A gift of a minority block in a wholly family-owned company is valued as a minority block. The Service conceded that position in 1993, and Treasury’s later attempt to narrow its consequences by regulation was withdrawn.
Start a conversation with the Valuation Concierge, already scoped to family entities and restrictions. Pick a starting point, or describe the matter directly.
This is where the mirror image is sharpest. A Model Act appraisal statute values a co-owner’s shares as a proportionate interest in the corporation and bars discounting for lack of marketability or minority status by name (Va. Code §13.1-729). Transfer tax values the interest that actually moved, and Rev. Rul. 93-12 refuses to attribute the rest of the family’s holdings to the donee for that purpose. Same shares, same family, opposite instruction on the same adjustment — which is why the family limited partnership and the LLC operating agreement became the vehicles they are. But the Code does not respect everything the family wrote down. Chapter 14 treats particular lapsing rights as transfers and disregards particular liquidation restrictions, and the case law is unimpressed by restrictions that govern only the order in which buyers queue.
Six rules that decide whether the family relationship, and the documents the family signed, change the number.
Rev. Rul. 93-12, 1993-1 C.B. 202: 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’ for §2512 purposes, 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’ — and that holds ‘whether the donor held 100 percent or some lesser percentage of the stock immediately before the gift’.
The ruling revoked Rev. Rul. 81-253, the Service’s former family-attribution position, and announced it would follow Estate of Bright v. United States, 658 F.2d 999 (5th Cir. 1981), Propstra v. United States, 680 F.2d 1248 (9th Cir. 1982), Estate of Andrews v. Commissioner, 79 T.C. 938 (1982), and Estate of Lee v. Commissioner, 69 T.C. 860 (1978). Knowing that this was a government concession, and to which courts, matters when someone argues the rule is soft.
Where a voting or liquidation right in a corporation or partnership lapses and members of the transferor’s family control the entity both before and after, the lapse is treated as a transfer by that individual by gift. The provision reaches value that would otherwise disappear between generations without any transfer document at all.
On a transfer to a member of the transferor’s family, where the family controls the entity, any ‘applicable restriction’ is disregarded in determining value. The defined term reaches a restriction that effectively limits the entity’s ability to liquidate where it either lapses after the transfer or can be removed by the transferor or the family. Section 2704(b)(4) gives the Secretary regulatory authority to disregard other restrictions.
Treasury issued proposed regulations under §2704 in August 2016 that would have sharply curtailed discounts on family-entity transfers, and withdrew them in their entirety in October 2017, describing the proposed approach to artificial valuation discounts as unworkable. The statute stands; the proposed regulations do not. Commentary written in the intervening year still circulates as though they took effect, and that is a live source of error.
Not every transfer restriction moves fair market value. In Mandelbaum v. Commissioner, T.C. Memo. 1995-255, the Tax Court held that a right of first refusal carrying no fixed price or formula has little effect on fair market value, because it ‘does not limit the buyers to whom a seller could sell his or her stock, or the price for that stock, but merely governs the order in which prospective buyers must stand in line to buy the stock’, citing Couzens v. Commissioner, 11 B.T.A. 1040 (1928).
How the discount question is worked when the entity and the donees are all in one family.
Whether the family relationship is a fact about the shares or merely a fact about the shareholders.
Treasury proposed them in August 2016 and withdrew them in their entirety in October 2017, calling the approach to artificial valuation discounts unworkable. The statute itself is unaffected and §2704(b)(4)’s rulemaking authority remains, so the question is dormant rather than closed — but any source describing the proposals as current is describing 2016.
Because the Code values the interest transferred, not the family. Rev. Rul. 93-12 holds that where a donor transfers shares to each of the donor’s children, corporate control within the family is not considered in valuing each transferred interest, and that a minority discount will not be disallowed solely because the transferred interest, aggregated with interests held by family members, would form part of a controlling interest — expressly including the case where the donor held 100% immediately before the gift. That was a reversal: the ruling revoked Rev. Rul. 81-253 and adopted the position taken in Estate of Bright, Propstra, Estate of Andrews and Estate of Lee. The size of any resulting discount is a separate, facts-and-circumstances question that this Institute does not answer.
Some do, some are disregarded outright, and some do very little. Start with what the Code removes. Section 2703(a) values property without regard to any restriction on the right to sell or use it unless the §2703(b) exception is met, and §2704(b) disregards an ‘applicable restriction’ on the entity’s ability to liquidate where the family controls the entity and the restriction either lapses or can be removed by the family. What remains still has to be shown to affect what a hypothetical buyer would pay. Mandelbaum is the cautionary case: a right of first refusal with no fixed price or formula was held to have little effect on fair market value, because it governs only the order in which prospective buyers must stand in line.
No — that conflates the statute with a rulemaking. Section 2704 was enacted in 1990 and is in force. Subsection (a) treats the lapse of a voting or liquidation right in a family-controlled entity as a transfer by gift; subsection (b) disregards applicable restrictions on a family transfer; and subsection (b)(4) authorises the Secretary to disregard other restrictions by regulation. What was withdrawn in October 2017 was Treasury’s August 2016 proposal for exercising that authority, which would have curtailed family-entity discounts substantially, and which Treasury described as unworkable. The authority survives the withdrawal, so this is a live area to re-verify rather than a settled one. Any statement about current status should carry the date it was checked.
This Institute does not publish a figure, a range or a benchmark, and the reason is not caution. The IRS’s own Discount for Lack of Marketability Job Aid — issued in 2009 by the Service’s Engineering/Valuation Program, and carrying a disclaimer that it is not an official IRS position and may not be cited as authority — warns against deriving a discount from what courts allowed in earlier cases, observing that judges are not valuators and are not constrained to the environment valuers work in, and that a discount may be selected for reasons having little to do with valuation logic. Estate of LeFrak says the same: the amount of a discount must be decided on the record in the instant case and not on what a court found reasonable in another case involving different evidence. A published benchmark is the argument’s weakest possible support.
Describe the entity, who holds what, and what the agreement restricts. The Institute will help you see which provisions are priced and which are disregarded.