Tax Law Update: July/August 2022

Gladys T. Black

• Merger negotiations aren’t appropriate to the worth of public shares utilized to fund GRAT—Baty v. Commissioner (U.S.T.C. Docket No. 122-1621, June 23, 2021, March 24, 2022) entails a valuation controversy in the context of funding a grantor retained annuity believe in (GRAT). Daniel R. Baty funded a GRAT with shares of a publicly traded company (Company) even though serving as Company’s chairman of the board and amid negotiations among Company and other third functions with regards to Company’s opportunity merger/acquisition. Negotiations regarding the merger began in the very first 50 percent of 2013, and Daniel participated in them. Daniel funded a 2-12 months GRAT utilizing shares in Organization on Jan. 14, 2014 and valued the contribution to the GRAT primarily based on the suggest of the superior and minimal public share value of Company’s shares on the date of contribution (that is, the methodology espoused in Treasury Rules Section 25.2512-2(b)). The conditions of the GRAT represented the annuity payments as a proportion of the first benefit of the asset contributed (that is, the annuity payments were “self-adjusting”).

A merger arrangement in between Corporation and a competitor was finally achieved, with the terms of the deal finalized weeks afterwards in mid-February 2014, and the deal was publicly introduced on
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Feb. 20, 2014. The merger wasn’t finished right until July 31, 2014, right after the events labored by means of shareholder acceptance, regulatory acceptance, 3rd-occasion consents and other hurdles.  

The Inside Earnings Service assessed a tax deficiency premised on the idea that the contribution to the GRAT shouldn’t have been valued dependent on the signify of the high and small share selling price on day of contribution but rather on the investing value when the merger actually took area (extra than six months afterwards). For the reason that of the details at hand and the gross underpayment in the annuity payments, Daniel was liable for an intentional undervaluation (and couldn’t avail himself of provisions relating to incorrect valuations and the adjustment clause in the GRAT as to the annuity payments), was matter to present tax on the full worth of the transfer to the GRAT (owing to the annuity failing to be a “qualified annuity” below Inside Income Code Area 2702) and was topic to penalties. In Main Counsel Assistance 201939002, the IRS Chief Counsel responded to the points of the scenario by formally opining that a pending merger need to be taken into account in valuing shares of a publicly traded firm for gift tax purposes (citing Treas. Regs. Area 25.2512-2(e)).

In the long run, Daniel submitted a movement for summary judgment in favor of applying the mean high and lower buying and selling cost of Organization inventory for valuation reasons, and the govt conceded to Daniel prior to issuance of a selection on the motion. In his motion, Daniel argued that: (1) the valuation methodology was effectively proven for cases involving publicly traded inventory in the reward tax context and specially cited scenarios that famous that community stock charges mirrored possible merger negotiations, (2) events taking put subsequent to a present just can’t be utilized to price the reward in hindsight,
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(3) the “hypothetical ready buyer” that is utilized as the touchstone for present tax valuation would not have recognised about the merger negotiations, (4) Treas. Regs. Part 25.2512-2(e) is inapplicable, (5) the merger wasn’t “practically certain” to take place, as was the situation in the “anticipatory assignment of income” instances cited in CCA 201939002, and (6) the IRS’ proposed valuation methodology is unworkable. 

• IRS problems proposed regs on calculating deductible quantities of selected expenditures by estate—On June 24, the IRS issued proposed restrictions (proposed regs) (REG-130975-08) under IRC Segment 2053. The proposed regs present steerage on suitable use of present worth ideas in identifying amounts deductible by an estate for funeral costs, administration bills and promises in opposition to the estate. Specifically, the proposed regs call for calculating the current worth of an price that is deductible less than Section 2053 that is not paid out or anticipated to be compensated on or ahead of the third anniversary of decedent’s loss of life. That is, there is a 3-12 months grace time period in advance of a present price calculation ought to be made with regard to a Part 2053 deductible cost. The current price calculation is issue to adjustment if the true date of payment differs from the estimate applied. The current benefit calculation will be made making use of the prolonged-term or mid-phrase relevant federal level in the month of death based on the expected date of payment. The proposed regs also need a supporting statement demonstrating calculations of present value to be filed with the decedent’s Sort 706. 

The proposed regs further offer direction as to the deductibility of fascination costs accruing on taxes and penalties owed by an estate. They say that curiosity that accrues on estate tax deferred under IRC Area 6166 (for instance, deferral out there for specific estates holding interests in intently held businesses) would no extended be deductible. Interest below IRC Area 6601 for late tax federal payments won’t be deductible and regarded truly and always incurred except due to the executor’s carelessness or disregard of applicable guidelines or fraud, supplanting the procedures in Profits Ruling 79-252 and Rev. Rul. 81-154.

Desire on other financial loans incurred by the estate will be deductible supplied the curiosity satisfies the present demands in Treas. Regs. Sections 20.2053-1(b)(2) and 20.2053-3(a) (that is, the interest will have to be “bona fide” and “actually and always incurred” in the administration of the estate). Interest accruing on mortgage obligations incurred by an estate would adhere to these exact rules—such interest is deductible to the extent it’s “bona fide” and “actually and automatically incurred.” However, the proposed regs established forth components that aid a obtaining that an desire cost is “bona fide” (under Treas. Regs. Area 20.2053-1(b)(2)). Two of the things noted are: (1) the phrases of the personal loan (whether involving related or unrelated functions), which include any prepayment penalty, are reasonable given all specifics and conditions and are equivalent to an arm’s-length mortgage transaction, and (2) the personal loan term doesn’t prolong outside of what is reasonably important. These new things enormously reduce the deductibility of desire on “Graegin loans” because these kinds of loans are not prepayable and could not have conditions comparable to an arm’s-length transaction.

Treas. Regs. Sections 20.2053-4(b) and (c) make it possible for an estate to deduct the price of claims and counterclaims in a similar matter and the worth of unpaid claims totaling not extra than $500,000. The proposed regs established forth new prerequisites for an appraisal with respect to such deductions. Previously, the appraisal necessities had been tied to the needs of a “qualified appraisal” for a charitable donation under IRC Area 170. Under the proposed regs, publish-loss of life situations transpiring just before a deduction is claimed as perfectly as situations reasonably expected to happen must be taken into account for valuing the deduction. Certain people and entities who are relevant to the decedent are also disqualified from performing as appraiser. 

The proposed regs also incorporate new specifications as to the deductibility of a decedent’s own ensure. For these kinds of a assure to be deductible, the decedent need to have acquired consideration reducible to money price in exchange for the promise.  

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