Dr. Wallace Wrightwood: “You’ve apparent hundreds, bags of pigeons, right?”George Henderson: “Of course.”Dr. Wallace Wrightwood: “Have you anytime apparent a babyish pigeon? Well neither accept I. I got a anticipation they exist.”[i]
When was the aftermost time you pored over a judge’s assay of the bona fides of a ancestors apprenticed affiliation (“FLP”), or advised a court’s Solomon-like judgement apropos the fair bazaar bulk of an absorption in a FLP? [ii]
It acclimated to be that such decisions were de rigeur in the apple of acreage and allowance tax planning for family-owned business and advance entities, and planners would delay breathlessly for the aftereffect of the aing abstruse assessment and the administration it would provide.
Then the federal alteration tax absolution began its acutely adamant climb, which spawned an absorption in how to best advantage the added absolution bulk and aish still added of a family’s abundance from the alteration tax system.
Of course, there was a bang in 2016, with the arising of proposed regulations that abounding believed would, if finalized, mark the end of the appraisal discounts that fabricated the use of FLPs, and the alteration of interests in family-owned businesses generally, so adorable as a allowance planning tool. [iii]
The presidential acclamation after-effects assured the IRS’s authoritative efforts to catch bottomward on the corruption of FLPs, and the “temporary” mega-increase of the federal exemption, alpha with 2018, gave abounding taxpayers a adequate “margin of error” for any appraisal missteps. [iv]
Notwithstanding the almost “favorable” ambiance for allowance and acreage tax planning in which we acquisition ourselves, it will still behoove taxpayers and their admiral to accept attuned to the factors on which the IRS and the courts accept historically focused in their analyses of FLPs and the alteration of interests in family-owned businesses, some of which were accent in a contempo Tax Court decision. https://www.ustaxcourt.gov/ustcinop/OpinionViewer.aspx?ID=11800 [v]
“I’ll Take Care of Everything, Dad”
Decedent, acting through his attorney-in-fact [vi] (his daughter, “Daughter”), formed FLP as a apprenticed partnership. The affiliation acceding (the “Agreement”) declared that FLP’s purpose was to “provide a agency for [D]ecedent’s ancestors to administer and bottle ancestors assets.” Decedent adjourned FLP primarily with bankable securities, borough bonds, alternate funds, and cash. Its portfolio was managed by able money managers. FLP never captivated any meetings.
F-LLC was FLP’s sole accustomed accomplice (“GP”). Babe was administrator of F-LLC. The Acceding provided that the GP “shall accomplish or account to be performed * * * the barter or business of the Partnership,” accountable alone to limitations set alternating especially in the Agreement.
Decedent and his accouchement were FLP’s aboriginal apprenticed ally (“LPs”) beneath the Agreement. The LPs, added than Decedent, accustomed their LP interests as gifts. Decedent appear these ability on a federal allowance tax acknowledgment (IRS Anatomy 709).
AgreementThe Acceding provided that FLP would aish in 2075, unless assured sooner; for example, aloft the abatement of the GP. The LPs could aish the GP by accounting acceding of the LPs owning 75% or added of the affiliation interests captivated by all LPs. If the affiliation assured by acumen of the GP’s removal, again 75% of the LPs could reconstitute the affiliation and accept a almsman GP. LPs owning at atomic 75% of the buying allotment in FLP could accept the acceptance of added LPs to the partnership.
The Acceding provided that an LP could not advertise or accredit an absorption in FLP afterwards accepting the accounting approval of the GP, which the Acceding provided would not be foolishly withheld. Any accomplice who assigned their absorption remained accountable to the affiliation for promised contributions or boundless distributions unless and until the abettor was accustomed as a commissioned LP. The GP could accept to amusement an abettor as a commissioned LP in the abode of the assignor. An assignor was accounted to accept to authority the assigned absorption for the purposes of any vote taken by LPs beneath the Acceding until the abettor was accustomed as a commissioned LP.
All transfers of interests in FLP were accountable to limitations. Ally were accustomed to accomplish alone acceptable transfers of their interests. “Permitted transfers” were transfers (1) to any affiliate of the transferor’s family, (2) to the transferor’s executor, trustee, or claimed adumbrative to whom his or her absorption would canyon at afterlife or by operation of law, or (3) to any purchaser, but accountable to the appropriate of aboriginal abnegation captivated by the assertive partners.
Any accomplice who accustomed an alfresco acquirement action for their absorption was required, afore accepting the offer, to accommodate anniversary of the “priority family”, the partnership, and the accustomed accomplice an befalling to access the interest. Whether FLP acclimatized its appropriate of aboriginal abnegation to acquirement a partner’s absorption was accountable to the approval of the GP and the LPs owning at atomic 50% of FLP’s interests captivated by all LPs (with the barring of the agent if they were an LP).
The Acceding referred to bodies who acquired interests in FLP, but who were not accustomed as commissioned LPs, as “assignees”. Such “assignees” were advantaged alone to allocations and distributions in account of their acquired interests. “Assignees” had no appropriate to any advice or accounting of the diplomacy of FLP, were not advantaged to audit its books or records, and did not accept any of the rights of a accomplice beneath accompaniment law.
The Acceding provided that a transferee of an absorption in FLP could become a commissioned LP aloft acceptable the afterward conditions: (1) the GP consented; (2) the transferee was a acceptable transferee; and (3) the transferee became a affair to the Acceding as an LP. The Acceding provided that an absorption holder who was accustomed to FLP as a commissioned LP would be advised the aforementioned as an aboriginal LP beneath the acceding of the Agreement.
On the aforementioned day that Decedent formed FLP, he accustomed a capricious assurance (the “Trust”), and additionally transferred his 88.99% LP absorption in FLP to Trust. Decedent captivated the ability during his activity to amend, alter, revoke, or aish Trust. He was its sole beneficiary, and Babe was the trustee. Decedent was advantaged to accept distributions of assurance assets and could accept distributions of assurance arch aloft his request.
Decedent, through Daughter, accomplished an acceding (the “Assignment”), which appointed Decedent as “assignor” and the Assurance as “assignee”. The Assignment provided that Decedent assigned all of his LP interests in FLP, and that the Trust, “by signing this [Assignment], hereby agrees to accept by all the acceding and accoutrement in that assertive [Agreement] of [FLP].”
Decedent’s alteration of his absorption was a acceptable alteration beneath the Agreement. Babe active the Assignment in her capacities as Decedent’s attorney-in-fact, as trustee of the Trust, and as managing affiliate of F-LLC.
Estate Tax Acknowledgment Afterward Decedent’s death, [vii] his acreage (the “Estate”) filed a federal acreage tax acknowledgment (IRS Anatomy 706). The Acreage appear on the acreage tax acknowledgment that Decedent had fabricated capricious transfers during his lifetime. It articular on the acreage tax acknowledgment the transfers of Decedent’s LP interests to the Trust. [viii]
The Acreage declared the acreage transferred to the Assurance as an “assignee interest” in an 88.99% LP interest. The Acreage appear the bulk of the transferred absorption on the tax return; in a added statement, the Acreage adumbrated that it claimed discounts for “lack of marketability, abridgement of control, and abridgement of liquidity.”
The IRS issued a apprehension of absence asserting an acreage tax deficiency. The absorbed Forms 886-A set alternating the IRS’s assurance that the adapted bulk of decedent’s absorption in FLP was greater than that appear by the Estate.
The Acreage petitioned the Tax Court.
The Court’s ApproachThe Court acclaimed amid the attributes of the acreage absorption transferred to the Assurance (a acknowledged issue) and the fair bazaar bulk (“FMV”) of such absorption (a catechism of fact). The parties, the Court stated, disagreed as to the blazon of absorption that had to be admired in Decedent’s gross estate.
The Acreage claimed that the Assignment created an abettor absorption in Decedent’s LP absorption beneath the Agreement. It admired Decedent’s absorption in the Assurance as an abettor interest.
The IRS asserted that the Assignment did not actualize an abettor absorption captivated by the Trust. The IRS argued that Decedent transferred his 88.99% LP absorption to the Assurance and the bulk to be included in the gross acreage should be that of an LP interest.
Thus, the Court had to actuate whether the absorption Decedent transferred to the Assurance was an LP absorption or an abettor interest.
Generally, accompaniment law determines the attributes of the acreage absorption that has been transferred for federal acreage tax purposes. [x] The Court explained that, beneath applicative accompaniment law, a affiliation absorption was assignable unless the affiliation acceding provided otherwise. An abettor of a affiliation absorption was advantaged to accept allocations of income, gain, loss, deduction, credit, or agnate items, and to accept distributions to which the assignor was entitled, but was not advantaged “to exercise rights or admiral of a partner”. The abettor may become a partner, with all rights and admiral of a accomplice beneath a affiliation agreement, if accustomed in the address that the acceding provided.
The Court emphasized, however, that the federal tax aftereffect of a accurate transaction was absolute by the actuality of the transaction rather than its form. “The article that the actuality of a transaction will abound over its form,” the Court stated, “indicates a alertness to attending aloft the formalities of intra-family affiliation transfers to actuate what, in substance, was transferred.”
With that, the Court advised both the anatomy and the actuality of Decedent’s alteration to the Assurance to actuate whether the acreage absorption transferred was an abettor absorption or an LP interest.
The Court’s AnalysisThe Acceding accustomed the alteration of LP interests, and for the acceptance of a transferee as a commissioned LP, provided assertive altitude were met. [xi]
The Acreage arguable that these altitude were never met with account to the absorption that Decedent transferred to the Assurance and that, aloft the beheading of the Assignment, the Assurance accustomed alone an abettor absorption in Decedent’s 88.99% LP interest.
The Court empiric that, although the alteration was labeled an “assignment,” the Assignment declared that the Assurance was advantaged to all rights associated with the buying of Decedent’s 88.99% LP interest, not aloof those of an assignee. All “rights and appurtenances” acceptance to Decedent’s interest, the Court continued, included the appropriate to vote as an LP and exercise assertive admiral as provided in the Agreement. The Assignment additionally appropriate that Decedent was apprenticed to accommodate any affidavit all-important “to accommodate * * * [the Trust] all the rights * * * [Decedent] may accept had” in the LP interest.
The Assignment, the Court added, annoyed all the altitude for the alteration of Decedent’s LP absorption and the acceptance of the Assurance as a commissioned LP. In adjustment for a transferee to be accustomed as a commissioned LP in account of a transferred absorption in FLP, (1) the GP had to accord to the transferee’s admission, (2) the alteration had to be a acceptable transfer, and (3) the transferee had to accede to be apprenticed by the acceding of the Agreement. Babe active the Assignment as administrator of FLP’s GP and consented to its terms, which provided for the alteration of all of Decedent’s rights in his LP absorption to the Trust. The alteration was a acceptable transfer. Lastly, the Assignment provided that the Assurance agreed to accept by all acceding and accoutrement of the Agreement, and Babe accomplished the Acceding on account of the Trust.
The Court assured that the anatomy of the Assignment accustomed that Decedent transferred to the Assurance an LP absorption and not an abettor interest.
What’s the Aberration Anyway? The bread-and-er realities basal the alteration of Decedent’s interest, the Court stated, accurate the cessation that the transferred absorption should be advised as an LP absorption for federal acreage tax purposes; behindhand of whether an abettor or an LP absorption had been transferred, there would accept been no abundant aberration afore and afterwards the alteration to the Trust.
Pursuant to the Agreement, alone the GP had the appropriate to absolute the FLP; neither LPs nor assignees had authoritative rights. The Acceding provided that assignees had no rights to any advice apropos FLP’s business or to analysis of its books or records.
However, according to the Court, this acumen fabricated no aberration in the present case because Babe was both a accomplice who was advantaged to advice apropos FLP (i.e., the administrator of the GP) and the trustee of the Trust.
The Acceding additionally provided that an “assignee” did not accept the appropriate to vote as an LP. However, this aberration was not cogent – whether the Assurance captivated the voting rights associated with an LP absorption was of no activated significance, the Court stated.
There were no votes by LPs afterward the beheading of the Assignment. Additionally, during his life, Decedent captivated the ability to abjure the alteration to the Trust. If he had revoked the transfer, he would accept captivated all the rights of an LP in FLP, including the appropriate to vote on affiliation matters. Also, F-LLC, as the GP, could accept advised the holder of an abettor absorption as a acting LP.
Therefore, beneath the facts and affairs of this case, the Court bent there was no aberration in actuality amid the alteration of an LP absorption in FLP and the alteration of an abettor absorption in that LP interest. Accordingly, as a bulk of both anatomy and substance, the absorption to be admired for acreage tax purposes was an 88.99% LP absorption in FLP, rather than an abettor interest. [xii]
Takeaway Bad facts, etc., but some may see a argent lining in the aftereffect of this case.
A aborigine who cannot act on his own; his attorney-in-fact/Daughter creates the affiliation and funds it with bankable balance and banknote on his behalf; she appoints herself as the administrator of the GP; she creates and funds the Assurance with best of the LP interests on his behalf, and appoints herself as trustee of the Trust. Sounds perfect.
Notwithstanding the foregoing, the Court admired the partnership; [xiii] in fact, it appears that the IRS did not alike claiming the partnership’s bona fides.
Query what business purpose the FLP had area it captivated alone bankable balance and banknote (all provided by Decedent), area its balance were managed by a able money manager, and area it never captivated any meetings. This was aloof a appraisal play.
Silver lining? Nope. Dodged one? Yep. A map to follow? Please don’t.———————————————————————————–i From “Harry and the Hendersons.” C’mon, don’t pretend you haven’t apparent it.ii Usually with a cooler for inspiration.iii https://www.taxlawforchb.com/2016/09/the-irs-takes-the-offensive-on-valuation-discounts-part-one/ ; https://www.taxlawforchb.com/2016/09/the-irs-takes-the-offensive-on-valuation-discounts-part-two/ ; https://www.taxlawforchb.com/2016/09/the-irs-takes-the-offensive-on-valuation-discounts-part-three/ .iv The absolution bulk had been set to access from $5.49 MM in 2017 to $5.62 MM in 2018. The Tax Cuts and Jobs Act angled the absolution to $11.2 MM for 2018, adapted for aggrandizement alpha in 2019, with a acknowledgment to the pre-2018 levels afterwards 2025. P.L. 115-97.v T.C. Memo. 2018-178.vi Anyone bethink Strangi?vii The 706 was filed August 2012. If this filing was timely, again the DOD was in November 2011. The FLP and Assurance were created in October 2008, three years earlier.viii IRC Sec. 2038; Schedule G to the Anatomy 706. Because the transfers were capricious by the Decedent – specifically, by his attorney-in-fact in this case – the acreage transferred was included in his gross acreage for tax purposes.ix You can’t accomplish this up.x See Commissioner v. Acreage of Bosch, 387 U.S. 456 (1967).xi See above.xii The Court again angry to the FMV of the Trust’s absorption in FLP. Based on its award that the absorption transferred was an 88.99% LP interest, the Court assured that the absorption did not abridgement control. Accordingly, no abatement for abridgement of ascendancy was allowed. The Court agreed with the Acreage that there should be a abatement for abridgement of marketability. However, because the Court assured that the absorption Decedent transferred was an LP interest, not an abettor interest, it begin the Estate’s abatement was too acceptable and accustomed the lower discounted activated by the IRS.xiii Yet it did, and additionally accustomed a abridgement of marketability abatement in free the FMV of the absorption captivated by the Trust. Go figure.
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