policy premiums. That payment, the Tax Court said, is either the amount of premiums paid or the cash surrender values of the policies, whichever is greater.
The Tax Court’s 2016 decision is very helpful to high-net-worth individuals and owners of closely held businesses. Similarly structured split-dollar arrangements will be governed by the economic benefit doctrine and protect from gift tax liability. The result will be that the value of the split-dollar receivables would be determined based on typical valuation principles (i.e., the amount a third party would pay to purchase the split-dollar receivables).
Last week’s Tax Court decision that I.R.C. §2703(a) does not apply to the split-dollar receivables, because they were not subject to any restriction on the revocable trust’s rights to sell or use them opens the door to intergenerational split-dollar arrangements.
These two Tax Court opinions, taken together, provide a blueprint for passing family assets (like closely held businesses such as a farm or ranch) throughout subsequent generations, with predictable (and favorable) estate and gift tax consequences for the original owners. That is particularly important in light of the unfavorable changes the present Congress might make to the laws governing the transfer tax system.