United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 15, 2006
August 22, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60700
SUCCESSION OF CHARLES T. McCORD, JR., Deceased,
CHARLES T. McCORD III and MICHAEL S. McCORD,
EXECUTORS; MARY S. McCORD, Donors,
Petitioners-Appellants,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
--------------------
Appeals from the United States Tax Court
(7048-00)
--------------------
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge.
This is an appeal from an adverse opinion and judgment of an
8-judge majority (the “Majority”) of a splintered United States Tax
Court.1 The Petitioners-Appellants (the “Taxpayers”)2 seek reversal
1
McCord v. Commissioner, 120 T.C. 358 (2003) (Halpern, J.,
joined by Wells, Cohen, Swift, Gerber, Colvin, Gale, and
Thornton, JJ. Separate opinions were filed by (1) Swift, J.,
concurring, (2) Chiechi, J., joined by Foley, J., concurring in
part and dissenting in part, (3) Foley, J., joined by Chiechi,
J., concurring in part and dissenting in part, and (4) Laro, J.,
joined by Vasquez, J., dissenting.)
2
Charles T. McCord, Jr., and Mary S. McCord were husband
and wife. Mr. McCord died in August, 2001, while this matter was
pending in the Tax Court, and his Succession, represented by two
of the Taxpayers’ four sons as testamentary co-executors, was
of the Majority’s holdings, which the Taxpayers accurately
characterize as:
(1) The aggregate fair market value of the
Taxpayers’ donated interests in a family limited
partnership, McCord Interests, Ltd., L.L.P. (“MIL”) was
$9,883,832 instead of the substantially lesser value of
$7,369,215 claimed by the Taxpayers on their returns.
(2) The Taxpayers’ charitable deductions under
§ 2522 of the Internal Revenue Code of 1986 (“I.R.C.”)
for gifts to one of two tax-exempt organizations
(collectively, “exempt donees”) must be calculated not on
the basis of the plain language of the act of gift
(“Assignment Agreement”) of January 12, 1996, but on the
Tax Court’s own gloss thereon and its determination of
the various percentage interests in MIL that —— two
months after the gifts —— were agreed on and accepted by
all donees (but not by Taxpayers) in a post-gift sharing
arrangement (the “Confirmation Agreement”) entered into
in March of 1996.
(3) The taxable value of the gifts made by the
Taxpayers to (a) their four sons individually (“the
Sons”) and (b) generation skipping tax trusts (“GST
trusts”) of which the Sons were trustees (collectively,
“the non-exempt donees”) must be calculated not only on
the basis of the Tax Court’s independently determined
fair market value and the percentage interests in MIL of
the residuary exempt donee, but also without a reduction
in fair market value of the gifts to the non-exempt
donees for the actuarially determined liability, assumed
by such donees contemporaneously with the gifts, for any
additional estate taxes that might be incurred under §
2035 (and, in the case of Mr. McCord, that were incurred)
if either or both of the Taxpayers should die within
three years following the date of the gifts3 —— death
within that post-gift period being a condition subsequent
substituted for the decedent as a petitioner-appellant.
3
Such potential § 2035 estate tax liability was expressly
assumed pro rata by the non-exempt donees as conditions to their
entitlement to the subject gifts. None disputes that the taxable
values of the gifts made to the non-exempt donees were properly
reduced by the gift taxes incurred by the Taxpayers,
responsibility for which also was assumed by these donees.
2
that would terminate the donors’ (and thus the non-exempt
donees’) present obligations to pay any and all eventual
§ 2035 estate taxes.
For the reasons explained below, we reverse the Tax Court and
remand this case to it with instructions to enter judgment for the
Taxpayers consistent with this opinion.
I. FACTS & PROCEEDINGS
A. Background
With the exception of the ultimate fact question of the
taxable and deductible values of the limited partnership interests
in MIL that comprise the completed, irrevocable inter vivos
donations (the “gifts”) made by the Taxpayers to the exempt and
non-exempt donees on January 12, 1996, the discrete facts framing
this case are largely stipulated or otherwise undisputed. Having
lived in Shreveport, Louisiana for most of their adult lives, and
having accumulated substantial and diversified assets, these
octogenarian Taxpayers embarked on a course of comprehensive family
wealth preservation and philanthropic support planning, including
transfer tax aspects of implementing such a plan. This was done in
consultation with Houston-based specialists in that field.
Effective June 30, 1995, the Taxpayers had joined with the
Sons and an existing ordinary partnership (“McCord Bros.” formed
and owned equally by the Sons) to create MIL, a Texas limited
partnership. In creating MIL, (1) each Taxpayer had contributed
$10,000 for which each had received one-half of the Class A limited
3
partnership interest in MIL; (2) each Son had contributed $40,000
for which he had received one-fourth of the general partnership
interest in MIL; (3) each Taxpayer had contributed identical
interests in substantial business and investment assets (valued at
$6,147,192 per Taxpayer) for which each Taxpayer had received equal
portions (but less than all) of the Class B limited partnership
interest in MIL, representing in the aggregate just over 82 per
cent of the value of that partnership; and (4) McCord Bros. had
contributed interests in similar business and investment assets
(valued at $2,478,000), for which it had received the remaining
Class B limited partnership interest in MIL, representing roughly
16.6 per cent of the value of that partnership.4 As a result, MIL
was initially owned as follows:
Class and Contributor Contribution Percentage
Interest
Class A limited partners:
Mr. McCord $ 10,000 ––
Mrs. McCord 10,000 ––
4
The Taxpayers’ contributions to MIL for their Class A
limited partnership interests and the Sons’ contributions for
their general partnership interests were made in cash. The
values of the in-kind interests in business and investment assets
contributed to MIL in exchange for Class B limited partnership
interest were based on appraisals by William H. Frazier, a
principal in the Houston-based valuation and consulting firm of
Howard, Frazier, Barker, Elliott, Inc. Mr. Frazier’s testimony
was submitted in the trial of this case as an expert witness on
behalf of the Taxpayers.
4
General partners:
Charles III 40,000 0.26787417
Michael 40,000 0.26787417
Frederick 40,000 0.26787417
Stephen 40,000 0.26787417
Class B limited partners:
Mr. McCord 6,147,192 41.16684918
Mrs. McCord 6,147,192 41.16684918
McCord Brothers 2,478,000 16.59480496
Total $14,952,384 100.0
As found by the Majority, MIL’s partnership agreement (the
“Partnership Agreement”) provides, inter alia:
MIL will continue in existence until
December 31, 2025 (the termination date),
unless sooner terminated in accordance with
applicable terms of the partnership agreement.
Any class B limited partner may withdraw
from MIL prior to its termination date and
receive payment equal to the fair market value
(as determined under the partnership
agreement) of such partner’s class B limited
partnership interest (the put right).
Partners may freely assign their
partnership interests to or for the benefit of
certain family members and charitable
organizations (permitted assignee).
A partner desiring to assign his interest
to someone other than a permitted assignee
must first offer that interest to MIL and all
other partners and assignees, who have the
right to purchase such interest at fair market
value (as determined under the Partnership
agreement).
The term “partnership interest” means the
interest in the partnership representing any
partner’s right to receive distributions from
5
the partnership and to receive allocations of
partnership profit and loss.
Regardless of the identity of the
assignee, no assignee of a partnership
interest can attain the legal status of
partner in MIL without the unanimous consent
of all MIL partners.
MIL may purchase the interest of any
[exempt donee] (i.e., a permitted assignee of
a partnership interest that is a charitable
organization that has not been admitted as a
partner of MIL) at any time for fair market
value, as determined under the partnership
agreement (the call right).
For purposes of the partnership
agreement, (1) a class B limited partner’s put
right is disregarded for purposes of
determining the fair market value of such
partner’s class B limited partnership
interest, and (2) any dispute with respect to
the fair market value of any interest in MIL
is to be resolved by arbitration as provided
in Exhibit G attached to the partnership
agreement.
Limited partners generally do not
participate in the management of the
partnership’s affairs. However, limited
partners do have veto power with respect to
certain “major decisions”, most notably
relating to voluntary bankruptcy filings.5 In
addition, if any two of the [Sons] are not
serving as managing partners, class B limited
partners have voting rights with respect to
certain “large dollar” managerial decisions.
Limited partners also have access to certain
partnership financial information.6
5
A class A limited partnership interest does not carry with
it a “Percentage Interest” in MIL (as that term is defined in the
Partnership Agreement).
6
McCord, 120 T.C. at 362-63.
6
MIL’s partnership agreement was amended and restated in
October 1995, prospectively effective November 1, 1995. Twenty
days after the effective date of this act, Taxpayers, as owners of
all Class A limited partnership interests in MIL, donated these
interests to The Southfield School Foundation (the “Foundation”),
a § 501(c)(3) tax exempt organization. All original MIL partners
—— general, Class A limited, and Class B limited —— executed an
Assignment of Partnership Interests and Addendum Agreement (the
“Southfield Agreement”) to implement this gift. The Southfield
Agreement declares that “all of the partners of [MIL] desire that
[the Foundation] become a Class A limited partner of [MIL] upon
execution of this assignment of partnership interest” and that “all
consents required to effect the conveyance of the Assigned
Partnership Interest and the admission of assignee as a Class A
limited partner of [MIL] have been duly obtained and/or evidenced
by the signatures hereto.” After executing the Southfield
Agreement, the Taxpayers were left with only their Class B limited
partnership interests in MIL. (The donation to the Foundation is
not at issue in this litigation; we discuss it only to note
differences in its details from those of the Assignment Agreement,
which was used to effectuate the Taxpayers’ below-discussed
donations of Class B interests in MIL to the exempt and non-exempt
donees.)
On January 12, 1996, through a combination of simultaneous
taxable gifts to the non-exempt donees and charitable-deduction
7
gifts to the exempt donees, the Taxpayers irrevocably disposed of
all their Class B limited partnership interests in MIL, retaining
no interest whatsoever in the Partnership. They did this by
joining with all non-exempt donees and two new exempt donees,
namely, the Community Foundation of Texas, Inc. (“CFT”), and the
Shreveport Symphony, Inc. (the “Symphony”), in the execution of the
Assignment Agreement. In it, the Taxpayers transferred all of
their Class B limited partnership interests in MIL to the exempt
and non-exempt donees in varying portions, expressly relinquishing
all dominion and control over the partnership interests thus
assigned and transferred. The Assignment Agreement differs from
the Southfield Agreement in that (1) it does not contain parallel
language admitting the new donees as partners, and (2) two of the
limited partners of MIL —— McCord Bros. and the Foundation —— did
not join in the execution of the Assignment Agreement in any
capacity.
At the heart of this case lies the question of the value of
the Class B limited partnership interests in MIL thus transferred
by the Taxpayers to the exempt and non-exempt donees via the
Assignment Agreement of January 12, 1996. We have observed that
these gifts divested the Taxpayers of their entire interest in MIL
then remaining. It did so, however, not in percentages of interest
in MIL, however, but in dollar amounts of the net fair market value
of MIL, according to a sequentially structured “defined value
clause”:
8
DONEE GIFT
1. First, to the Generation A dollar amount of fair market
Skipping Tax Trusts (“GST value in interest of MIL equal
trusts”) to the dollar amount of
Taxpayers’ net remaining
generation skipping tax
exemption, reduced by the
dollar value of any transfer
tax obligation owed by these
trusts by virtue of their
assumption thereof.
2. Second, to the Sons $6,910,932.52 worth of fair
market value in interest of
MIL, reduced by the dollar
value of (1) the interests in
MIL given to the GST trusts,
and (2) any transfer tax
obligation owed by the Sons by
virtue of their assumption
thereof.
3. Third, to the Symphony $134,000.00 worth of such in
interest of MIL.7
4. Last, to CFT The dollar amount of the
interests of the Taxpayers in
MIL, if any, that remained
after satisfying the gifts to
the GST trusts, the Sons, and
the Symphony.
All gifts were complete on execution of the Assignment
Agreement on January 12, 1996. No other agreements —— written or
oral, express or implied —— were found to have existed between the
Taxpayers and (1) the Sons, (2) the GST trusts, (3) the Symphony,
or (4) CFT, as to what putative percentage interest in MIL belonged
7
$7,044,932.52 less $6,910,932.52; but only if the full
difference of $134,000 remained; otherwise, any actual, lesser
amount remaining after satisfying the gifts to the GST trusts and
the Sons.
9
to, or might eventually be received by, any of the donees under the
dollar-value formula clause. Rather, because the interests donated
by the Taxpayers to the GST trusts, the Sons, and the Symphony were
expressed in dollars, “fair market value” is defined in the
Assignment Agreement in terms of the applicable “willing-
buyer/willing-seller” test specified in the applicable Treasury
Regulation.8
As reflected in the allocation provisions of the Assignment
Agreement, the Taxpayers conditioned their gifts to the non-exempt
donees on the presently binding assumption by those donees of
responsibility for payment of any and all federal and state gift
taxes resulting from the taxable gifts of January 12, 1996. In
addition, those donees assumed responsibility for the future
payment of only those federal estate taxes that would be assessed
on the amount of Taxpayers’ gift taxes pursuant to § 2035, unless
the condition subsequent expressed in that section should occur,
i.e., unless the Taxpayer in question should survive for three
years following the completion of the gift.9
On February 28, 1996, Mr. Frazier completed his appraisal of
the various classes of partnership interest in MIL as of the
January 12, 1996 date of the gifts. He determined that the value
8
Treas. Reg. § 25.2512-1
9
§ 2035(b) specified that if a taxpayer were to die within
three years following the date of the gifts, an amount equal to
the gift taxes paid on such gifts would be deemed included in his
or her gross estates and subjected to federal estate tax.
10
on that date had been $89,505 for each one per cent (1%) of Class
B limited partnership interest in the hands of a donee immediately
following completion of the gifts.
In March 1996, all donees entered into the Confirmation
Agreement, based on that appraisal. In essence, the Confirmation
Agreement translated the dollar value of each gift made under the
Assignment Agreement’s defined value formula into percentages of
interest in MIL, as follows:
1. GST trusts 8.24977954% each
2. The Sons 11.05342285% each
3. The Symphony 1.49712307%
4. CFT 3.62376573%
Total 82.33369836%
The Taxpayers, who two months earlier had divested themselves
of all interest in MIL, were not parties to the Confirmation
Agreement or otherwise involved in it. Neither did the Assignment
Agreement “call for,” i.e., either expressly or impliedly, specify
any method or manner that the donees must or were expected to
employ in determining how to equate their respective dollar-amount
gifts to percentages of interest in MIL.10 Moreover, each donee was
represented by independent counsel and each had the express right
10
The Commissioner’s appellate brief uses the term “called
for” in reference to the post-gift acts of the donees under the
Confirmation Agreement, as though the Assignment Agreement
required these acts. It does no such thing; it leaves
everything post-gift to the independent discretion of each donee.
11
to review the Frazier appraisal before entering into the
Confirmation Agreement. In addition, any exempt donee that might
question or disagree with the Frazier appraisal had the right to
retain its own appraiser and, if still dissatisfied, to resolve
questions of value and allocation of interests in MIL through
binding arbitration.
CFT elected to retain outside counsel who, in consultation
with CFT’s president and its director of development (both of whom
were lawyers with extensive experience in reviewing appraisals of
closely-held interests), independently analyzed the Frazier
appraisal in light of the then-current circumstances. CFT
subsequently accepted the Frazier appraisal. Although CFT did not
retain an independent appraiser, its officers and outside counsel
expressed confidence in Mr. Frazier and his firm, found his
methodology appropriate, and concluded that the value of CFT’s
percentage interest in MIL proposed in the Confirmation Agreement
was an acceptable reflection of the dollar value of the interest in
MIL that CFT had received from the Taxpayers in January. Neither
the Majority Opinion nor any of the four other opinions filed in
the Tax Court found evidence of any agreement —— not so much as an
implicit, “wink-wink” understanding —— between the Taxpayers and
any of the donees to the effect that any exempt donee was expected
to, or in fact would, accept a percentage interest in MIL with a
12
value less than the full dollar amount that the Taxpayers had given
to such a donee two months earlier.11
Late in June of 1996, approximately three months after all
donees had entered into the Confirmation Agreement, MIL exercised
its “call right” under the Assignment Agreement to redeem the
exempt donees’ interests in MIL. Even though only months had
elapsed since the January gifts had been appraised, MIL contracted
with Mr. Frazier to update his original appraisal as of June 29,
1996, to determine the then-current fair market value of the
interests to be redeemed. After that updated appraisal was
completed, MIL, the Symphony, and CFT reviewed it and agreed to
accept its figure of $93,540 as the fair market value of each one
per cent interest in MIL to be redeemed. This in turn produced
slightly increased redemption prices of $140,041 for the Symphony’s
1.497 per cent interest (originally $134,000) and $338,967 for
CFT’s 3.624 per cent interest (originally $324,283). None of the
opinions filed in this case contends that the Taxpayers had
anything at all to do with MIL’s exercise of the call right or with
11
The lone exception is a gratuitous generalization in a
footnote of the Majority opinion, in reference to the
Confirmation Agreement, to which the Taxpayers were not parties.
McCord, 120 T.C. at 373 n.9 (stating that “it is against the
economic interest of a charitable organization to look a gift
horse in the mouth.”).
13
the redemption prices paid by MIL to the Symphony and CFT for these
interests.12
B. Taxation of 1996 Gifts
In 1997, the Taxpayers timely filed federal gift tax returns
for calendar year 1996, reflecting the aggregate values of their
January 12, 1996 gifts as $2,475,896.40 and $2,482,604.84,
respectively. These taxable values (before adjustment for annual
exclusions of $60,000 per Taxpayer and charitable contribution
deductions of $209,173 per Taxpayer) were determined on the basis
of the Frazier appraisal for that date, in which the gross fair
market value of the respective gifts were reduced by, among other
things, (1) total federal gift taxes payable by the Taxpayers on
their gifts to the non-exempt donees, payment of which was assumed
by these donees, and (2) the actuarially determined present value
of the non-exempt donees’ contractually assumed liability for the
additional estate taxes that would be incurred pursuant to the
current version of § 2035 and the date-of-gift estate tax rates,
should the triggering condition subsequent of the subject Tax Code
provision occur, i.e., should either or both of the Taxpayers fail
to survive for three years after January 12, 1996.13
12
See id. at 365 n.2 (“[P]etitioners were not involved in
the allocation of the gifted interest among the assignees
pursuant to the Confirmation Agreement.”).
13
On their gift tax returns, the Taxpayers claimed annual
exclusions totaling $60,000 on gifts to non-charitable donees and
charitable deductions on gifts to the charitable donees in the
amount of $209,173, reducing their respective amounts of taxable
14
C. Deficiency
The Commissioner of Internal Revenue (the “Commissioner”)
issued deficiency notices on Taxpayers’ 1996 gift taxes in amounts
of $2,053,525 and $2,047,903, respectively. These amounts resulted
from the Commissioner’s proposed increases in the values of taxable
gifts for 1996 of $3,740,904 and $3,730,439, respectively. The
Commissioner based these asserted increases on his contentions that
the Taxpayers had (1) understated the fair market value of the
donated interests in MIL, and (2) erred in discounting the fair
market value of those interests by the mortality-based, actuarially
calculated present value of the non-exempt donees’ assumed
obligations for additional estate taxes under § 2035. The
Commissioner’s fair market value of a one-percent interest in MIL
was $171,749, almost double the Taxpayers’ one-percent figure of
$89,505.
D. Proceedings
Shortly after these notices of deficiency were issued, the
Taxpayers filed a petition in the Tax Court contesting the
Commissioner’s proposed deficiencies. The case was tried several
months later before Judge Maurice B. Foley, largely on a joint
stipulation of facts filed on the day of trial. The principal
contested matters were those raised by the Commissioner in his
deficiency notices: (1) the values of the Taxpayers’ interest in
gifts to $2,206,724 and $2,213,432.
15
MIL given under the dollar-value formula clause to the exempt and
non-exempt donees on January 12, 1996, and (2) the propriety of
discounting the gross fair market value of the gifts to the non-
exempt donees on the basis of the actuarially determined negative
present value of these donees’ assumed liability for additional
estate taxes of the Taxpayer or Taxpayers who might die within
three years following the gifts. In their joint stipulations, the
parties agreed that the Commissioner had the burden of proof
pursuant to § 7491. The Majority expressly accepted that
evidentiary standard.14
In the trial before Judge Foley, the main thrust of the
Commissioner’s attack was grounded in the equitable doctrines of
form-over-substance and violation-of-public-policy. The
Commissioner did not advance an argument about the way that the
Assignment Agreement should be interpreted or about the role of the
Confirmation Agreement, if any, in determining fair market value.
Rather, he asked the court to disregard the plain wording of the
Assignment Agreement, as well as the undisputed facts of the
relationships among the parties and their actions vis-à-vis one
another —— actions both taken and not taken —— and to decide the
case on one or both of these doctrinaire principles.15 Judge Foley
14
McCord, 120 T.C. at 369; see also U.S.T.C. R. Prac. & P.
142(a)(1)-(2).
15
It appears that the Commissioner also referenced the
doctrine of reasonable-probability-of-receipt in a brief to the
Tax Court, but he did not pursue or rely on it there or here.
16
determined the outcome of the case on the stipulated evidentiary
standard, holding that the Commissioner had failed to meet his
burden of proof on any contested issue of fact or law and therefore
could not prevail.
Approximately two years after that trial, the Acting Chief
Judge of the Tax Court issued an unusual order that resulted in a
proceeding that resembles an en banc rehearing. In essence, the
case was taken away from Judge Foley retroactively and reassigned
to Judge James S. Halpern who, on the same day, filed an opinion on
behalf of the Majority. He was joined by seven other Tax Court
judges, including the Acting Chief Judge. The Majority disagreed
with Judge Foley’s original opinion, which had turned on the
Commissioner’s failure to meet his burden of proof, and held
instead for the Commissioner.
The Majority’s holdings for the Commissioner were not,
however, based on any of the overarching equitable doctrines that
the Commissioner had advanced at trial. Instead, the Majority
crafted its own interpretation of the Assignment Agreement and gave
controlling effect to the post-gift Confirmation Agreement, all
based entirely on a theory that the Commissioner had never
espoused. At the core of the novel methodology thus conceived and
implemented, sua sponte, by the Majority is the consistently
rejected concept of postponed determination of the taxable value of
a completed gift —— postponed here until, two months after the
Taxpayers gifts were completed, the donees decided among themselves
17
(with neither actual nor implied participation of or suasion by the
donors) how they would equate the dollars-worth of interest in MIL
given to them on January 12, 1996, with percentages of interests in
MIL decided two months later by the donees in the Confirmation
Agreement. Stated differently, the Majority in essence suspended
the valuation date of the property that the Taxpayers donated in
January until the date in March on which the disparate donees
acted, post hoc, to agree among themselves on the Class B limited
partnership percentages that each would accept as equivalents of
the dollar values irrevocably and unconditionally given by the
Taxpayers months earlier. As shall be seen, we hold that the
Majority’s unique methodology violated the immutable maxim that
post-gift occurrences do not affect, and may not be considered in,
the appraisal and valuation processes.
The Taxpayers timely filed their notice of appeal.
II. ANALYSIS
A. Standard of Review
The complex appellate review required in this gift tax case
implicates (1) the interpretation and effect of contractual
agreements, (2) the nature of property interests transferred by
gift, (3) determination of the fair market value of such interests,
and (4) special law rules governing that kind of evaluation
exercise, including the types and percentages of discounts that may
be applied. Thus, our standard of review here cannot be covered
18
adequately by rotely reciting the ubiquitous single-sentence mantra
that “we review factual determinations for clear error and legal
determinations de novo.” The particularized standard of review
applicable in this case is accurately stated in the Taxpayers’
appellate brief:
An appellate court reviews a trial court’s
conclusions of law de novo and draws its own conclusions
in place of those of the trial court. See American Home
Assurance Co. v. Unitramp Ltd., 146 F.3d 311, 313 (5th
Cir. 1998); Estate of Dunn v. Commissioner, 301 F.3d 339,
348 (5th Cir. 2002). Where a question of fact, such as
valuation, requires legal conclusions, this Court reviews
those underlying legal conclusions de novo. See Adams v.
United States, 218 F.3d 383, 386 (5th Cir. 2000). The
determination of the nature of the property rights
transferred is a question of state law that this Court
reviews de novo. Id. (holding valuation subject to de
novo review because “to arrive at a reasonable conclusion
regarding the value of the [transferred] property . . . ,
one must first determine the rights afforded to the owner
[recipient] of such property by the applicable state
law”). The [Majority Opinion’s] failure to properly
define the nature of the property rights transferred
under the fixed-value formula in the Assignment Agreement
and its [rejection of the Taxpayers’ reduction of] the
value of the interests transferred by the value of the
[non-exempt] donees’ contractual obligation to pay estate
tax liability are questions of law subject to de novo
review by this Court. Id. (“Inasmuch as the trial
court’s ultimate finding here is predicated on a legal
conclusion regarding the rights inherent in the property,
its valuation is subject to de novo review.”). If this
Court ignores the Assignment Agreement and determines
that the interest to be valued are those set forth in the
Confirmation Agreement,16 the Tax Court’s factual
findings in the determination of the fair market value of
the interests transferred are reviewed for clear error.
See McInvale v. Commissioner, 936 F.2d 833, 836 (5th Cir.
1991).
16
Emphasis ours.
19
B. Burden of Proof
As we noted above, the parties stipulated (and the Tax Court
accepted for purposes of this case) that, pursuant to § 7491, the
Commissioner had the burden of proof. We review this case on
appeal accordingly.
C. Merits
1. Commissioner’s Theory on Appeal.
At the outset, we reiterate that, although the Commissioner
relied on several theories before the Tax Court, including
doctrines of form-over-substance, violation-of-public policy, and,
possibly, reasonable-probability-of-receipt, he has not advanced
any of those theories on appeal. Accordingly, the Commissioner has
waived them,17 and has instead —— not surprisingly —— devoted his
efforts on appeal solely to supporting the methodology and holdings
of the Majority, as succinctly summarized in the Taxpayers’
appellate brief:
[t]he Majority held that (1) the interests transferred
[by the Assignment Agreement of January 12, 1996] were
assignee interests in [MIL]; (2) the Majority was not
required to follow the terms of the Assignment Agreement
in determining the fair market value of the interests in
the partnership transferred by [the Taxpayers]; (3) the
fair market value of the total interests transferred was
$9,883,832, or $120,046 per 1% interest; (4) the value of
17
See Webb v. Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th
Cir. 1996)(holding that a party who fails to raise an issue in
its brief waives the right to appellate review of that issue);
see also Fed.R.App.P. 28(a)(9)(A) (stating that appellant’s brief
must contain “appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies”).
20
the interests transferred should be based on the value
determined by the Majority on a per unit basis times the
percentage interests determined by the donees in a
Confirmation Agreement reached by the donees two months
after the gifts were made; and (5) the value of the [non-
exempt] donees’ contractual obligation to pay estate tax
liability [under § 2035] could not be deducted in
determining the value of [the Taxpayers’] gift.18
We address each of these holdings, albeit in a different sequence.
2. Nature of Rights Assigned
We gather that, in arguing at trial that some of the discounts
employed by the Taxpayers’ expert in valuing the interests donated
were erroneous or inapplicable, the Commissioner specifically
opposed a discount grounded in Mr. Frazier’s contention that the
Taxpayers had transferred less than full limited partners
interests. The Commissioner does not, however, advance such a
contention on appeal; so it too is waived, and we do not address
that issue.19 Our failure to address it should not, however, be
viewed as either agreeing or disagreeing with the Majority’s
determination on this point. Rather, as shall be shown, we have no
need to reach it.
3. Fair Market Value of Interests in MIL Transferred by the
Taxpayers
Contributing to the framework of our review in this section is
the sometimes overlooked fact that this family-partnership case is
not an estate tax case, but a gift tax case. Thus, the aggressive
18
Emphasis ours.
19
See supra note 17 and accompanying text.
21
and sophisticated estate planning embodied here is not typical of
the estate plans that have produced the vast majority of post-
mortem estate tax valuation cases.20 Also helping to frame our
review is the fact that this is not a run-of-the-mill fair market
value gift tax case. Rather, as recognized by the Majority and by
Judges Chiechi and Foley in dissent, the feature that most
fractionated the Tax Court here is the Taxpayers’ use of the
dollar-formula, or “defined value,” clause specified in the
Assignment Agreement (the gift instrument, not either the original
or the amended partnership agreement nor the Confirmation
Agreement) to quantify the gifts to the various donees in dollars
rather than in percentages, the latter being more commonly
encountered in gifts and bequests that parcel out interests in such
assets as corporate stock, partnerships, large tracts of land, and
the like.
a. Fair Market Value Must Be Determined on Date of
Gift.
As detailed above, the Taxpayers irrevocably and gratuitously
donated their entire remaining interests in MIL, constituting in
the aggregate 82.33369836 per cent of that partnership. They did
so on January 12, 1996 by executing the Assignment Agreement, which
specified in dollars the quantum of all gifts of interests in MIL,
except for the one to CFT which was a residual donation of whatever
20
Cf., e.g., Strangi v. Commissioner, 417 F.3d 468 (5th
Cir. 2005).
22
interest remained —— if any —— after all other gifts had been
satisfied. Mr. Frazier appraised the fair market value of the
interests given at $89,505 per one per cent ($7,369,215 for the
Taxpayers’ entire remaining interests in MIL),21 and the Taxpayers
filed gift tax returns calculated on these values.
The Commissioner’s deficiency notices were based on a total
value of the interest given, before adjustments, of $14,140,730,
almost double the Frazier values used by the Taxpayers in preparing
their gift tax returns. The Commissioner calculated his asserted
total value by using $171,749 as the value of a one-percent
interest in MIL.
The Commissioner introduced the expert opinion of Mukesh
Bajaj, Ph.D. This expert’s bottom line was that the fair market
value of a one-percent interest in MIL on the date of the gift was
$150,665.54, producing a total fair market value of $12,404,851.12.
Thus, the Commissioner’s own expert calculated the aggregate fair
market value of all gifts to be $1,735,879 less than the value
asserted by the Commissioner in his deficiency notices. Even
though Dr. Bajaj disagreed with the values returned by the
Taxpayers, he also disagreed substantially with the values asserted
by the Commissioner in his delinquency notices.22
21
The Commissioner’s appellate brief uses $7,369,303.
22
This exemplifies a practice of the IRS that we see with
disturbingly increased frequency, e.g., a grossly exaggerated
amount asserted in a notice of deficiency. See, e.g., Caracci v.
Commissioner, --- F.3d --- (5th Cir. 2006), 2006 WL 1892600.
23
The Taxpayers adduced the testimony of Mr. Frazier and the
documentary evidence he offered in support of his opinion,
reiterating in detail his appraisal methodology and his conclusion
that $89,505 was indeed the fair market value of one per cent of
the interests donated by the Taxpayers as of January 12, 1996. The
Taxpayers thereby provided the evidentiary underpinning of their
proffered values.
Fast forward two years: Judge Foley’s judgment for the
Taxpayers based on the Commissioner’s failure to meet his burden of
proof is vacated and replaced by the Majority’s. The Majority’s
opinion substantively treats neither the nature of the
Commissioner’s burden of proof nor whether he met it. Instead, the
Majority confects its own methodology grounded in significant part
in the donees’ post-gift Confirmation Agreement. The Majority
first proceeds independently to appraise the donated property,
eventually reaching a value precisely halfway between those of Mr.
Frazier and Dr. Bajaj.23 As we hereafter hold, as a matter of law,
that the methodology employed by the Majority in determining the
taxable and non-taxable values of the various donations constitutes
legal error, the results of the Majority’s independent appraisal of
23
The value of $120,046 per one-percent interest produced
by the Majority has a de minimis $39 variance from the
arithmetically precise median between the dueling experts’
respective one-percent values: (a) $89,505 plus $150,665 =
$240,170; (b) $240,170 divided by 2 = $120,085; (c) $120,085
minus $120,046 = $39. Thus the Majority split this almost $10
million baby precisely halfway between the experts’ respective
values.
24
the donated interests in MIL and their values for gift tax
purposes, become irrelevant to the amount of the gift taxes owed by
the Taxpayers.24
b. Re-Allocating Values of Gifts Based on Post-Gift
Acts of Donees.
Under the instant circumstances, the ultimate-valuation “fact”
is at most a mixed question of fact and law, and thus a legal
conclusion.25 Particularly when, as here, the determination of the
fair market value for gift tax purposes requires legal conclusions,
our review is de novo.26 Indeed, it is settled in this circuit and
others that a trial court’s methodology in resolving fact questions
is a legal issue and thus reviewable de novo on appeal.27
24
Even though (1) Judge Swift concurred, (2) Judges Chiechi
and Foley separately concurred in part and dissented in part (and
joined each others opinions), and (3) Judge Laro dissented and
was joined by Judge Vasquez, none of these five judges advocated
substantially different valuation methodologies than the one
employed by the Majority to determine date-of-gift values before
the Majority proceeded to apply the provisions of the
Confirmation Agreement to such values so as to re-allocate
percentage interests. This we assume is because they (at least
the four judges who totally or partially dissented) would never
have reached the question of fair market value, because they were
either sustaining the Taxpayers for the Commissioner’s failure to
meet his burden of proof, or sustaining the Commissioner under
one or more of the equitable doctrines he advanced at trial but
has abandoned on appeal.
25
See Estate of Dunn v. Commissioner, 301 F.3d 339, 357
(5th Cir. 2002).
26
See Adams v. United States, 218 F.3d 383, 386 (5th Cir.
2000).
27
See, e.g., Estate of Dunn, 301 F.3d at 357; Adams, 218
F.3d at 386 (“Inasmuch as the trial court’s ultimate finding here
is predicated on a legal conclusion regarding the rights inherent
25
The Majority’s key legal error was its confecting sua sponte
its own methodology for determining the taxable or deductible
values of each donee’s gift valuing for tax purposes here. The
core flaw in the Majority’s inventive methodology was its violation
of the long-prohibited practice of relying on post-gift events.28
Specifically, the Majority used the after-the-fact Confirmation
Agreement to mutate the Assignment Agreement’s dollar-value gifts
into percentage interests in MIL. It is clear beyond cavil that
the Majority should have stopped with the Assignment Agreement’s
plain wording. By not doing so, however, and instead continuing on
to the post-gift Confirmation Agreement’s intra-donee concurrence
on the equivalency of dollars to percentage of interests in MIL,
the Majority violated the firmly-established maxim that a gift is
valued as of the date that it is complete; the flip side of that
maxim is that subsequent occurrences are off limits.29
In this respect, we cannot improve on the opening sentence of
Judge Foley’s dissent:
Undaunted by the facts, well-established legal precedent,
and respondent’s failure to present sufficient evidence
to establish his determinations, the majority allow their
in the property, its valuation is subject to de novo review.”).
28
See, e.g., Ithaca Trust Co. v. United States, 279 U.S.
151 (1929); Estate of McMorris v. Commissioner, 243 F.3d 1254
(10th Cir. 2001); Estate of Smith v. Commissioner, 198 F.3d 515,
522 (5th Cir. 1999)(“[T]he value of the thing to be taxed must be
estimated as of the time when the act is done.”)(quoting Ithaca
Trust Co., 279 U.S. at 155)(emphasis in original).
29
See supra note 28.
26
olfaction to displace sound legal reasoning and adherence
to the rule of law.30
Judge Foley’s “facts” are those stipulated and those adduced
(especially the experts’ testimony) before him as the lone trial
judge, including the absence of any probative evidence of
collusion, side deals, understandings, expectations, or anything
other than arms-length, unconditional completed gifts by the
Taxpayers on January 12, 1996, and arm’s-length conversions of
dollars into percentages by the donees alone in March. Judge
Foley’s “well-established legal precedent” includes, without
limitation, constant jurisprudence that has established the
immutable rule that, for inter vivos gifts and post-mortem bequests
or inheritances alike, fair market value is determined, snapshot-
like, on the day that the donor completes that gift (or the date of
death or alternative valuation date in the case of a testamentary
or intestate transfer).31 And, Judge Foley’s use of “olfaction” is
an obvious, collegially correct synonym for the less-elegant
vernacular term, “smell test,” commonly used to identify a decision
made not on the basis of relevant facts and applicable law, but on
the decision maker’s “gut” feelings or intuition. The particular
olfaction here is the anathema that Judge Swift identifies
pejoratively in his concurring opinion as “the sophistication of
30
McCord, 120 T.C. at 416 (Foley, J., concurring in part
and dissenting in part) (emphasis added).
31
See, e.g., Estate of Smith, 198 F.3d at 522.
27
the tax planning before us.”32 The Majority’s election to rule on
the basis of this olfaction is likewise criticized by Judge Laro,
dissenting in part, as the
Majority Appl[ying] Its Own Approach:
To reach the result that the majority desires, the
majority decides this case on the basis of a novel
approach neither advanced nor briefed by either party
. . . .33
Judge Foley also disagrees with the Majority —— and rightly
so, we conclude —— for basing its holding on an interpretation of
the Assignment Agreement and an application of the Confirmation
Agreement that the Commissioner never raised. To this criticism we
add that the Majority not only made a contractual interpretation of
the Assignment Agreement that rests in part on the non sequitur
that it uses the term “fair market value” without including the
modifying language “as finally determined for tax purposes,”34 but
also indicated a palpable hostility to the dollar formula of the
defined value clause in that donation agreement. This is
exacerbated by the Majority’s lip service to, but ultimate
disregard of, the immutable principal that value of a gift must be
determined as of the date of the gift. The Majority violates this
32
McCord, 120 T.C. at 404 (Swift, J., concurring).
33
Id. at 425 (Laro, J., dissenting) (emphasis in original).
34
Id. at 418-419 (Foley, J., concurring in part and
dissenting in part) (“There is no material difference between
fair market value ‘determined under Federal gift tax valuation
principles’ and fair market value ‘as finally determined for
Federal gift tax purposes.’”).
28
doctrine when it relies in principal part on the post-gift actions
of the donees in their March 1996 execution of the Confirmation
Agreement. Judge Foley correctly notes that the Majority erred in
conducting
[A] tortured analysis of the [A]ssignment [A]greement
that is, ostensibly, justification for shifting the
determination of transfer tax consequences from the date
of the transfer [January 12, 1996]...to March 1996 (i.e.,
the date of the [C]onfirmation [A]greement). The
majority’s analysis of the [A]ssignment [A]greement
requires that [Taxpayers] use the Court’s valuation to
determine the [dollar] value of the transferred
interests, but the donees’ appraiser’s valuation to
determine the [percentages of] interests transferred to
the charitable organizations. There is no factual,
legal, or logical basis for this conclusion.35
We obviously agree with Judge Foley’s unchallenged baselines
that the gift was complete on January 12, 1996, and that the courts
and the parties alike are governed by § 2512(a). We thus agree as
well that the Majority reversibly erred when, “in determining the
charitable deduction, the majority rely on the [C]onfirmation
[A]greement without regard to the fact that [the Taxpayers] were
not parties to this agreement, and that this agreement was executed
by the donees more than 2 months after the transfer.”36 In taking
issue with the Majority on this point, Judge Foley cogently points
out that “[t]he Majority appear to assert, without any authority,
35
Id. at 416-17 (emphasis added).
36
Id. at 417-18 (citing Ithaca Trust Co., 279 U.S. at 155;
Estate of McMorris, 243 F.3d at 1259-60; Estate of Smith, 198
F.3d at 522; Propstra v. United States, 680 F.2d 1248, 1250-51
(9th Cir. 1982)).
29
that [the Taxpayers’] charitable deduction cannot be determined
unless the gifted interest is expressed in terms of a percentage or
a fractional share.”37 As implied, the Majority created a valuation
methodology out of the whole cloth. We too are convinced that
“[r]egardless of how the transferred interest was described, it had
an ascertainable value” on the date of the gift.38 That value
cannot, of course, be varied by the subsequent acts of the donees
in executing the Confirmation Agreement. Consequently, the values
ascribed by the Majority, being derived from its use of its own
imaginative but flawed methodology, may not be used in any way in
the calculation of the Taxpayers’ gift tax liability.
In the end, whether the controlling values of the donated
interests in MIL on the date of the gifts are those set forth in
the Assignment Agreement based on Mr. Frazier’s appraisal of
$89,505 per one per cent or those reached by the Majority before it
invoked the Confirmation Agreement (or even those used by the
Commissioner in the deficiency notices or those reached by the
Commissioner’s expert witness for that matter), have no practical
effect on the amount of gift taxes owed here. Nevertheless, given
the Majority’s non-erroneous rejection of the Commissioner’s
experts’s values and, as we shall show, its own legal error, not
applying a discount to account for the present negative value of
37
Id. at 418.
38
Id.
30
the non-exempt donees’ assumed liability for § 2035 estate taxes
(even before the Majority translated the defined value clause’s
dollars into percentages by use of the Confirmation Agreement), the
fair market values applicable in this case are, by a process of
elimination, those determined by the Frazier report and used by the
Taxpayers in preparing their gift tax returns for 1996. In sum, we
hold that the Majority erred as a matter of law. Accordingly, the
taxable values used by the Taxpayers in preparing their gift tax
returns must stand, subject only to the question of their having
been arrived at, in part, by applying the actuarially determined
present value of the non-exempt donees’ assumed responsibility for
payment of estate taxes, if any, under § 2035. We address that
issue now.
4. Effect on Present Fair Market Values of Potential Estate
Taxes Under § 2035
Taxes paid by a non-exempt donee on the value of property
gratuitously transferred reduces the taxable value of such gift.39
In calculating the taxable value of their 1996 gifts, the Taxpayers
employed a variation on the venerable “net gift” theme for reducing
that taxable value. They did so in calculating not only the
amounts of correct gift taxes assumed by the non-exempt donees, but
also in calculating the mortality-driven discount that a willing
buyer would require to account for additional estate taxes that
these donees would have to pay, pursuant to § 2035, if the
39
See, e.g., Rev. Rul. 75-72, 1975-1 C.B. 310.
31
Taxpayers or either of them should die within three years following
the gift. The Majority held for the Commissioner, who contended
that this particular factor is “too” speculative to be recognized
in calculating the net gift. It appears that the dissenters and
concurrers would have agreed with the Majority on this point. We,
however, disagree with the Majority and therefore reverse its
ruling on this issue too.
There is nothing speculative about the date-of-gift fact that
if either or both Taxpayers were to die within three years
following the gift (as did Mr. McCord), the non-exempt donees would
have been (and, coincidently, were) legally bound to pay the
additional estate tax that could result from the provisions of §
2035. It is axiomatic contract law that a present obligation may
be, and frequently is, performable at a future date. It is also
axiomatic that responsibility for the future performance of such a
present obligation may be either firmly fixed or conditional, i.e.,
either absolute or contingent on the occurrence of a future event,
a “condition subsequent.” And, it is axiomatic that any
conditional liability for the future performance of a present
obligation is —— to a greater or lesser degree —— “speculative.”
The issue here, though, is not whether § 2035's condition
subsequent is speculative vel non, but whether it is too
speculative to be applicable, a very elastic yardstick indeed.
Conditions subsequent come in a variety of flavors: A future
event that is absolutely certain to occur, such as the passage of
32
time; a future event, like the act of a third party that is not
absolutely certain to occur, but nevertheless may be a “more ...
certain prophec[y]”40; a possible, but low-odds, future event, such
as the reversion of an interest in property if the unmarried and
childless life tenant not only survives the transferor, but herself
bears children who live to the age of majority and at least one of
whom survives the transferor, as in Robinette v. Helvering,41
undeniably a “less ... certain prophec[y] of the future.”42 And
there are all degrees and shades of certainty along the
“speculative” continuum, from absolute certainty to essentially
total impossibility.
The issue presented here regarding the degree of certainty of
the assumed obligation under § 2035, is a legal one (which we
review de novo) To what conditions subsequent are the exempt
donees’ assumed § 2035 obligations subject, and thus
“speculative”?; and, in combination, do these conditions
subsequent’s respective degrees of uncertainty make the contingent
obligation in question too speculative to be credited for purposes
of valuing the gift to the non-exempt donee? The judicial
determination of how much is too much is a subjective one; yet it
remains a mixed question of law and ultimate fact, to be reviewed
40
Ithaca Trust Co., 279 U.S. at 155.
41
318 U.S. 184 (1943).
42
Ithaca Trust Co., 279 U.S. at 155.
33
de novo on the basis of an analysis of all the relevant and
material discrete facts. Here, the discrete facts are not in
dispute; only the extent to which, together, they make the
probability of the occurrence of § 2035's condition subsequent too
speculative to credit.
Putting ourselves in the shoes of the ubiquitous “willing
buyer,” we must first identify each factor that, by future change,
could affect the likelihood that the non-exempt donees’ will
eventually have to pay the additional § 2035 estate tax. After
that, we must identify which of those factors a willing buyer would
(and we, as a matter of law, must) take into consideration in
deciding whether it is too speculative for him to insist on its
being used in reaching a price that the seller is willing to
accept. It is in this context that we must make subjective
determinations as to (1) where, on that continuum between absolute
certainty and virtual uncertainty the non-exempt donees’
contractually assumed responsibility for § 2035 estate taxes falls,
and then (2) whether it is so speculative that our willing buyer
would not insist on its being taken into consideration as a
discount that a willing seller must accept.
Those donees’ future performance of their present § 2035
obligation was subject to a number of factors and conditions at the
time in January 1996 that the gifts were made. And, some of these
factors are not totally predictable or quantifiable:
34
(1) The amount of gift taxes owed by the Taxpayers
for these gifts.
(2) Whether there would be an estate tax or
essentially identical death-related transfer tax in
existence at the time of the death(s) of a Taxpayer or
Taxpayers.
(3) Whether the amount of gift taxes on the 1996
gifts would be taxable under § 2035, or some similar
successor I.R.C. section, in the estate of a Taxpayer who
dies within three years following the gift.
(4) Whether, if such an estate tax would exist at
the future death of a Taxpayer and, under it, the amount
of the 1996 gift taxes are subjected to the marginal
estate tax rate by § 2035 or any successor provision,
that rate will be greater than, less than, or the same as
the rate that was in effect on January 12, 1996.
(5) Whether, if § 2035 or its equivalent is in
effect at the death or deaths of the Taxpayers, it will
still be conditioned on survivorship for three years
after the 1996 gifts, and if so, the period of
survivorship will be the same, shorter, or longer than
three years.
(6) Whether the interest rate that a willing buyer
and willing seller of the transferred partnership
interests would agree to use in discounting their price
to account for the negative value of the seller’s
potential obligation under § 2035 would be the same rate
of interest as it was on the date of the gifts.
(7) What would be the additional discount in value
for the § 2035 obligation, based on actuarial odds that
the measuring life would exceed the three-year
survivorship trigger that automatically terminates the §
2035 obligation.
We consider each of these factors in turn.
Regarding the continued existence of (1) the estate tax law in
its date-of-gift form and content, including § 2035, and (2) the
estate tax rates in their date-of-gift percentages, this and other
courts have repeatedly held that potential future changes in, or
35
the continued existence of, the federal income tax law in general
and of the capital gains tax in particular, are not contingencies
that a willing buyer would take into consideration.43 For purposes
of our willing buyer/willing seller analysis, we perceive no
distinguishable difference between the nature of the capital gains
tax and its rates on the one hand and the nature of the estate tax
and its rates on the other hand. Rates and particular features of
both the capital gains tax and the estate tax have changed and
likely will continue to change with irregular frequency; likewise,
despite considerable and repeated outcries and many aborted
attempts, neither tax has been repealed. Even though the final
amount owed by the Taxpayer as gift tax on their January 1996 gifts
to non-exempt donees has yet to be finally determined (depending,
as it does, on the final results of this case), we are satisfied
that the transfer tax law and its rates that were in effect when
the gifts were made are the ones that a willing buyer would insist
on applying in determining whether to insist on, and calculate, a
discount for § 2035 estate tax liability.
The same is true for the interest rate at which a willing
buyer would discount the § 2035 obligation to determine its present
value. The rate of interest is not, however, a matter of
speculation. § 7520 dictates precisely the rate of interest to be
43
See, e.g., Estate of Dunn, 301 F.3d at 351; Estate of
Jameson v. Commissioner, 77 T.C.M. (CCH) 1383 (1999), rev’d on
other grounds, 267 F.3d 366 (5th Cir. 2001).
36
applied; and here, it is the rate that was applicable on the date
of the gift. That date is, after all, the date on which our
mythical willing buyer is deemed to have made his offer and had it
accepted. The interest tables promulgated by the government bind
the Commissioner and the Taxpayers alike.
This leaves for our examination only § 2035's condition
subsequent —— the ipso facto three-year expiration of liability for
additional estate tax if the Taxpayer in question lives that long
after making the gift. We must decide whether, in combination with
the other above-identified factors, § 2035's three-year repose
pushes the obligation assumed by the non-exempt donees beyond the
point on the “speculative” continuum at which this concededly
uncertain factor becomes too speculative. Even though neither we
nor the Tax Court has addressed this precise question before,44 we
conclude on plenary review that it does not.
First, the Commissioner has never contended that Mr. Frazier’s
arithmetic in calculating the net taxable value of the January 1996
gifts was erroneous; only that, inter alia, no discount should have
been taken for the § 2035 factor. Neither did the Commissioner
44
McCord, 120 T.C. at 401-02 (stating “[t]he specific
question before us is whether to treat as part of the sale
proceeds (consideration) received by each [Taxpayer] on the
transfer of the gifted interest any amount on account of the
[non-exempt donees’] obligation pursuant to the [A]ssignment
[A]greement to pay the [§] 2035 tax that would be occasioned by
the death of that [Taxpayer] within 3 years of the valuation
date. We have not faced that specific question before.”)
(emphasis added).
37
dispute that, if legally applicable, the estate and gift tax laws
and rates then in existence were those that were applied; nor that
the correct interest rate for the present-value discount was used;45
nor that the ages of the Taxpayers or the actuarially determined
mortality factors for the Taxpayers at those ages were correct.46
Again, then, the only legal question that remains unanswered in
our de novo review is: Was the limitation of three years on the
Taxpayers’ exposure to the additional estate taxes imposed by §
2035 (which the non-exempt donees assumed), when viewed in pari
materia with all other relevant factors and circumstances, too
speculative to be included when Mr. Frazier calculated the net
taxable value of those 1996 gifts? We answer this question in the
negative, because we are convinced as a matter of law that a
willing buyer would insist on the willing seller’s recognition that
—— like the possibility that the applicable tax law, tax rates,
interest rates, and actuarially determined life expectancies of the
Taxpayer could change or be eliminated in the ensuing three years
—— the effect of the three-year exposure to § 2035 estate taxes was
sufficiently determinable as of the date of the gifts to be taken
45
I.R.C. § 7520.
46
Table 80CNSMT, in Treas. Reg. § 20.2031-
7A(e)(4)(effective April 30, 1989 through May 1, 1999); see
Ithaca Trust Co., 279 U.S. at 155 (stating that property
interests that terminate automatically at the death of the
lifetime owner “must be estimated by the mortality tables.”).
38
into account.47 And, after all, it is the willing buyer/willing
seller test that we are bound to apply.48
III. Conclusion
For the foregoing reasons, we reverse the rulings and judgment
of the Tax Court as embodied in the Majority’s opinion.
Accordingly, we hold that (1) given the Majority’s reversible
errors in evaluating the donated interest and using them in
calculating gift taxes by (a) employing the Confirmation Agreement
in its own calculations and (b) rejecting the § 2035 estate tax
liability to discount the appraised value, the taxable value of the
47
Our holding today approving use of the “mortality-
adjusted” present value of the § 2035 contingent liability for
estate taxes is not weakened by the cases cited by the Majority.
It concedes that “neither Armstrong Trust v. United States, [132
F.Supp. 2d 421 (W.D.Va. 2001)], nor Murray v. United States, [687
F.2d 386 (Ct. Cl. 1982)], is binding on us, and, indeed, the
facts of both cases are somewhat different from the facts before
us today.” Armstrong Trust involved the donees’ statutory
liability under § 6324(a)(2) for all § 2035 estate taxes, a
significantly more speculative contingency than the precise
condition and precisely determinable amount of § 2035 estate
taxes in this case. In Murray, the Court of Claims considered a
substantially different and more speculative contingent liability
than the instant donees for the “gross up” three-year absolute
liability of the Taxpayers under § 2035. Even more inapposite is
the 63-year-old Supreme Court opinion in Robinette v. Helvering,
318 U.S. 184 (1943), a case involving the value of a highly
speculative reversion to the donor, which was contingent not only
on his outliving his 30-year-old daughter, but also on her having
children, at least one of whom attained the age of 21. That
venerable case casts no shadow on our conclusion here.
48
Treas. Reg, § 25.2512-1; see, e.g., Estate of Newhouse v.
Commissioner, 94 T.C. 218, (1990)(citing Estate of Bright v.
United States, 658 F.2d 999, 1006 (5th Cir. 1981)); see also
Shepherd v. Commissioner, 283 F.3d 1258, 1262 n.7 (11th Cir.
2002).
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interests in MIL given by the Taxpayers to the Sons and the GST
Trusts is not those determined by the Tax Court but are those
determined and used by the Taxpayers, viz., $6,910,932.52; (2) the
Taxpayers are entitled to a charitable deduction for the interests
in MIL transferred to CFT under the Assignment Agreement in the
amount of $324,345.16, being the base fair market value as
determined by Mr. Frazier ($7,369,277.67), less the amounts given
to the non-exempt donees ($6,910,932.51) and less the amount given
to the Symphony ($134,000); (3) the January 12, 1996 taxable values
of the interests in MIL given to the non-exempt donees were
properly determined by applying, among other discounts, the
actuarially determined date-of-gift present “value” of the
obligation assumed by these donees to pay § 2035 estate taxes; and
(4) the resulting fair market value of all interests transferred by
the Taxpayers under the Assignment Agreement on January 12, 1996,
were, respectively, $2,475,896.40 and $2,482,604.82; after annual
exclusions and charitable contribution deductions, $2,206,724 and
$2,213,432, respectively, as taxable gifts.
Accordingly, we reverse the holding of the Tax Court, and we
remand this case to that court for entry of judgment for the
Petitioners, consistent with this opinion, including, without
limitation, assessment of all costs to the Respondent.
REVERSED and REMANDED for entry of consistent judgment.
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