T.C. Memo. 1999-278
UNITED STATES TAX COURT
ESTATE OF JAMES WALDO HENDRICKSON, DECEASED,
MARK HART HENDRICKSON, EXECUTOR, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21225-97. Filed August 23, 1999.
Brett J. Miller and Megan J. Kight, for petitioner.
Russell D. Pinkerton, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
BEGHE, Judge: Respondent determined a deficiency in
petitioner's Federal estate tax of $2,465,624 and an accuracy-
related penalty of $477,113 for negligence under section
6662(b)(5).
- 2 -
Unless otherwise noted, all section references are to the
Internal Revenue Code in effect at decedent's death, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
After concessions, including respondent's concession of the
penalty, the sole issue for decision is whether, for purposes of
computing the gross estate of James Waldo Hendrickson (decedent),
the fair market value of 1,499 common shares of Peoples Trust and
Savings Bank of Boonville, Indiana (Peoples), was $4,497,000
($3,000 per share) as petitioner contends, $8,938,912 ($5,963.25
per share) as respondent contends, or some other amount. We hold
that the fair market value was $5,757,296 ($3,840.76 per share).
FINDINGS OF FACT
Decedent died testate on May 20, 1993 (the valuation date),
survived by his two sons: Mark Hart Hendrickson (Mark) and
Vinson Eric Hendrickson. Decedent and Mildred A. Hendrickson,
the mother of decedent's sons, had been divorced in 1986, after
more than 45 years of marriage.
When the petition was filed, Indiana was the residence and
principal place of business of Mark and Peoples, respectively,
the co-personal representatives of decedent's estate.1
1
Under Indiana law, the term "personal representative"
includes "executor". Ind. Code Ann. sec. 29-1-1-3 (Michie
Supp. 1998). In accordance with decedent's will, we use the
term "co-personal representative" exclusively in this case.
- 3 -
A. Peoples Trust and Savings Bank of Boonville, Indiana
Peoples is an independent bank chartered by the State of
Indiana. It was originally chartered in 1895 and has been in
continuous operation ever since. Peoples has only one office,
located in Boonville, Indiana, which has a population of
approximately 6,000. Boonville is the county seat of Warrick
County, Indiana, and is located near the southwest corner of the
State, approximately 14 miles east of Evansville, Indiana. The
primary customer base of Peoples is Warrick County, which does
not include Evansville. Warrick County is bordered on the west
by Vanderburgh County, and on the east by Spencer County.
Decedent's branch of the Hendrickson family has played the
leading role in the management of Peoples for more than 50 years.
James W. Hendrickson (J.W.), decedent's father, began working at
Peoples in 1939, while maintaining a law practice, and eventually
became its president. At his death in 1951, J.W. owned very few
shares of stock in Peoples; decedent, who inherited fewer than 10
shares of Peoples stock from J.W., thereupon took over as
president, and served as president for 40 years, until 1991, when
Mark took over as president. Like his father, decedent was a
practicing lawyer and maintained a solo probate practice during
the years he was employed by Peoples.
In 1957, while decedent was away on vacation, members of his
extended family attempted to gain control of Peoples. In order
to thwart the attempted hostile takeover, decedent borrowed money
- 4 -
from Old National Bank in Evansville (Old National) to finance
his acquisition of sufficient shares of Peoples stock to maintain
control. Although decedent acquired small blocks of Peoples
stock over the years, he made his major purchases in response to
the 1957 takeover attempt.
Mark began his employment with Peoples as a teller in June
1972, following his graduation from college, and was employed by
Peoples until his admission to law school in 1974. Following
graduation from law school in 1977, Mark returned part-time to
Peoples, assisting in the trust department, where he did legal
work and handled collection matters. In the mid-1980's, he
became a part-time trust officer, a position he maintained until
he became president in 1991, after decedent's health started to
deteriorate. After Mark became president, decedent assumed the
honorary title of Chief Executive Officer (CEO), which was not
provided for in the bylaws. Mark's relationship with decedent
became increasingly tense and difficult because of their
differences of opinion on how Peoples should be managed. While
decedent had managed Peoples very conservatively, Mark wanted to
adopt a more progressive approach that was favored by younger
employees of Peoples.
At the time of his death, decedent was CEO and a director of
Peoples and the owner of 1,499 shares of Peoples common stock
(the estate shares), representing 49.97 percent of the shares
outstanding.
- 5 -
B. Balance Sheet and Capitalization
As of March 31, 1993 (the reporting date), Peoples had
reported total assets of $90.7 million, total liabilities of
$70.8 million, and stockholder's equity of $19.9 million. On the
valuation date, the capital structure of Peoples included no
debt, other than deposits and other short-term liabilities.
1. Assets
As of the reporting date, Peoples' assets consisted
primarily of net loans of $29.9 million and marketable securities
of $54.3 million. Marketable securities thus represented
approximately 60 percent of Peoples' assets, while net loans
represented approximately 33 percent.
The bulk of Peoples' investment portfolio consisted of 5-
year treasury bonds that had been purchased in the high interest
rate environment of the late 1980's and early 1990's. As of May
1993, a substantial number of those bonds were scheduled to
mature in 12 to 24 months, subjecting Peoples to interest rate
risk in the lower interest rate environment prevailing at that
time.
2. Stock
a. Control
On the valuation date, there were 3,000 shares of Peoples
common stock outstanding. The two largest shareholders were
decedent (1,499 shares) and Mildred Hendrickson (610 shares).
- 6 -
Mark had 85 shares. The remaining shares were held by 29
shareholders, each of whom held at least 3 shares.
On the valuation date, the estate shares were 49.97 percent
of Peoples' outstanding shares, and no other shareholder held an
interest of similar size. Although the estate shares were
numerically a minority interest, they were a controlling interest
in substance. The estate shares had effective control of
Peoples, regardless of who owned them.2 There would be few
circumstances in which the estate shares would not determine the
outcome of any particular vote, because unless every other
shareholder voted against the estate shares, the estate shares
would always win. Thus, over time, the holder of the estate
shares would in all likelihood be able to determine all, or
substantially all, the members of Peoples' board of directors
(the board).3
2
Because every shareholder owned at least 3 shares, any
existing shareholder who acquired the estate shares would
automatically acquire actual control, because he or she
would acquire a majority interest (1,499 + 3 = 1,502/3,000).
3
The articles of incorporation of Peoples do not provide
for cumulative voting for directors. Although the Indiana
general corporate law permits the certificate of
incorporation to provide for cumulative voting for
directors, Ind. Code Ann. sec. 23-1-30-9(b) (Michie 1999),
the Indiana corporate law applicable to financial
institutions does not appear to permit cumulative voting.
See Ind. Code Ann. sec. 28-13-6-9 (Michie 1996).
- 7 -
b. Stock Transactions
There was no regular market for Peoples common stock, and
transfers were infrequent. On the valuation date, Peoples did
not have an employee stock ownership plan nor any history of
repurchasing shares. Within the 24 months before and after the
valuation date, there was only one arm's-length sale of Peoples
stock. In that transaction, which occurred after the decedent's
death, in 1994, Julia Raibley, assistant secretary of Peoples,
purchased 3 shares at $800 per share from the Stone estate. In
February 1990, after being named to the board, Victor Bowden
purchased 10 shares from the Toole Estate in order to comply with
the requirement in Peoples' bylaws that members of the board own
at least 10 shares of Peoples stock. Mr. Bowden purchased the
shares for $700 per share using funds he borrowed from decedent.
Also in February 1990, the Toole Estate sold 35 Peoples shares to
Mark for $700 per share.4
In June 1990, decedent transferred by gift 2 shares of
Peoples stock to Mark, reducing his interest in Peoples from
1,501 shares (50.03 percent) to 1,499 shares (49.97 percent).
The only reason given by decedent to Mark for the gift was to
"round off" Mark's holdings from 83 shares to 85 shares. Mark
4
The fair market value per share for Peoples stock reported
on the Form 706, United States Estate (and Generation-
Skipping Transfer) Tax Return, of the Ella Wright Estate in
1989 or 1990 was also $700.
- 8 -
and decedent had not previously discussed a control-breaking
transfer such as this one; some years earlier, when Mark had
suggested estate planning to decedent, decedent had not expressed
any interest.
Although there was no active market for Peoples shares,
after Mark became president he occasionally received informal
purchase inquiries from representatives of other banks in the
area. Peoples did not receive any purchase inquiries from
business brokers or investment banking firms.
There was not much of a market for Peoples stock, and shares
could not always be sold. For example, sometime prior to Mark's
becoming president of Peoples in August 1991, Mark and decedent
received telephone solicitation from a representative of
Hilliard-Lyons, a Louisville investment banking firm, about
purchasing shares from Charlotte Marsh. Mark and decedent both
declined. The same shares were still available for purchase in
1993 and again in 1996 or 1997, when Mark was personally
solicited by the son of Mrs. Marsh.
c. Dividend Payments
The board did not declare any dividends between 1984 and
1995. During this time period, Mrs. Hendrickson and her attorney
made a demand for dividend payments at an annual shareholders'
meeting. Mrs. Hendrickson had received her approximately 20-
percent interest in Peoples from decedent as part of her divorce
property settlement. The board apparently took no action on her
- 9 -
demand, as no dividends were paid until 1996, when the board
declared a $4 million dividend. In 1998, the board declared a
dividend of around $1.5 to $2 million.
d. Excess Capital
As a result of not having paid dividends, Peoples, on the
valuation date, was overcapitalized, as measured by the ratio of
book equity to total assets. On the reporting date and the
valuation date, Peoples had an equity-to-asset ratio of
approximately 22 percent; at that time, the average equity-to-
asset ratio for Midwestern banks and thrifts with assets less
than $150 million was between 7 and 9 percent. On the valuation
date and the reporting date, a 9-percent equity-to-assets ratio
would have been a reasonable level of capitalization for Peoples.
On the reporting date, Peoples had equity of $19,918,000, of
which $12,919,000 was excess capital.
C. Governance and Management
As of the valuation date, Peoples was still incorporated in
the State of Indiana and was subject to applicable Indiana
corporate and banking law.
1. Shareholder Approval
The articles of incorporation and bylaws of Peoples contain
no provisions concerning shareholder voting requirements for
mergers, acquisitions, sales of assets, or liquidation.
Accordingly, under Indiana corporate law, a plan of merger or
- 10 -
sale of substantially all the assets would have required the
approval of no more than a majority of the shares entitled to
vote. See Ind. Code Ann. sec. 23-1-40-3(e), 23-1-41-2(e) (Michie
1999); see also Ind. Code Ann. sec. 28-1-7-5 (Michie Supp.
1998).5
2. Board of Directors
On the valuation date, the board of directors comprised
eight individuals, the majority of whom were also employed by
Peoples. The bylaws of Peoples then in effect provided that two-
thirds of the board would constitute a quorum and prohibited the
transaction of any business without a quorum. The bylaws also
required all directors to own at least 10 shares of stock in
Peoples; thus, all the directors were shareholders. In addition
to decedent and Mark, the board included the following
individuals:
Name Position
Alan Bender Executive V.P., Senior Loan Officer
Alan Bennett Decedent's friend
Victor Bowden Decedent's godson
Florence Davis V.P., Trust Officer
John Farrell V.P., Loan and Security Officer
Richard Johnson Outside director
Most of the board members had been selected by the decedent
because of their longstanding, personal relationships with him,
rather than on account of any relevant expertise. Victor Bowden,
5
The provision for a vote of two-thirds of the outstanding
shares to approve a sale of assets by an Indiana financial
institution applies only to such institutions organized
after Dec. 31, 1992. See Ind. Code Ann. 28-1-8-4 (Michie
1996).
- 11 -
for example, was a young man whom decedent had supported much
like a foster child; John Farrell was a friend from military
service in World War II; and Alan Bender used to drive a laundry
truck and had the decedent on his route. None of the members of
the board had any formal training in banking,6 and only half the
members of the board had attended college. Despite the close
relationships of the other board members to decedent, however,
they were not a rubber stamp for decedent and Mark. The other
directors were strong-willed independent thinkers who contributed
to the board's deliberations. Moreover, those directors who were
also officers could use their positions as employees to subvert
any board decision with which they were in disagreement. But,
while the board was not a rubber stamp, many of the directors
thought similarly to decedent and were resistant to change.
3. Financial Management and Reporting
a. Outside Accountant
Peoples' longstanding regular accountant and auditor was
Ronnie Robinson, a sole practitioner in Evansville. Mr. Robinson
had no other financial institutions as clients.
6
Mark completed graduate banking training at the University
of Wisconsin in 1996. After the valuation date, Tony
Aylsworth, chief operating officer of Peoples since February
1998 (but not a member of the board), also completed
graduate banking training at the University of Colorado,
Boulder.
- 12 -
b. Budgeting
Peoples did not prepare budgets until 1991, after being
forced to do so by the FDIC. The budgets were prepared one
quarter at a time by Julia Raibley.
c. Earnings
In the years 1991-93, Peoples enjoyed an unusually high
yield curve, because of the spread between the rates of interest
received on securities and loans over interest paid on savings
accounts and certificates of deposit.
By the time of decedent's death, Peoples had begun
performing interest rate sensitivity analyses; however, its
methods of doing so were criticized as unreliable by the FDIC
examiners.
Peoples did not follow the practice of forecasting its
earnings.
D. Operations
1. Employees
On the valuation date, Peoples had approximately 30
employees, most of whom were in their mid-50's or older. Peoples
had no retirement plan, but it also had no mandatory retirement
age. As a result, Peoples had employees in their 70's and 80's.
In general, Peoples had a good relationship with its employees,
resulting in very little turnover and a median term of employment
of 17-1/2 years. However, there was some friction between
- 13 -
tellers and bookkeepers on the one hand, and loan officers on the
other, resulting in little mingling between the two groups.
2. Facilities
The operations of Peoples were housed in a two-story
building built in 1964; Peoples had no branches. Peoples'
facilities and equipment were in average condition and considered
adequate for its operations.
When Mark became president, Peoples was for the most part
operating with 1960's technology. Most operations in the bank
were done manually, and there were no information systems to keep
track of customers' credit, payments, or deposits. Peoples did
not have any ATM machines. Peoples had desktop PC's for use by
loan officers and customer service representatives, but only to
print out loan applications, signature cards, and other
operational documents. Under Mark's direction, however, Peoples
had entered into a contract with Old National to provide
electronic data processing (EDP) applications for deposits,
loans, and accounting. Although many of the directors were
hesitant about learning the new technology, they reluctantly
cooperated. During 1991 and 1992, Peoples converted its system
of accounting for its loan portfolio from a manual system to a
computerized system and began having its loans serviced by Old
National; however, on the valuation date, the complete conversion
of Peoples to the Old National EDP applications had not been
completed.
- 14 -
Security at Peoples was antiquated. Despite a number of
bank robberies in the area, Peoples had little protection from
armed robbery or burglary. Security at the bank consisted of
glass doors that could be locked and two 1960's vintage still
image security cameras. Peoples did not employ security guards
or arm its employees and did not have a central alarm system. In
the event of a robbery, Peoples did have a system in place to
activate a silent alarm that would notify the sheriff if bait
money should be removed from a teller bay. However, at the time
of decedent's death, the physical cash was not carefully managed,
and tellers frequently kept as much as $80,000 in their cash
drawers.
3. Franklin Loan and Savings Association
On the valuation date, the Franklin Loan and Savings
Association (Franklin) was affiliated with Peoples. Franklin did
not have its own facilities or employees and used those of
Peoples. Franklin paid Peoples for employee time used, along
with an annual rent of $600.
4. Depository Accounts
a. Checking Accounts
On the valuation date, Peoples offered "free" checking
accounts that really were free. There were no monthly charges,7
7
Peoples charged a fee on dormant accounts as provided by
State law.
- 15 -
minimum balances, or charges for transactions. In fact, until
shortly before decedent's death, Peoples provided checking
account customers with free printed blank checks; even after
Peoples decided to charge for checks, it charged customers only
for actual printing costs with no markup. As a result of
Peoples' generous checking account policy, there were
approximately 4,000 checking accounts open at Peoples on the
valuation date; however, approximately 1,200 of those accounts
had an average daily balance of less than $200 and total checking
account deposits amounted only to approximately $1 million. As a
result, most checking accounts were unprofitable for Peoples,
inasmuch as the costs of servicing the accounts exceeded earnings
on the deposits.
b. Savings Accounts
On the valuation date, Peoples had $7 to $8 million in
deposits in savings accounts.
c. Certificates of Deposit
The overwhelming majority of Peoples' deposits were
attributable to certificates of deposit. Those deposits included
"hot money", large deposits that come from a wide geographic area
in search of the best interest rate. Hot money is a volatile
source of deposits because it is likely to be withdrawn anytime a
better interest rate is being offered by another depository
institution. Peoples was not interested in pursuing or retaining
hot money, because, as discussed infra, it did not have
- 16 -
sufficient loan demand to pay the yields demanded by hot money
depositors.
5. Lending Activities
a. Loan Products
As of the reporting date, Peoples' loan portfolio was
heavily concentrated in real estate. Over 90 percent of Peoples'
loan portfolio was in real estate loans, of which 76.59 percent
were loans on 1 to 4 family residential real estate. Most real
estate loans made by Peoples were for existing properties, rather
than new construction. Peoples' concentration of loans in 1 to 4
family residential real estate placed it in the 98th percentile
in comparison to its peer institutions.
Peoples offered few choices in the way of loan products to
real estate borrowers. It did not offer adjustable rate
mortgages8 (ARM's) or home equity loans9 and did not participate
in any FHA or VA mortgage programs. Fixed-rate mortgages were
offered only with a 15- or 20-year term; a 30-year term, often
favored by first-time home buyers because of the lower monthly
payments, was not available. Also discouraging to first-time
home buyers, Peoples' loan-to-value (LTV) and loan limit
8
Peoples did not have sufficient information technology to
comply with regulations concerning the disclosures required
to be made to consumers with respect to adjustable rate
mortgage borrowers.
9
Peoples now offers home equity loans.
- 17 -
restrictions required significantly greater downpayments than
competing lenders. While its competitors were lending on an 80-
percent LTV, or as high as 90 to 95 percent with private mortgage
insurance (PMI), Peoples required an LTV ratio of 70 percent.
Although Peoples raised its LTV requirement to 80 percent in
1993, discussed infra, it did not offer any programs using PMI to
lower the borrower's downpayment. Finally, Peoples' $250,000
lending limit required proportionately larger downpayments on
more expensive homes than competitors. With a maximum mortgage
loan of $250,000, any house with a purchase price of more than
$312,500 would require a downpayment greater than 20 percent.
Peoples generally avoided making other types of consumer
loans, such as credit cards, automobile leasing, and automobile
financing. Although it technically offered automobile financing,
Peoples set rates above market because it was not interested in
making automobile loans, due to concerns over whether it had
sufficient personnel to track automobile documentation
(insurance, titles, etc.) and deal with collections. Such
automobile loans as were made were mainly to Peoples' employees.
As of the reporting date, only 2.13 percent of the Peoples
loan portfolio was in commercial and industrial loans, placing
Peoples in the 4th percentile (very low) in comparison to its
peers. Peoples generally did not make commercial loans, had only
one revolving line of credit open, and did not offer letters of
credit. After Mark became president, and before decedent's
- 18 -
death, Peoples tried to start a Small Business Administration
(SBA) loan program, but was unsuccessful in submitting loan
applications to the SBA because of inadequate documentation.
In sum, although Peoples' charter permitted it to offer a
broad range of lending products to consumer and commercial
borrowers, Peoples in practice generally failed to serve all but
a select class of home buyers who were not discouraged by
Peoples' LTV, loan limit, 20-year maximum term, and lack of
ARM's.
b. Loan-To-Asset Ratio
The effects of Peoples' narrowly defined market and
conservative lending practices are readily apparent. During the
4-year period ending on the valuation date, Peoples' net loans as
a percentage of assets averaged 30 percent. Peoples' peers, in
comparison, averaged 52 to 55 percent. After Mark became
president of Peoples, he tried to raise Peoples' loan-to-asset
ratio significantly and set a goal of 60 to 70 percent for 1993,
a rate that had not been achieved as of the date of trial. Aside
from adopting a more aggressive stance in the market, Peoples
could also have achieved an increased loan-to-asset ratio by
reducing its assets by declaring a substantial dividend.
On March 1, 1992, Joe Melhiser was hired as an assistant
vice president from another bank in an effort to increase
lending. As part of the effort to increase lending, Peoples
raised its LTV to 80 percent in 1993. Although the increased LTV
- 19 -
triggered concerns at Peoples over increased risks of default or
delinquency, Peoples did not raise its interest rates.
c. Loan Underwriting and Documentation
Loan decisions were made by a four-person loan committee on
the basis of a loan application. Peoples' underwriting
procedures were criticized by the FDIC for a number of
shortcomings. Until early 1993, for example, Peoples did not
require credit reports or title insurance for residential
mortgage loans and did not check whether flood insurance was
required on the property being financed.10 Contrary to standard
industry practice, Peoples made loans without verifying the
market value of the underlying collateral through independent
appraisal. Instead, Peoples used less reliable in-house
appraisals that did not conform to the format used by independent
appraisers. In some cases, Peoples even recycled old appraisals
of a property, rather than obtaining a new appraisal that would
reflect current market values.
Unlike most mortgage lenders, Peoples did not sell any
mortgage loans in the secondary mortgage market. Peoples had
unsuccessfully tried to sell mortgage loans in the past to Fannie
Mae and Freddie Mac but did not have underwriting practices and
documentation sufficient to comply with the standards of the
10
There was a high likelihood of flooding in some areas
served by Peoples; the Ohio River is the southern boundary
of Warrick County.
- 20 -
secondary market. In any event, Peoples needed to retain
ownership of the mortgage loans it made, because its supply of
funds exceeded the demand for its mortgage loans--selling the
mortgages would have further compromised Peoples' net interest
margin and earnings.
d. Loan Monitoring
Peoples monitored loans using paper ledger cards that were
stored in pockets that tracked the day of the month on which each
loan was due, so that if the loan was past due, the card would
remain in what would become a "past due" pocket instead of being
put in a current pocket.
Meetings concerning delinquent loans were held by Peoples'
loan committee. Peoples also had watch lists of problem loans as
required by the FDIC examiners, but they were not used by Peoples
to monitor loans.
6. Fee Income
Income from fees can make a significant contribution to the
income of a bank. Banks may earn income or fees from points and
origination fees on loans, ATM fees, trust fees, credit card
fees, servicing agreements, and insurance sales. Peoples
generally charged no points or fees, however, and had only
minimal fee income from its activities. Peoples did not service
loans made by other depository institutions.
- 21 -
E. Regulation and Monitoring
1. Classification, Regulation, and Insurance
The banking industry includes both commercial banks and
thrifts. While there is some overlap, commercial banks generally
provide a wider range of banking services than thrifts, whose
principal mission is financing home ownership. There are also
some differences in ownership. Commercial banks are always owned
as stock companies, while thrifts may be stock-owned or mutually
owned. Commercial banks and stock-owned thrifts are frequently
owned by a bank holding company owning one or more institutions.
Although most thrifts are mutually owned, stock companies account
for more than two-thirds of the assets of thrifts.
Both banks and thrifts can be federally or State chartered
and are generally insured by either the Bank Insurance Fund (BIF)
or Savings Association Insurance Fund (SAIF) of the Federal
Deposit Insurance Corporation (FDIC). BIF insures all federally-
chartered commercial banks, most State-chartered commercial
banks, and some State-chartered thrifts. SAIF insures all
federally-chartered and some State-chartered, thrifts. Since
July 1, 1991, SAIF- and BIF-insured institutions have paid the
same level of deposit insurance premium (0.23 percent of
deposits).
On the valuation date, Peoples was chartered by the State of
Indiana with the powers of a commercial bank and was BIF-insured.
As a result, Peoples was subject to regulation at the Federal
- 22 -
level by the FDIC and at the State level by the Department of
Financial Institutions of the State of Indiana (IDFI). The FDIC
and the IDFI share regulatory responsibilities and exchange
documents, reports and examinations, and correspondence
concerning the institutions that they both supervise and
regulate.
Although Peoples was chartered with the powers of a
commercial bank, it displayed the characteristics of a thrift.
Its loan portfolio was heavily concentrated in residential real
estate loans that were held until maturity; Peoples did not sell
or service loans. The asset structure of Peoples was heavily
weighted toward investment securities, and the loan-to-deposit
ratio was below 50 percent. Despite the powers granted under its
charter, Peoples was not equipped to operate as a commercial bank
without significant expenditures to update its systems and
procedures to process commercial lending and deposit products.
Accordingly, for purposes of valuing the estate shares, Peoples
should be treated as a thrift, rather than a commercial bank.
2. Safety and Soundness
Both FDIC and IDFI conduct regular compliance and safety and
soundness examinations of Peoples using a composite ratings
system based on six areas of concern: (1) Capital adequacy,
(2) asset quality, (3) management competency, (4) earnings level
and trend, (5) level of liquidity, and (6) interest rate
sensitivity. FDIC conducted examinations of Peoples as of the
- 23 -
close of business November 10, 1990, and December 11, 1992; IDFI
conducted an examination as of March 14, 1992. In all three
cases, Peoples received a uniform composite rating of one (1),
the highest possible rating. Institutions earning a uniform
composite rating of one (1) are basically sound in every respect
and are considered to be resistant to external economic and
financial disturbances and more capable of withstanding the
vagaries of business conditions than institutions with lower
ratings. Nevertheless, in their reports with respect to the 1992
examinations, both FDIC and IDFI expressed concern over Peoples'
liability sensitive position and cautioned that earnings could be
negatively impacted during a period of rising interest rates.
The FDIC also expressed concern over shortcomings in various
policies and procedures of Peoples, including financial
reporting, underwriting, and budgeting, although apparently not
of sufficient magnitude to affect Peoples' top rating.
3. Community Reinvestment Act
The Community Reinvestment Act (CRA), title VII of the
Housing and Community Development Act of 1977, Pub. L. 95-123,
sec. 802, 91 Stat. 1147, currently codified at 12 U.S.C. sec.
2901 (1994), was enacted by Congress to encourage depository
institutions to help meet the credit needs of the communities in
which they operate, including low- and moderate-income
neighborhoods, consistent with safe and sound banking operations.
CRA requires that each insured depository institution’s record in
- 24 -
helping meet the credit needs of its entire community be
evaluated periodically. That record is taken into account in
considering an institution’s application for deposit facilities,
including mergers and acquisitions. CRA examinations are
conducted by the Federal agencies that are responsible for
supervising depository institutions, such as FDIC and the Office
of Thrift Supervision (OTS). Inasmuch as Peoples was insured by
FDIC, it was subject to FDIC examination with respect to its CRA
compliance. Peoples' designated CRA area included all of Warrick
County. Peoples reduced the size of its CRA area in August 1992
at the suggestion of an FDIC examiner because of its compliance
difficulties. If Evansville had been included in Peoples'
designated CRA area, Peoples would have had significantly greater
difficulty complying, because it would have had to prove it was
fairly serving Evansville's low- and moderate-income
neighborhoods.
Peoples received CRA performance ratings of "needs to
improve" on two occasions. In its CRA Performance Report as of
the close of business on November 10, 1990 (first CRA report),
FDIC cited three principal CRA compliance issues: (1) Lack of
adequate effort by Peoples to determine the credit needs of the
community, (2) lack of adequate effort by Peoples to publicize
the types of loans it offered, and (3) generally conservative
lending practices. In a memorandum of understanding dated
March 13, 1991 (first MOU), and signed by all directors of
- 25 -
Peoples, Peoples agreed to address the CRA compliance issues
raised by the FDIC in the first CRA report.
In a CRA Performance Report as of the close of business
August 31, 1992 (second CRA report), FDIC identified additional
CRA compliance problems, including: (1) Lack of formal training
by Peoples of its employees on CRA compliance, (2) failure by
Peoples to monitor its own performance in complying with the CRA,
(3) failure by Peoples to review its lending patterns for
evidence of discriminatory lending practices, (4) loan-to-deposit
ratio, (5) low volume of farm and business credit extended, and
(6) lobby hours significantly below that of the competition. In
response to the second CRA report, the directors of Peoples
signed another Memorandum of Understanding on October 7, 1992
(second MOU).
Within a month after signing the second MOU, in an attempt
to improve its CRA compliance, Peoples created a new position--
compliance officer--and hired Thomas Krochta, a local attorney,
to do the job. Nevertheless, on December 31, 1992, as Mr.
Krochta was settling into his new position, Simona L. Frank,
Chicago regional director of FDIC's Division of Supervision,
wrote to the board expressing concern over Peoples' continued
noncompliance and requesting immediate corrective action. Ms.
Frank said that she planned to recommend to the national office
of the Division of Supervision that Peoples continue to be
designated a "problem bank" under the CRA. As a result of the
- 26 -
"problem bank" designation, Peoples was subjected to a very high
level of scrutiny in future examinations by the FDIC;
examinations were conducted more frequently; greater
correspondence between Peoples and the FDIC was required; and
Peoples could have been prohibited from any merger, acquisition,
divestiture, or expansion activity. Designation as a "problem
bank" also excluded Peoples from bidding on the assets of failed
financial institutions. Continued failure to comply with the CRA
could have resulted in a cease-and-desist order by the FDIC, with
the ultimate sanction of forced closure.
Peoples' CRA compliance costs were significant for a bank
its size. In addition to the additional demands on management
imposed by the CRA requirements, Peoples was forced to hire two
full-time attorneys to oversee its CRA compliance. In February
1993, shortly after hiring Mr. Krochta, Peoples hired Tony
Aylsworth, another local attorney as an assistant vice president
and assistant compliance officer. Mr. Aylsworth's first
assignment at Peoples was "scrubbing" the loan files.
"Scrubbing" as used in this context, refers to the process of
reviewing loan files to see if they contain adequate
documentation, and correcting any documentation problems
discovered, such as missing documents or signatures. Inadequate
loan documentation was a contributing factor in Peoples' CRA
compliance difficulties, because Peoples was unable to show why
and where it was denying certain loans. Until decedent's death
- 27 -
on May 20, 1993, he worked closely with Mr. Aylsworth on the
"scrubbing" project.
On July 22, 1993, the FDIC notified Peoples that it had
demonstrated compliance with only about half of the terms and
conditions of the second MOU. Not until early 1994 did Peoples
finally achieve compliance with the second MOU. In October 1994,
Mr. Aylsworth ceded his position as assistant compliance officer
and became a trust officer, a position he held until February
1998, when he became chief operating officer.
4. Third-Party Monitoring
Peoples was highly regarded by regulators and the banking
community for its safety and soundness and was recognized by the
following bank rating services:
Rating service Rating
Veribank Inc. Blue ribbon bank
Bauer Financial Reports Five star bank
Sheshunoff Information Listed in highest rated
Services banks in America
F. Market Conditions
1. Banking Industry
In 1993, the banking industry was still recovering from the
recession of the early 1990's, and--in the case of thrifts--from
the savings and loan crisis. The first quarter of 1993 was the
first time since 1989, when the savings and loan industry bailout
was introduced, that no savings banks had failed. Prospects for
- 28 -
the industry were encouraging as a result of low interest and
inflation rates that led to increased consumer borrowing and
spending, increased production and expansion, and lower
unemployment.
2. Competition
Peoples’ main competitors in Boonville were Old National,
Warrick Federal Credit Union (the Credit Union), and Boonville
Federal Savings Bank. Old National and the Credit Union both had
competitive positions superior to that of Peoples. Among its
Boonville competitors, Peoples was considered to be something of
a dinosaur. Peoples had been losing customers since the Credit
Union opened. In comparison to its competitors, Peoples' only
advantage was in the low costs and fees it offered on home
mortgages, along with a competitive interest rate.
Peoples also faced competition from large commercial banks
in Evansville that had presences in other parts of southern
Indiana: (1) Old National; (2) CNB Bancshares; and (3) National
City Bancshares. However, all three Evansville banks were trying
to grow through acquisition, so while they may have posed a
competitive threat, they were also a potential acquirer of
Peoples. Old National's Boonville branch, for example, had
resulted from Old National's acquisition of a local bank.
- 29 -
3. Local Economy
On the valuation date, the local economy served by Peoples
was growing slowly. In Boonville, the largest employer was the
School Corporation. In Warrick County, the two largest
employers, Alcoa and Peabody Coal, were both significantly
downsizing. Alcoa, which previously employed 3,500 to 4,000
local workers, was reducing its local workforce by one-third,
while Peabody Coal was reducing its local workforce by two-
thirds, to fewer than 200 employees. Another coal mining
concern, Amax, had ceased local mining operations entirely. The
area served by Peoples also contained a Whirlpool manufacturing
plant and some farming activity. Despite the negative
developments in the Warrick County economy, many residents of
Warrick County worked in Evansville, which was experiencing
modest growth.
On April 16, 1987, the U.S. District Court for the Southern
District of Indiana entered a consent judgment in an action filed
by the U.S. Environmental Protection Agency (EPA) against the
State of Indiana and the City of Boonville. EPA had initiated
the action because Boonville's sewage treatment facilities were
overloaded, resulting in the discharge of insufficiently treated
wastewater, in violation of the Clean Water Act11 and other
Federal laws. The consent judgement required Boonville to
11
Water Quality Act of 1987, Pub. L. 100-4, sec. 1(a), 101
Stat. 7, currently codified as 33 U.S.C. sec. 1251 (1994).
- 30 -
prohibit "all new sewer connections" (sewer tap ban) until it
could demonstrate compliance with all remedial provisions of the
consent judgment. EPA could grant waivers from the sewer tap
only under very limited circumstances:
Waivers from this sewer ban for new sources may be
granted * * * only if EPA determines that the proposed
connection will eliminate an existing health hazard and
the resulting public health benefit outweighs the
adverse impact of any reduction in wastewater effluent
quality.
The sewer tap ban made it very difficult to obtain commercial or
residential building permits in Boonville and was considered a
high priority issue by the Boonville Board of Public Works,12 but
it did not bar new construction elsewhere in Warrick County. On
the valuation date, Newburgh, a suburb of Evansville, was one
area in Warrick County where new home construction was active,
primarily single-family homes priced between $300,000 to
$400,000. However, because of its conservative lending practices
(described supra pp. 16-19), Peoples could not serve the needs of
younger cash-poor borrowers who could otherwise afford to
purchase a $300,000 to $400,000 house.
Although Peoples was located only 14 miles from Evansville,
Peoples generally chose not to engage in lending activities in
Evansville, or its surrounding county, Vanderburgh County.
12
Tony Aylsworth, an officer of Peoples since February
1993, served on the Boonville three-person Board of Public
Works from January 1996 until February 1998.
- 31 -
Peoples avoided making loans in Vanderburgh County because its
conservative-minded loan officers were unfamiliar with the area
and its values and because adding Evansville to Peoples'
designated CRA area would have increased Peoples' CRA compliance
requirements.
G. Estate Tax Return
Decedent's co-personal representatives executed and timely
filed a United States Estate (and Generation-Skipping Transfer)
Tax Return, Form 706, on August 8, 1994.13 The Form 706 had been
prepared by Jeffrey B. Baker, a certified public accountant and
certified financial planner. Decedent's 1,499 shares of Peoples
common stock were included on Schedule B of the Form 706. Of the
1,499 shares, the Form 706 reported 1,486 shares at a value of
$3,159,726 ($2,126 per share), and 13 shares at a value of
$10,400 ($800 per share).
The $2,126-per-share value reported on the Form 706 was
based on a valuation of the estate shares by Harding Shymanski &
Company, P.C. (HSC), an Evansville, Indiana, public accounting
firm. HSC valued the Peoples' total equity on a minority basis
using the weighted average value under three different valuation
methods. The three methods and their weightings were: (1)
Capitalized earnings (30 percent), (2) price/earnings multiple
13
Petitioner requested and received a timely extension of
time for filing the Form 706.
- 32 -
(30 percent), and (3) price/book multiple (40 percent). After
computing the weighted average value of total equity on a
minority basis, HSC applied a 30-percent marketability discount,
and divided the result by 3,000, the total number of shares of
Peoples common stock outstanding, to determine the fair market
value of the estate shares on a per share basis. Petitioner did
not use HSC as an expert witness in this case.
On July 25, 1997, respondent timely mailed petitioner a
notice of deficiency with respect to its estate tax liability.
The notice of deficiency determined a value of $8,938,91214 for
the estate shares, based upon an appraisal prepared by David F.
Fuller of Business Valuation Services, Inc., who acted as
respondent's expert witness in this case.
H. Lack of Marketability
On the valuation date: (1) Peoples had few opportunities
for growth; (2) Peoples' earnings were subject to significant
interest rate risk; (3) Peoples had no employee stock option plan
or history of repurchasing shares; and (4) there was no readily
available public or private market for Peoples stock. Each of
these conditions contributed to a lack of marketability of
Peoples stock.
14
The redetermined value of the estate shares in the notice
of deficiency and the amount asserted at trial by respondent
are essentially the same; they differ only because
respondent's expert rounded certain figures in his report.
See discussion infra of respondent's expert.
- 33 -
ULTIMATE FINDING OF FACT
On the valuation date, the fair market value of the estate
shares was $5,757,296 ($3,840.76 per share).
OPINION
The issue for decision is the fair market value on the
valuation date (May 20, 1993) of 1,499 shares of Peoples common
stock included in decedent's gross estate.
Valuation is a question of fact, and the trier of fact must
weigh all relevant evidence to draw the appropriate inferences.
See Commissioner v. Scottish Am. Inv. Co., 323 U.S. 119, 123-125
(1944); Helvering v. National Grocery Co., 304 U.S. 282, 294-295
(1938); Anderson v. Commissioner, 250 F.2d 242, 249 (5th Cir.
1957), affg. in part and remanding in part on another ground T.C.
Memo. 1956-178; Estate of Newhouse v. Commissioner, 94 T.C. 193,
217 (1990); Skripak v. Commissioner, 84 T.C. 285, 320 (1985).
Fair market value is defined for Federal estate and gift tax
purposes as the price that a willing buyer would pay a willing
seller, both having reasonable knowledge of all the relevant
facts and neither being under compulsion to buy or to sell. See
United States v. Cartwright, 411 U.S. 546, 551 (1973) (citing
sec. 20.2031-1(b), Estate Tax Regs.); see also Snyder v.
Commissioner, 93 T.C. 529, 539 (1989); Estate of Hall v.
Commissioner, 92 T.C. 312, 335 (1989). The willing buyer and the
willing seller are hypothetical persons, rather than specific
individuals or entities, and the peculiar characteristics of
- 34 -
these hypothetical persons are not necessarily the same as the
individual characteristics of an actual seller or an actual
buyer. See Estate of Curry v. United States, 706 F.2d 1424,
1428-1429, 1431 (7th Cir. 1983); Estate of Bright v. United
States, 658 F.2d 999, 1005-1006 (5th Cir. 1981); Estate of
Newhouse v. Commissioner, supra at 218; see also Estate of Watts
v. Commissioner, 823 F.2d 483, 486 (11th Cir. 1987), affg. T.C.
Memo. 1985-595. The hypothetical willing buyer and willing
seller are presumed to be dedicated to achieving the maximum
economic advantage. See Estate of Curry v. United States, supra
at 1428; Estate of Newhouse v. Commissioner, supra at 218. This
advantage must be achieved in the context of market and economic
conditions at the valuation date. See Estate of Newhouse v.
Commissioner, supra at 218.
For Federal estate tax purposes, the fair market value of
the subject property is generally determined as of the date of
death of the decedent; ordinarily, no consideration is given to
any unforeseeable future event that may have affected the value
of the subject property on some later date. See sec. 20.2031-
1(b), Estate Tax Regs.; see also First Natl. Bank v. United
States, 763 F.2d 891, 893-894 (7th Cir. 1985); Estate of Newhouse
v. Commissioner, supra at 218; Estate of Gilford v. Commissioner,
88 T.C. 38, 52 (1987).
Special rules apply to the valuation of the stock of a
closely held corporation. While listed market prices are the
- 35 -
benchmark in the case of publicly traded stock, recent arm’s-
length transactions generally are the best evidence of fair
market value in the case of unlisted stock. See Estate of
Andrews v. Commissioner, 79 T.C. 938, 940 (1982); Duncan Indus.,
Inc. v. Commissioner, 73 T.C. 266, 276 (1979); Estate of Branson
v. Commissioner, T.C. Memo. 1999-231. Where the value of
unlisted stock cannot be determined from actual sale prices,
value is best determined by taking into consideration the value
of listed stock in comparable corporations engaged in the same or
a similar line of business, as well as all other factors bearing
on value, including analysis of fundamentals. See sec. 2031(b);
Estate of Newhouse v. Commissioner, supra at 217; Estate of Hall
v. Commissioner, supra at 336. The factors that we must consider
are those that an informed buyer and an informed seller would
take into account. See Hamm v. Commissioner, 325 F.2d 934, 940
(8th Cir. 1963), affg. T.C. Memo. 1961-347. Rev. Rul. 59-60,
1959-1 C.B. 237, "has been widely accepted as setting forth the
appropriate criteria to consider in determining fair market
value", Estate of Newhouse v. Commissioner, supra at 217; it
lists the following factors to be considered, which are virtually
identical to those listed in section 20.2031-2(f), Estate Tax
Regs.:
(a) The nature of the business and the history of the
enterprise from its inception.
(b) The economic outlook in general and the condition
and outlook of the specific industry in particular.
- 36 -
(c) The book value of the stock and the financial
condition of the business.
(d) The earning capacity of the company.
(e) The dividend-paying capacity.
(f) Whether or not the enterprise has goodwill or
other intangible value.
(g) Sales of the stock and the size of the block of
stock to be valued.
(h) The market price of stocks of corporations
engaged in the same or a similar line of business
having their stocks actively traded in a free and open
market, either on an exchange or over-the-counter.
[Rev. Rul. 59-60, 1959-1 C.B. at 238-239.]
As is customary in valuation cases, the parties rely
primarily on expert opinion evidence to support their contrary
valuation positions. We evaluate the opinions of experts in
light of the demonstrated qualifications of each expert and all
other evidence in the record. See Anderson v. Commissioner,
supra; Parker v. Commissioner, 86 T.C. 547, 561 (1986). We have
broad discretion to evaluate "'the overall cogency of each
expert's analysis.'" Sammons v. Commissioner, 838 F.2d 330, 334
(9th Cir. 1988) (quoting Ebben v. Commissioner, 783 F.2d 906, 909
(9th Cir. 1986), affg. in part and revg. in part T.C. Memo. 1983-
200), affg. in part and revg. in part on another ground T.C.
Memo. 1986-318. Expert testimony sometimes aids the Court in
determining values; sometimes it does not, particularly when the
expert is merely an advocate for the position argued by one of
the parties. See, e.g., Estate of Halas v. Commissioner, 94 T.C.
- 37 -
570, 577 (1990); Laureys v. Commissioner, 92 T.C. 101, 129
(1989). We are not bound by the formulas and opinions proffered
by an expert witness and will accept or reject expert testimony
in the exercise of sound judgment. See Helvering v. National
Grocery Co., 304 U.S. at 295; Anderson v. Commissioner, 250 F.2d
at 249; Estate of Newhouse v. Commissioner, 94 T.C. at 217;
Estate of Hall v. Commissioner, 92 T.C. at 338. Where necessary,
we may reach a determination of value based on our own
examination of the evidence in the record. See Lukens v.
Commissioner, 945 F.2d 92, 96 (5th Cir. 1991) (citing Silverman
v. Commissioner, 538 F.2d 927, 933 (2d Cir. 1976), affg. T.C.
Memo. 1974-285); Ames v. Commissioner, T.C. Memo. 1990-87, affd.
without published opinion 937 F.2d 616 (10th Cir. 1991). Where
experts offer divergent estimates of fair market value, we decide
what weight to give these estimates by examining the factors they
used in arriving at their conclusions. See Casey v.
Commissioner, 38 T.C. 357, 381 (1962). We have broad discretion
in selecting valuation methods, see Estate of O'Connell v.
Commissioner, 640 F.2d 249, 251 (9th Cir. 1981), affg. on this
issue and revg. in part T.C. Memo. 1978-191, and in determining
the weight to be given the facts in reaching our conclusion
because “finding market value is, after all, something for
judgment, experience, and reason”, Colonial Fabrics, Inc. v.
Commissioner, 202 F.2d 105, 107 (2d Cir. 1953), affg. a
Memorandum Opinion of this Court. Moreover, while we may accept
the opinion of an expert in its entirety, Buffalo Tool & Die
- 38 -
Manufacturing Co. v. Commissioner, 74 T.C. 441, 452 (1980), we
may be selective in the use of any part of such opinion, or
reject the opinion in its entirety, Parker v. Commissioner, supra
at 561. Finally, because valuation necessarily results in an
approximation, the figure at which we arrive need not be directly
attributable to specific testimony if it is within the range of
values that may properly be arrived at from consideration of all
the evidence. See Silverman v. Commissioner, supra at 933;
Alvary v. United States, 302 F.2d 790, 795 (2d Cir. 1962).
1. Respondent's Expert
Respondent relies on the expert report of David N. Fuller, a
principal in the Dallas, Texas, office of Business Valuation
Services, Inc. (BVS). Mr. Fuller has worked in business
valuation since he graduated from Southern Methodist University
in 1989 with an M.B.A. in finance. He was a Manager in the
Valuation Group at Deloitte & Touche from 1989 until 1992, when
he became associated with BVS. Mr. Fuller is an Accredited
Senior Appraiser and Chartered Financial Analyst. Mr. Fuller
valued the estate shares at $8,939,000 ($5,963.25 per share)
using the weighted average value of the estate shares under an
income approach and a market approach, reduced by a marketability
discount of 10 percent.
- 39 -
a. Discounted Cash-Flow
The income approach employed by Mr. Fuller was the
discounted cash-flow method (DCF). A DCF analysis attempts to
measure value by forecasting a firm's ability to generate cash
and discounting the flows to present value using the firm’s cost
of capital. There are three components to the DCF analysis: (1)
The cash-flow projections over the forecasted period; (2) the
terminal value; and (3) the appropriate discount rate. Using
DCF, a firm's value is calculated as the discounted present value
of the forecasted cash-flow from operations plus the discounted
present value of the terminal value. See Brealey & Myers,
Principles of Corporate Finance 30, 64, G4 (4th ed. 1991).
Before performing his DCF analysis, Mr. Fuller reduced the
operating assets shown on Peoples' balance sheet in order to
project Peoples' free cash-flow from operations (FCF). Mr.
Fuller made these adjustments because he considered Peoples to be
overcapitalized, as measured by its ratio of book equity to
assets. With total equity of $19,918,000 and total assets of
$90,689,000 on the reporting date, Peoples had a book equity-to-
assets ratio of 22 percent.15 In comparison, according to Mr.
15
The pro forma balance sheet prepared by Mr. Fuller as of
May 20, 1993, showed total equity of $20,772,000 and total
assets of $94,948,000, resulting in a similar book equity-
to-assets ratio.
- 40 -
Fuller, the average of Peoples' "peer group"16 was only 7.9
percent. Mr. Fuller considered a 9-percent book equity-to-assets
ratio to be a reasonable level of capitalization for Peoples,17
and, accordingly, he reduced the balances of Peoples' total
assets and total equity accounts by $12,919,000--the amount
necessary to lower Peoples' book equity-to-asset ratio to 9
percent, resulting in adjusted total equity and total assets of
$6,999,000 and $77,770,000, respectively. Mr. Fuller then
treated the $12,919,000 in assets removed in his adjustments as
16
The depository institutions comprising Peoples' peer
group are determined by The Federal Financial Institutions
Examination Council (FFIEC), an entity established by
Congress in 1978 to promote consistent examination and
supervision of financial institutions. Members in the FFIEC
include the Comptroller of the Currency, the Chair of the
FDIC, and a member of the Federal Reserve Board of
Governors.
Peer group data is used by the FFIEC in Uniform Bank
Performance Reports, which are issued by the FFIEC for every
insured bank on a quarterly basis. The FFIEC assigns each
bank or holding company to a particular peer group based
upon asset size and number of branches or banks. Mercer,
Valuing Financial Institutions 61, 143 (1992). Peoples'
peer group consisted of 43 commercial banks and 6 thrifts
operating in Indiana, Illinois, Ohio, and Kentucky, with
average total assets of approximately $82 million.
17
We note that the 9-percent figure used by Mr. Fuller
was very close to the average equity-to-assets ratios for
the guideline companies selected by petitioner's expert,
James E. Magee, of Alex Sheshunoff & Co. Investment Banking,
discussed infra. Mr. Magee used two groups of guideline
company data: One that was based on controlling interest
transactions, and one that was based on minority interest
transactions. The average equity-to-asset ratios for the
two groups were 9.05 percent and 8.57 percent, respectively.
- 41 -
nonoperating assets, whose income would not be included in
Peoples' FCF.
Mr. Fuller forecasted Peoples' FCF for 5 years forward (the
valuation horizon), and computed a terminal value using the
Gordon dividend growth model (Gordon model). The Gordon model is
a model for estimating the terminal value of a going concern,
which assumes that FCF will continue indefinitely and grow at a
constant rate. For purposes of computing the terminal value
under the Gordon model, Mr. Fuller assumed that Peoples' FCF
would continue indefinitely, growing at a rate of 1.5 percent
annually. In forecasting FCF for the valuation horizon and the
terminal value, Mr. Fuller took into account the earnings impact
of removing $12,919,000 from operating assets. Mr. Fuller
assumed that such a reduction would reduce Peoples' net interest
income, rather than loan income, because Peoples could readily
dispose of marketable securities, while its loans had proven to
be unmarketable. Accordingly, Mr. Fuller forecasted Peoples' net
interest income at approximately $1.1 million less than Peoples'
reported net interest income for the calendar year 1992--a
sufficient amount to reflect the loss of an approximately 8-
percent return on the nonoperating assets.
Mr. Fuller estimated Peoples' cost of capital using a
weighted average cost of capital (WACC) formula and calculated
Peoples' cost of equity using the standard capital asset pricing
model (CAPM) formula. The cost of equity was calculated using a
- 42 -
7-percent risk-free rate, a risk premium of 7.3 percent, and a
beta of "about 1.0, approximately equal to the overall market
average of 1.0".
Mr. Fuller calculated beta using the average unlevered
beta18 for the 23 publicly traded Midwestern banks tracked by the
Value Line Investment Survey (4th ed. Apr. 9, 1993) (the VL
list). The VL list included the leading full-service commercial
banks in the Midwest, such as Banc One Corp., First Chicago
Corp., National City Corp., and Norwest Corp. The VL list did
not contain any small, single-location banks such as Peoples; all
the banks on the VL list were substantially larger. The market
capitalizations of the banks on the VL list ranged from
approximately $700 million to $15 billion, with mean and median
capitalizations of approximately $3.76 billion and $2.88 billion,
respectively.
After calculating unlevered betas for each of the companies,
Mr. Fuller calculated an average unlevered beta of 0.9 and an
average relevered beta of 1. Despite the fact that Peoples was
unleveraged, Mr. Fuller chose a beta of 1, the same as the
average relevered beta.
18
An unlevered beta measures the business risk of a company
by removing the effect of financial leverage. This permits
the betas of comparison companies to be considered so that
business risk can be isolated and evaluated apart from the
risks associated with financial leverage. Copeland et al.,
Valuation: Measuring and Managing the Values of Companies
331 (2d ed. 1994).
- 43 -
Using the 14.3-percent discount rate he calculated under
CAPM, Mr. Fuller calculated discounted present values of
$3,480,000 and $4,660,000 for Peoples' FCF for the valuation
horizon, and its terminal value, respectively, for a value from
operations of $8,140,000. He then added back the book value of
the nonoperating assets, net of a 10-percent minority discount,
to arrive at a total equity value of $19,770,000 ($6,590 per
share).
There are significant shortcomings in Mr. Fuller’s
application of CAPM in this case that highlight our doubts over
the appropriateness of its application to the valuation of small,
closely held companies. As we said recently, "CAPM is a
financial model intended to explain the behavior of publicly
traded securities", and we "do not believe that CAPM and WACC are
the proper analytical tools to value a small, closely held
corporation with little possibility of going public." Furman v.
Commissioner, T.C. Memo. 1998-157, 75 T.C.M. (CCH) 2206, 2214,
1998 T.C.M. (RIA) par. 98,157, at 868-98. Unlike the market
contemplated by CAPM, the market for Peoples stock, to the extent
one even exists, is not efficient, liquid, or free of significant
transaction costs. Moreover, in relation to other closely held
corporations, the liquidity of a financial institution is even
further reduced by the fact that acquisitions and dispositions of
- 44 -
its stock are subject to regulatory approval.19 Finally, CAPM
assumes that investors hold, or have the ability to hold,
diversified portfolios that eliminate, on a portfolio basis, the
effects of unsystematic risk--the elements of risk that are
specific to the asset held. Consequently, because CAPM assumes
that an investor holding a diversified portfolio will encounter
only systematic risk, the only type of risk for which an investor
can be compensated is systematic or market risk, which represents
the sensitivity of the future returns from a given asset to the
movements of the market as a whole. See id. (citing Brealey &
Myers, Principles of Corporate Finance 137-138, 143-144 (4th ed.
1991); Pratt et al., Valuing a Business 166 (3d ed. 1996)).
In calculating Peoples' discount rate, Mr. Fuller followed
the principles of CAPM and did not make any provision for
Peoples' unsystematic risk, based on the assumption that such
risk was diversifiable. Yet respondent and Mr. Fuller have
overlooked the difficulties in diversifying an investment in a
block of stock they argued is worth approximately $8.94 million.
Construction of a diversified portfolio that will eliminate most
unsystematic risk requires from 10 to 20 securities of similar
value. See Brealey & Myers, supra at 137-139. Thus, proper
diversification of an investment in the Peoples shares owned by
19
An acquisition of greater than a 24.9-percent interest
requires Federal regulatory approval.
- 45 -
petitioner, as valued by respondent, would require a total
capital investment of at least $89 million. We do not think the
hypothetical buyer should be limited only to a person or entity
that has the means to invest $89 million in Peoples and a
portfolio of nine other securities.
As illustrated by Mr. Fuller's valuation, the selection of
beta is another problem inherent in the application of CAPM to
the valuation of closely held companies. See Furman v.
Commissioner, supra. Beta, a measure of systematic risk, is a
function of the relationship between the return on an individual
security and the return on the market as a whole. See Pratt et
al., supra at 166. The betas of public companies are frequently
published or can be calculated using historical pricing data on
the company's stock. Thus, a beta cannot be calculated for the
stock in a closely held corporation--it can only be estimated
based on the betas of comparable publicly traded companies.
However, because the betas for small corporations tend to be
larger than the betas for larger corporations, it may be
difficult to find suitable comparables when valuing a small,
closely held corporation. See Ibbotson Associates, Stocks,
Bonds, Bills & Inflation, 1993 Yearbook (Ibbotson) at 159;
Copeland et al., Valuation: Measuring & Managing the Value of
Companies 265-266 (2d ed. 1994). In this case, Mr. Fuller used 1
- 46 -
as the beta, which equaled the relevered20 average beta of the
banks on the VL bank list. As discussed, supra, there are
substantial differences in size and operations between Peoples
and the banks on the VL bank list; we do not believe that their
betas are representative of the greater business risks faced by
Peoples. For example, in comparison to the large banks on the VL
list, Peoples had limited opportunities for growth; less ability
to diversify risk, because of limited product offerings and
dependence on the economic conditions of a few counties; lacked
the ability to create the economies of scale available to large
banks; had greater interest rate risk because it could not sell
mortgages on the secondary market; had less control over credit
risk due to inadequate underwriting standards and a lack of
information technology support; and could not afford to employ
the personnel and technology used by large banks to protect and
pursue earnings through the management of interest rate risk.
Mr. Fuller did not otherwise adequately support his
selection of a beta of 1, a figure he admits is "approximately
equal to the overall market average of 1 based on the S&P 500."21
That statement, if anything, suggests that Mr. Fuller's beta is
20
Mr. Fuller did not explain why he used the relevered
beta, rather than the unlevered beta, when Peoples was not
leveraged.
21
The S&P 500 stock index includes 500 of the largest
stocks (by market value) in the United States.
- 47 -
unreasonably low; using a beta greater than 1 would increase the
discount rate used in the Fuller analysis, thereby decreasing the
value otherwise computed. We do not believe that an investment
in Peoples, a small, single-location bank, whose earnings were
susceptible to impending interest rate mismatches and sluggish
local economic conditions, presents the same systematic risk as
an investment in an index fund holding shares in 500 of the
largest corporations in the United States.
In calculating the discount rate, Mr. Fuller used an equity
risk premium of 7.3 percent, "based on the average share of
common stock of publicly traded companies", and cited Ibbotson.
We think that Mr. Fuller meant Ibbotson's long-horizon equity
risk premium, which represents the total returns of large company
stocks, less the long-term risk-free rate, which is widely used
in calculating a cost of capital under CAPM.
Although Mr. Fuller cited Ibbotson as his source for equity
risk premium, in his initial report he ignored a crucial aspect
of the Ibbotson approach to constructing a cost of capital--the
small stock premium. In his rebuttal report, Mr. Fuller
unsuccessfully tried to persuade us that the small stock premium
is not supported by financial theory, characterizing the risk
associated with a firm's size as unsystematic risk, for which the
market does not compensate. The relationship between firm size
and return is well known. Size is not an unsystematic risk
factor and cannot be eliminated through diversification. "On
- 48 -
average, small companies have higher returns than large ones."
Ibbotson at 125 (citing Banz, The Relationship Between Returns
and Market Value of Common Stock, 9 J. Fin. Econ., 3-18 (1981)).
We have already alluded to the likelihood that small stocks will
have higher betas than larger stocks, because of greater risk.
See Ibbotson at 126. However, it has been found that the greater
risk of small stocks is not fully reflected by CAPM, in that
actual returns may exceed those expected based on beta. See id.
Consequently, when calculating a cost of capital under CAPM on a
small stock22, it is appropriate to add a small stock premium to
the equity risk premium, to reflect the greater risk associated
with an investment in a small stock in comparison to the large
stocks from which the equity-risk premium is calculated. Based
on Peoples' size, a microcapitalization equity size premium of
3.6 percent should have been added. See Ibbotson at 161.
Consequently, even if we accepted Mr. Fuller's beta of 1, which
we do not, Peoples' cost of capital should have been at least 18
percent.
b. Guideline Company Method
The market approach used by Mr. Fuller was the guideline
company method (guideline method). Under the guideline method,
22
There are actually three different premiums: (1) The mid-
capitalization equity size premium (capitalization between
$696 and $3,015 million); the low-capitalization equity size
premium ($171 million to $696 million); and (3) the
microcapitalization equity size premium (capitalization
below $171 million).
- 49 -
value measures are developed using the stock prices of similar
companies (guideline companies) that are publicly traded. The
value measures are then compared to the subject company’s
fundamental data to reach an estimate of value for the subject
company or its shares. Because value under the guideline method
is developed from the market data of similar companies, the
selection of appropriate comparable companies is of paramount
importance.
Mr. Fuller’s principal criterion for selecting guideline
companies was geography, rather than size, financial, or
operating characteristics. All seven of the guideline companies
selected operated primarily in Indiana, Illinois, and Ohio.
As in the DCF analysis, Mr. Fuller adjusted the values of
Peoples' equity and assets to adjust the book equity-to-assets
ratio to 9 percent and made an adjustment to earnings. Mr.
Fuller then calculated the median price-to-earnings23 multiple
(10.4), price-to-assets ratio (12.1 percent), and price-to-book
equity ratios of the guideline companies (110.3 percent). After
calculating a value from operations using the ratios, Mr. Fuller
added back the excess equity value, reduced by a 10-percent
minority discount, to find the total value of Peoples' equity.
Applying the ratios to the adjusted equity, assets, and earnings
23
The price-to-earnings multiple used by Mr. Fuller was
based on the most recent four quarters' earnings for each
corporation.
- 50 -
figures of Peoples, Mr. Fuller determined the following total
equity values:
Ratio Total Value
Price-to-earnings $24,751,000
Price-to-book equity 19,344,000
Price-to-assets 21,021,000
Mr. Fuller then used the mean of the values determined using the
price-to-book equity and price-to-assets ratios to determine a
total equity value of $20,200,000. He did not include the value
determined using the price-to-earnings ratio, as he thought the
“unusually high earnings reported for the period may result in
the value of Peoples being overstated.” Finally, Mr. Fuller
applied a 10-percent marketability discount.
Mr. Fuller supported his finding of a 10-percent
marketability discount in his discussion of both marketability
and control premium factors. He concluded that little or no
marketability discount was appropriate, because the estate shares
carried significant elements of control and might command a
control premium. Mr. Fuller failed to focus on the fact that two
conceptually distinct adjustments were involved, one a discount
for lack of marketability and the other a premium for the
benefits of control. See Estate of Andrews v. Commissioner, 79
T.C. 938, 952-953 (1982). Although there may be some overlap,
because control, or lack of it, is a factor that may affect
marketability, even controlling shares in a nonpublic corporation
- 51 -
can suffer from lack of marketability, because of the absence of
a ready private placement market and the costs of floating a
public offering. See id. at 953.
We agree with Mr. Fuller's use of the guideline method and
his adjustments to reflect excess capital; however, we do not
think that his selection of guideline companies was appropriate,
in light of Peoples' thriftlike operations and earnings base.
Five of the seven guideline companies selected by Mr. Fuller were
bank holding companies engaged in a broad range of personal and
commercial banking services. Only two of the guideline companies
chosen were thrifts, and like most of the other guideline
companies, they were multibranch institutions that had
significantly greater assets than Peoples, though not by the same
order of magnitude as the banks on the VL bank list. On its
December 31, 1992, balance sheet, Peoples reported total assets
of $90.6 million; in comparison, the mean and median total asset
values of the guideline companies were $303.1 million and $323.3
million, respectively, for the comparable period.24
2. Petitioner's Expert
Petitioner relies on the expert report of James E. Magee, a
director and senior associate of Alex Sheshunoff & Co. Investment
Banking (ASC). Headquartered in Austin, Texas, ASC is nationally
24
Mr. Fuller provided asset values for six of the guideline
companies as of Dec. 31, 1992, and for the seventh as of
Dec. 31, 1993.
- 52 -
known for its valuation and mergers and acquisitions expertise in
the financial services industry and has been recognized as an
expert by Federal banking regulators, including FDIC, Federal
Reserve Bank (FRB), Office of the Comptroller of the Currency
(O.C.), and OTS. ASC has completed over 300 merger and
acquisition transactions and over 3,500 stock valuations
involving regional and community banks and thrifts.
Mr. Magee has over 30 years of experience in the banking
industry. In the first half of his career, Mr. Magee worked in
management positions at two New York banks, including one money
center bank where he was a vice president, and as a regulator
employed by the board of Governors of the Federal Reserve System,
Division of Supervision and Regulation. The latter half of Mr.
Magee's career has been spent as an appraiser and consultant
serving the banking industry exclusively. Mr. Magee holds an
M.B.A. in finance from Adelphi University in New York.
Using the guideline method, Mr. Magee valued the estate
shares at $4,497,000 ($3,000 per share). While employing the
same general approach as Mr. Fuller, there are a number of
differences in Mr. Magee's report that account for their
substantial differences of opinion regarding the fair market
value of the estate shares.
Mr. Magee's methodology for selecting guideline companies
was significantly more exacting than Mr. Fuller's. As discussed
supra, Mr. Fuller's guideline companies included five banks and
two thrifts, most of which were significantly larger than
Peoples. In contrast, Mr. Magee's selection criteria were
- 53 -
limited to thrifts comparable in size to Peoples. The emphasis
on thrifts, rather than banks, is in accordance with our finding
that Peoples, while legally chartered as a bank, more closely
resembled a thrift in its operations.
As discussed supra, the guideline company data used by Mr.
Fuller was based on publicly traded minority interests; Mr.
Magee, in contrast, used two groups of guideline companies, one
based on mergers and acquisitions of private companies, the other
based on publicly traded minority interests like that used by Mr.
Fuller. Mr. Magee looked at both minority and control
transactions because he conceded that the estate shares had
effective control.
To examine thrift pricing on a control basis, Mr. Magee
selected six thrifts (the control group) meeting the following
criteria: (1) Thrifts that sold in the Midwest, (2) return on
average assets greater than 1 percent, (3) total assets less than
$100 million, and (4) transactions that were pending or completed
between January 1 and December 31, 1992. In order to examine
thrift pricing on a minority basis, Mr. Magee selected 10 thrifts
(the minority group) meeting the following criteria: (1) Thrift
organizations in the United States, (2) total assets less than
$150 million, (3) not subject to announced or rumored
acquisition, and (4) publicly traded securities as evidenced by
listing on a major exchange [or trading market].
3. Comparison of the Experts' Reports
In performing their analyses under the guideline method,
Messrs. Fuller and Magee both focused on the same three ratios:
- 54 -
(1) Price-to-earnings, (2) price-to-book equity, and (3) price-
to-assets. However, they disagreed to some extent on the weight
to be accorded each of the three ratios. As discussed supra, Mr.
Fuller used an equal weighting of the values derived using the
price-to-book and price-to-assets ratios, while rejecting the use
of the price-to-earnings ratio over concerns that it would
overstate value. Mr. Magee used an equal weighting of the values
found using the price-to-earnings multiple and the price-to-book
ratio. Mr. Magee did not use the price-to-assets ratio in
reaching his valuation conclusion and described it as a “check
point” for the other two ratios, rather than as the “principal
determinant of the value of a controlling interest.” However,
Mr. Magee noted, the price-to-assets ratio does provide
“additional stability” to the analysis by removing the effects of
variability in earnings and book equity.
We agree with Mr. Fuller that the use of the price-to-
earnings ratio may overstate the value of the estate shares, due
to the fact that a large portion of Peoples earnings was
attributable to investments in high yielding Treasury securities.
We also think the weighted average of the price-to-book and
price-to-asset ratios will be more likely to cancel out any
anomaly in the data for either ratio. Accordingly, in valuing
the estate shares under the guideline method, we look to the
price-to-book and price-to-asset ratios.
The mean, median, high, and low values for the guideline
companies examined by Messrs. Fuller and Magee are as follows:
- 55 -
Guideline method ratios
Price/earnings Price/book Price/assets
multiple ratio ratio
Fuller
Mean 11.20 120.50% 11.90%
Median 10.40 110.30 12.10
High 15.40 171.50 16.30
Low 6.70 72.10 6.40
Magee
Control
Mean 9.16 124.14 10.38
Median 8.64 124.87 9.95
High 16.40 167.76 15.00
Low 2.74 76.19 5.41
Minority
Mean 6.42 54.73 n/a
Median 6.45 52.74 18.52
High 6.47 82.05 37.60
Low 6.35 32.38 9.50
Based on the data of their respective guideline companies,
Messrs. Fuller and Magee chose the following ratios to value the
estate shares:
Guideline method ratios used
in valuing the estate shares
Price/earnings Price/book Price/assets
Fuller 14.13* 153.7% 12.3%
Magee 5.5 65.0% not used
* Calculated, but not used in actual valuation
Differences in perception are common in questions of
valuation. The differing ratios chosen by Messrs. Fuller and
Magee to value the estate shares reveal an extreme divergence of
views. All three ratios used by Mr. Fuller exceed the respective
- 56 -
mean and median of the guideline companies; both the price-to-
earnings multiple (used but ultimately ruled out) and the price-
to-book equity ratio are near the highest values in the guideline
company data. In contrast, the price-to-earnings multiple and
price-to-book ratios selected by Mr. Magee are comparable to the
mean values from the minority group data.
While there is little difference in Mr. Fuller's guideline
company data, and Mr. Magee's control group data, we think that
Mr. Magee's criteria for the selection of comparable companies
produced a group of companies that more closely resembled the
size and operating characteristics of Peoples than Mr. Fuller's
guideline companies. Accordingly, in determining the value of
the estate shares under the guideline method, we rely on the data
supplied by Mr. Magee.
Mr. Magee did not, however, address Peoples'
overcapitalization and, unlike Mr. Fuller, did not make any
normalizing adjustments. In contrast, as discussed supra, Mr.
Fuller removed excess equity, valued equity from operations, and
then added back the excess equity. Adjustments to equity were
necessary to value Peoples properly, and we think Mr. Fuller used
a sensible approach in so doing. Accordingly, in valuing the
estate shares, we use adjusted equity and assets of $6,999,000
and $77,770,000, respectively, for purposes of the guideline
method, and $12,919,000 in excess equity before discounts.
- 57 -
We also differ with Mr. Magee on his use of ratios that more
closely resemble the minority group data than the control group
data. Inasmuch as the estate shares had effective control, we
think that they should be valued as a controlling, rather than
minority, interest. Accordingly, we value the estate shares
using the control group data.
We disagree with Mr. Fuller's optimistic assessment of
Peoples' standing among comparable institutions (or the less-
than-comparable institutions he used). Had we not removed the
excess equity in performing the guideline method, then perhaps
Peoples would be more attractive than its financials would
otherwise suggest, due solely to the value of excess equity,
which could be paid out as an extraordinary dividend. However,
when using the guideline method to value Peoples' equity from
operations (and adding back the excess capital), we think that
the attractiveness of Peoples, and of the estate shares, takes a
dramatic nosedive.
As an institution, Peoples was financially sound, but
offered an investor little hope of meaningful growth in revenues
or earnings. A number of negative factors have been discussed
supra, such as a limited market, limited product offerings,
aggressive competitors, and outdated technology. Peoples was
also hindered by its employees, who on average were at least in
their midfifties, and tended to resist change. In sum, we think
that Peoples showed little potential to be much more than what it
- 58 -
was on the valuation date; we therefore think it appropriate to
value Peoples as an enterprise at the low end of the control
group. Accordingly, for purposes of valuing the estate shares,
we use a price-to-book ratio of 77 percent and price-to-assets
ratio of 5.5 percent. Based on adjusted shareholder equity of
$6,999,000 ($2,333 per share) and adjusted assets of $77,770,000
($25,923 per share), we find a value of equity used in operations
of $5,389,230 ($1,796.41 per share) using the price-to-book
ratio, and $4,277,350 ($1,425.78 per share) using the price-to-
assets ratio. Averaging the two ratios, we find a value of
equity from operations of $4,833,290 ($1,611.10 per share). We
agree with Mr. Fuller's application of a 10-percent minority
discount to the excess equity, and, accordingly, add $11,627,100
($3,875.70 per share) of excess equity from nonoperating assets
to the value of equity from operations, producing a fair market
value of total equity of $16,460,390 ($5,486.80 per share).
Accordingly, we hold that the fair market value of 1,499 shares
of Peoples stock, before consideration of marketability concerns,
is $8,224,713.25
Mr. Magee distinguished the estate shares from the shares of
publicly traded companies due to their lack of marketability in
support of his application of a 30-percent marketability
discount. Mr. Magee cited several empirical studies that, on
25
$5,486.80 x 1,499 = $8,224,713
- 59 -
average, support the application of marketability discounts in
the range of 30 to 45 percent. Mr. Magee analyzed several
factors with respect to the marketability of the estate shares,
such as earnings quality, dividend payment history, size of the
block of stock, prices of comparable investment substitutes,
management's stock redemption policies, capitalization of the
firm, and economic factors. In his analysis he noted certain
factors in support of a discount, including Peoples' interest
rate risk, the sewer tap ban, and the modest economic growth in
Peoples' market area. Mr. Fuller also emphasized the lack of
liquidity in Peoples stock, which was not subject to any
repurchase or employee stock option plan and was not easily sold,
as evidenced by the fact that a block of 100 shares had been
offered and available for sale for more than 5 years without
eliciting any expressions of interest.
While we recognize that elements of control may enhance
marketability, we do not think that the estate shares were
rendered marketable by virtue of their effective control.
No matter who was in control, Peoples was still a small,
community bank with limited growth opportunities, capitalized
with common stock that was not publicly traded and not easily
sold privately. A buyer of the estate shares would either have
to sell the block privately, cause Peoples to make a public
offering, or seek an acquiror. Any of those three options could
take a number of months, and require significant transaction
- 60 -
costs for the services of accountants, lawyers, and investment
bankers.
Accordingly, although we recognize the estate shares'
effective control in valuing Peoples equity from operations, we
do not think that a 49.97-percent interest in a small, closely
held bank, is a readily marketable interest. Accordingly, we
apply a 30-percent marketability discount to the fair market
value of the estate shares, and hold that on the valuation date,
the estate shares had a fair market value of $5,757,296
($3,840.76 per share).
To give effect to the concessions of the parties and our
determination of the fair market value of the estate shares,
Decision will be entered
under Rule 155.