2001 Tax Ct. Memo LEXIS 299 | Tax Ct. | 2001
2001 Tax Ct. Memo LEXIS 299">*299 Decisions will be entered for petitioners.
MEMORANDUM FINDINGS OF FACT AND OPINION
FOLEY, JUDGE: By notices dated March 15, 2000, respondent determined a 1992 Federal gift tax deficiency of $ 53,808 and
FINDINGS OF FACT
When the petitions were filed, K. Robert Dailey II was a resident of Harris County, Texas, where, in 1997, his mother, Elma Middleton Dailey, had died, and Mr. Dailey had received an appointment to be her executor. On December 2, 1982, Mrs. Dailey's husband died, leaving to her, among other things, the following:
2001 Tax Ct. Memo LEXIS 299">*300 Number of Value per Total
_________ _________ _____
Company Shares Share Value
_______ ______ _____ _____
Exxon Corp. 11,108 $ 33.63 $ 373,562
American Telephone
& Telegraph Co. (AT&T) 400 65.75 26,300
On October 20, 1992, Mrs. Dailey executed a will, a Revocable Living Trust (Trust), and an Agreement of Limited Partnership (Agreement) of Elma Middleton Dailey FLP. The will provided that Mrs. Dailey's residuary estate would pass to the Trust, from which her son would receive the corpus outright.
Upon execution of the Agreement, Mrs. Dailey took a 1-percent general and a 98-percent limited partnership interest, and Mr. Dailey received a 1-percent limited partnership interest. On November 13, 1992, Mrs. Dailey contributed, to the FLP, 400 AT&T, 20,000 Exxon, and 895 Bell South Corp. shares. Mr. Dailey did not contribute any assets to the FLP. On December 4, 1992, the Texas Secretary of State filed the FLP's Certificate of2001 Tax Ct. Memo LEXIS 299">*301 Limited Partnership.
On December 8, 1992, Mrs. Dailey signed a letter which stated that by "the terms of the Elma Middleton Dailey Family Limited Partnership, this letter shall be sufficient evidence of my transfer and conveyance to you of the following limited partnership interest", giving 45-, 15-, and 38-percent interests to Mr. Dailey, his wife, and the Trust, respectively. On that date, the FLP had $ 1,267,619, consisting of:
Number of Value per Total Value
_________ _________ ___________
Company Shares Share
_______ ______ _____
Exxon Corp. 20,000 $ 60.19 $ 1,203,750
AT&T 400 47.94 19,175
Bell South 895 49.94 44,694
On March 16, 1995, Mrs. Dailey appointed Mr. Dailey as the FLP managing partner. On July 26, 1995, he replaced her as the trustee of the Trust and FLP general partner, and her 1-percent general partnership interest became a limited one.
On January 10, 1997, Mrs. 2001 Tax Ct. Memo LEXIS 299">*302 Dailey died, when the FLP had $ 1,047,603, consisting of:
Number of Value per Total Value
_________ _________ ___________
Company Shares Share
_______ ______ _____
Exxon Corp. 10,000 $ 102.88 $ 1,028,750
American
Veterinary Corp. 1,000 10.88 10,875
Olde Money
Market Fund 7,978 1.00 7,978
The FLP had substantial unrealized capital gains due to the increase in the value of the Exxon stock. On April 17, 1997, Mrs. Dailey's attorney filed, and respondent received, a gift tax return reflecting the gifts of the 45-and 15-percent limited partnership interests to Mr. Dailey and his wife. On the gift tax return, Mrs. Dailey reported a 40-percent discount from the net asset value (NAV) of the partnership's assets.
OPINION
The FLP was validly formed pursuant to Texas law, and we do not disregard it for tax purposes. See
The parties agree that, pursuant to section 7491(a), petitioners have introduced credible evidence, and respondent shall have the burden of proof, relating to the valuation issue.
Fair market value is the price at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts.
Mrs. Dailey gave Mr. Dailey a 1-percent limited partnership interest on formation, but the FLP had no assets on that date. Mrs. Dailey made gifts of 45-and 15-percent limited partnership interests to her son and daughter-in-law, respectively, and thus retained 39 percent in the trust at death. The parties stipulated, however, that Mrs. Dailey retained 40 percent. Respondent inexplicably does not contend that the initial 1-percent limited partnership interest transferred to Mr. Dailey had gift tax consequences at formation or funding.
Both parties agree that the given and retained interests were, on December 8, 1992, and January 10, 1997, worth their proportionate share of the NAV of $ 1,267,619 and $ 1,047,603 for gift and estate tax purposes, respectively. They disagree, however, about the size of the minority and marketability discounts. Both parties' experts compared2001 Tax Ct. Memo LEXIS 299">*305 the FLP to closed-end mutual funds, which trade at a discount to NAV, but disagreed on the amounts of the discounts. Petitioners' expert, citing published data, opined that the aggregate discount is 40 percent for lack of marketability, control, and liquidity and testified that he considered the significant amount of unrealized capital gains relating to the Exxon stock.
Respondent's expert, on the other hand, relied in part on an unpublished study that he coauthored and, in a revised report submitted at trial, increased the marketability discount purportedly substantiated by his unpublished study from 12.5 percent to 14.1 percent. Respondent's expert opined that an aggregate discount of 15.72 percent on December 8, 1992, and 13.51 percent on January 10, 1997, should be applied. At trial, respondent's expert testified that he could not recall reviewing the Agreement and, although he believed that unrealized capital gains are "an important source of discounts", he did not review the documents to determine if the FLP had any such gains. Respondent's expert's testimony was contradictory, unsupported by the data, and inapplicable to the facts.
We are "not bound by the opinion of any expert2001 Tax Ct. Memo LEXIS 299">*306 witness when that opinion is contrary to our own judgment."
Contentions we have not addressed are moot, irrelevant, or meritless.
To reflect the foregoing,
Decisions will be entered for petitioners.