Family limited partnerships (and similar entities), while useful in an estate planning strategy for high-net-worth clients, are often hotly contested by the IRS for their ability to transfer wealth within a family and minimize transfer taxes in the process. However, when properly executed, creating a business entity to hold assets that would otherwise be subject to transfer taxation can provide a valuable (and completely viable) strategy for minimizing transfer taxes.
As the recently decided Purdue Tax Court case can illustrate, if the family business entity is formed for legitimate non-tax reasons and managed appropriately, transfer taxes can be minimized even if minimizing these taxes was also part of the rationale for creating the entity.
The Purdue Case: Facts
Mr. and Mrs. Purdue had five children and multiple grandchildren and great-grandchildren, along with a potential estate that was worth about $28 million—well in excess of the current $5.49 million per person estate tax exemption amount. They funded a Purdue Family LLC with approximately $22 million in marketable securities and other assets and simultaneously created a trust to benefit the Purdue’s descendants and spouses.
Over time, the trust was funded with interests in the LLC in proportion to the gift tax annual exclusion each year, and each beneficiary had the right to withdraw up to the gift tax annual exclusion amount or a per capita share of the assets transferred each year. The LLC’s operating agreement provided several non-tax reasons for creating the LLC, including (1) avoiding fractionalizing ownership, (2) keeping the assets within the extended family, (3) protecting the assets from future unknown creditors and (4) providing flexibility in managing the assets that would be unavailable in other entities.
When Mr. Purdue died, he created a bypass trust, a qualified terminable interest property (QTIP) trust and a GST-exempt trust, each of which owned a portion of the LLC. Mrs. Purdue (the decedent) and her husband had retained the right to income and distributions from the LLC assets, although the decedent had approximately $3.25 million outside of the LLC and trusts.
After the decedent’s death, the IRS attempted to collect over $4 million in estate taxes and challenged the LLC structure. Trust beneficiaries and the QTIP trust loaned the estate funds to pay the estate tax, and the estate attempted to deduct interest paid on the loan, which the IRS challenged.
Why the Strategy Worked
Generally, under IRC Section 2036, property transferred to a trust in which a decedent holds an ownership interest is included in his or her gross estate unless that property is transferred for adequate consideration. Further, the estate was required to show that there were valid non-tax reasons for creating the family LLC. The IRS challenged the estate on this point, finding instead that the LLC was created primarily to transfer wealth to the next generation while avoiding transfer taxes.
The Tax Court disagreed, however, finding that the seven non-tax reasons for forming the LLC were compelling. Those reasons were: (1) relieving the decedent of the burden of managing the investments, (2) consolidating the investments with a single advisor to reduce volatility under a written investment plan, (3) educating the children to jointly manage an investment company, (4) to avoid repetitive asset transfers among multiple generations, (5) to create common ownership of assets for efficient management and meeting minimum investment requirements, (6) to provide voting and dispute resolution rules and transfer restrictions and (7) to provide the children with a minimum annual cash flow.
The Tax Court found that these were legitimate non-tax reasons so that the LLC interests were not included in the decedent’s estate. Importantly, however, the LLC was actually managed according to the management agreement—in fact, the loan from the QTIP trust was only made because the operating agreement required unanimity in making financial decisions and one beneficiary refused to make the LLC assets available for paying the estate tax.
The Purdue family LLC was managed like a legitimate business—the children heard presentations from the LLC’s investment manager, approved annual cash distributions and generally operated the business according to the operating agreement. Further, the family was not financially dependent upon the LLC –the decedent had sufficient funds outside of the LLC for her living expenses at her death.
Importantly, the LLC funds were maintained separately from the family’s personal assets and the Purdues were in good health at the time the LLC was created (so that it could not be inferred that the LLC was merely an attempt to avoid estate tax liability).
Therefore, despite being motivated by minimizing transfer taxes through valuation discounts available in the business context, the LLC was formed for legitimate non-tax reasons. The assets were transferred to the LLC in a bona fide sale and could not be included in the decedent’s estate.
Although a family business structure can seem like a simple way to avoid transfer taxes, as the Purdue case illustrates, the IRS is likely to challenge such a structure—making it crucial that the business is formed for non-tax reasons and operated as a legitimate business.
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Originally published on Tax Facts Online, the premier resource providing practical, actionable and affordable coverage of the taxation of insurance, employee benefits, small business and individuals.