Whether the adjustment is permitted is decided by the forum, not by the data. What the data can support is a second question, and it is weaker than most published commentary suggests.
Start a conversation with the Valuation Concierge, already scoped to discounts and premiums. Pick a starting point, or describe the matter directly.
Discounts and premiums are level-of-value adjustments, which is a different axis from the standard of value and from the premise. That is why ‘fair value means no discounts’ is a category error rather than a close call: a standard is a definition, an adjustment operates on the base value, and whether the definition permits the adjustment is a third and separate legal question that different states answer differently within the same two words. ASA BVS-VII, which by its own preamble must be followed in all valuations developed by members of the American Society of Appraisers, states the mechanical point at II.A: ‘A discount has no meaning until the conceptual basis underlying the base value to which it is applied is defined.’ Establish the base value and who defined it, and the availability question answers itself. Skip that step and the percentage is unmoored.
Two conceptual points and the four regimes that answer the availability question differently.
BVS-VII is a standard rather than a guideline — mandatory for ASA members, unlike the Society’s Procedural Guidelines — and it puts the sequence beyond argument: ‘A discount has no meaning until the conceptual basis underlying the base value to which it is applied is defined.’ II.B says the same for premiums, and III.A adds that the purpose and applicable standard of value ‘may indicate the need to account for differences between the base value and the value of the subject interest.’ A discount quoted without its base is not a figure — it is a fragment.
BVS-VIII IV.E requires it separately: ‘The level of value, such as marketable minority or nonmarketable minority, must be defined.’ The 2022 glossary carries the fuller ladder — strategic control, financial control, marketable minority, nonmarketable minority. Standard, premise and level are three obligations, not one. Discounts and premiums live on the third, which is precisely why they are not a property of any standard and why a statute has to speak to them explicitly if it means to bar them.
MBCA §13.01, amended in 1999 to add the language, is enacted in state after state as fair value determined ‘Without discounting for lack of marketability or minority status.’ Florida is flat (Fla. Stat. §607.1301(5)(c)); Virginia and Maine carry an articles-amendment exception (Va. Code §13.1-729; 13-C M.R.S. §1301(4)(C)). The map moves: Colorado codified the Model Act definition effective 1 July 2020 (C.R.S. §7-113-101(3)) after reaching the same result judicially in Pueblo, and Florida’s old shareholder-count threshold has been repealed. Read against official code sources in September 2026.
Friedman v. Beway Realty Corp., 87 N.Y.2d 161, 661 N.E.2d 972 (N.Y. 1995), holds that a minority discount ‘would result in minority shares being valued below that of majority shares, thus violating our mandate of equal treatment of all shares of the same class in minority stockholder buyouts.’ But New York permits a discount for lack of marketability — Friedman itself remitted for recalculation of one. It was a BCL §623 dissenters’ appraisal, and it held the same fair value analysis governs §623 and §1118 alike, so the split runs through both proceedings.
Brown v. Brown, 348 N.J. Super. 466 (App. Div.), certif. denied, 174 N.J. 193 (2002), held that neither a marketability nor a minority discount applies to a spouse’s interest in a closely held corporation absent extraordinary circumstances — though it is narrower than it is cited for, valuing the marital residence at stipulated fair market value and reserving the case of sole shareholders. Massachusetts reached a compatible result in Bernier v. Bernier, 449 Mass. 774 (2007), instructing that spouses be treated ‘not as arm’s-length hypothetical buyers and sellers in a theoretical open market, but as fiduciaries entitled to equitable distribution of their marital assets.’
Rev. Rul. 93-12, 1993-1 C.B. 202, holds that where a donor transfers shares to each of the donor’s children, ‘the factor of corporate control in the family is not considered in valuing each transferred interest,’ and a minority discount ‘will not be disallowed solely because a transferred interest, when aggregated with interests held by family members, would be a part of a controlling interest.’ Same shares, same family, opposite instruction from a fair value statute.
What the empirical bases for a discount actually support, and what they do not.
Availability is decided first, and it moves more money than the percentage does.
Cavalier Oil Corp. v. Harnett, 564 A.2d 1137 (Del. 1989), bars shareholder-level discounts in appraisal. Rapid-American Corp. v. Harris, 603 A.2d 796, 806 (Del. 1992), held that in valuing a parent holding wholly owned subsidiaries ‘Delaware law compels the inclusion of a control premium,’ reaffirmed in M.G. Bancorporation, Inc. v. LeBeau, 737 A.2d 513, 524 (Del. 1999). Same statute, opposite direction, different layer of the structure.
No, and the sentence conflates two axes. A standard of value is a definition; a discount is an adjustment to a base value at the level-of-value axis; whether the standard permits the adjustment is a third question decided by the forum. On its face, the MBCA-derived formula bars discounting ‘for lack of marketability or minority status,’ but several enactments carry an articles-amendment exception. New York bars the minority discount under Friedman and permits a marketability discount. New Jersey reached opposite results on the same day in Balsamides v. Protameen Chemicals, Inc., 160 N.J. 352 (1999), and Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383 (1999), on the principle that a marketability discount cannot be used by controlling or oppressing shareholders to benefit themselves. And in transfer tax the discount is not merely permitted but expected.
Its provenance. The figures in the classic study table were measured on transactions restricted under Rule 144’s original two-year holding period, which ceased to exist for that purpose on 29 April 1997 and was shortened again on 15 February 2008 for reporting-company securities. Citing a study average from a two-year regime to an interest today is citing the price of a different asset. The variance inside the data is worse than the vintage: the observed spread moves substantially with block size, with the presence of registration rights and with market volatility, none of which is a property of the subject interest’s marketability. The IRS DLOM Job Aid puts the identification problem sharply — ‘Were the shares priced below-market because they were restricted? … Or were the shares restricted because they were priced below-market?’ The Job Aid is not an official IRS position and may not be cited as authority.
Largely not. The Appraisal Foundation’s VFR Valuation Advisory #3 (September 2017) uses ‘market participant acquisition premium’ precisely because ‘control’ begs the question, and expressly scopes itself to fair value for financial reporting rather than to tax or dispute contexts. Acquisition-premium data capture mostly strategic buyers and therefore price synergies, and inverting them into a discount for lack of control by DLOC = 1 − 1/(1 + CP) propagates that content. Delaware has named the defect in the data: in Andaloro v. PFPC Worldwide, Inc., C.A. Nos. 20336 & 20289 (Del. Ch. 19 Aug. 2005) (Strine, V.C.), the court accepted an expert’s 38% acquisition-premium adjustment while observing that it ‘was very generous to the plaintiffs, as he did not seek to exclude any portion of the average premia from his sample to account for the sharing of synergies by the buyer with the seller.’ Note what that adjustment was doing, because it is routinely misdescribed: Andaloro concerned a premium added to a minority-basis comparable-companies value, not a control premium inverted into a discount. Delaware has policed the synergy content of the premium data. It has neither blessed nor condemned the inversion arithmetic.
Because every authority in the field says the practice is wrong, including the one taxpayers are arguing against. The IRS DLOM Job Aid warns that ‘judges are not valuators and are not constrained to the environment in which professional valuators operate,’ that a judge ‘will often select one discount over another simply based on the ability or lack thereof that the two sides of the dispute display in arguing their respective cases,’ and that courts ‘can be a very questionable source when valuation guidance is desired.’ It says of itself that it is not an official IRS position and may not be cited as authority, so read it as a candid internal survey rather than as law. Estate of LeFrak, T.C. Memo. 1993-526, is to the same effect: the discount must be decided on the record in the case at hand, not on what another court found reasonable on different evidence. A court’s discount is a litigation outcome, not a valuation datum.
Describe the proceeding and the interest. The Institute will help you see whether a level-of-value adjustment is available there, and what a court would expect it to rest on.