First, a simple question: How much would you pay for
property worth $100,000, if you must spend $25,000 (to fix
it, commissions, special taxes or whatever) prior to
collecting your $100,000? Certainly not more than $75,000
or less, if you wanted to make a profit.
Yet, over the years the IRS and the courts just didn't
understand basic economics in the real world, (and how to
answer the above question).
Now they do. Here's the story.
Second, let's set up the scenario that is repeated almost
every time business owners want to sell their businesses.
If you are a potential buyer, generally you are willing to
pay more for the individual assets owned by the corporation
than the corporation's stock. Why?... You do this for two
reasons: (1) to obtain a higher tax basis for the low-basis
assets owned by the corporation and (2) to avoid hidden and
contingent corporate liabilities. Now, let's look at the
seller's side of the coin: After the acquired company sells
its assets, it will owe corporate income tax (remember,
corporations do not enjoy the luxury of low capital gains
rates) on any gain. On the other hand, if the shareholders
sell their stock, they will pay less tax (bless those low
15% capital gains rates). But the low-tax basis of the
assets stays with the corporation. Sorry, when the buyer
(really your acquired corporation) sells these assets, the
corporation will be socked with those high corporate tax
rates on the gain.
Despite this reality, up until now the IRS and the courts
have never allowed a reduction in the value of corporate
stock for potential taxes due on a future asset sale or
corporate liquidation. Sound the victory bell -- two 1998
cases allowed such a discount for the first time. Best of
all, the well-reasoned decisions are still the law today.
Case #1. Estate of Artemus Davis, (110 TC 530-1998).
Davis, one of the founders of the Winn-Dixie grocery chain
created a holding company to own some of his publicly
traded Winn-Dixie shares. Davis gave about a 26 percent
interest in the holding company to each of his two sons. At
the time of the gift, the holding company owned $70 million
of Winn-Dixie stock and $10 million of other assets.
You'll love this part. Davis claimed three discounts on his
gift tax returns to report the transfers: (1) lack of
marketability, (2) minority interest; and (3) for the
corporate taxes due if the Winn-Dixie stock were to be
sold. The total of these discounts reduced the value of the
gifted stock by more than 60 percent when compared to the
real dollar value of the holding company's assets.
The IRS rejected the valuation and assessed additional gift
taxes of $5.2 million. Ouch! Davis fought the IRS and when
he died, his estate continued the fight. Thumbs up, the Tax
Court held that a discount for taxes must be allowed. The
court saw no way the holding company could avoid the taxes
and allowed discounts totaling 50 percent of the value of
the assets.
Post this article on the wall. When you want to transfer
your business for tax purposes, reread it. Hey, that's
about $500,000 off of every $1 million your business is
worth. (A little side note to blow our CPA's firm horn, the
valuation department of our office has been successfully
taking advantage of the same three-discount strategy for 20
years.)
Case #2 Irene Eisenberg, (155 F3d 50 1998). In this case,
the corporation owned real estate that it rented to third
parties. The Second Circuit concluded that a similar
discount (like the Davis case) for taxes was appropriate in
valuing stock of a holding company.
And here's two more reasons to keep this article handy: (1)
We often use a family limited partnership (FLIP) "to beat
up the IRS legally" when a client owns real estate and/or
marketable securities and wants to transfer (taking
discount in the 35% to 40% range) them during life as a
gift or for estate tax purposes. So if you have a
significant amount of investment property, look into a FLIP.
(2) When a client owns a family business and wants to
transfer it to younger family members, a powerful tax
strategy we use is to combine a valuation discount with an
intentionally defective trust (IDT). The little-known tax
result of an IDT is that the owner of the family business
(usually Dad) can pass the business tax-free (no income,
gift or estate tax). Yes, it's true... No tax to Dad... No
tax to the kids who wind up owning the business.
Bonus: Dad maintains absolute control of the business for
as long as he lives.
----------------------------------------------------
Irv Blackman is both an experienced CPA and lawyer. He
founded Blackman & Kallick, the largest independent CPA
firm in Illinois, and is the founding Chairman of the Board
of New Century Bank of Chicago, Illinois. His website is:
http://www.taxsecretsofthewealthy.com . He is the author of
8 books, and is published in 59 trade magazines in the US.
If you want to contact Irv, please visit the website or
call 888-278-3623.