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Friday, May 3, 2024
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Cases |
Jorgensen CA9th
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Jorgensen CA9th
GiftLaw Note:
In Estate of Erma V. Jorgensen et al. v. Commissioner; No. 09-73250 (3 May 2011), the Ninth Circuit affirmed a Tax Court holding that denied family limited partnership (FLP) discounts.
Decedent Erma Jorgensen had created two family limited partnerships and transferred substantial assets to the partnerships. She intended to use some of the FLP units for gifts to family members. Normally, those FLP units would qualify for discounts for minority interest and lack of marketability.
The IRS issued a deficiency on the grounds that the decedent had retained substantial dominion and control over the assets. As a result, under Sec. 2036(a) the FLP assets were includable in the estate at full value.
On the appeal of the Tax Court case, the estate noted that there had been some benefits retained by the decedent. However, the estate suggested that these retained benefits were "de minimis." Therefore, the estate maintained that only the retained benefits should be included in the estate and the balance of the two FLPs should qualify for appropriate discounts.
The Ninth Circuit reviewed the case. It noted that the decedent had spent $90,000 on personal expenses and the estate had used $200,000 from the FLP to pay estate taxes. In addition, the Tax Court had determined there was "an implied agreement decedent could have accessed any amount" of the FLP assets for personal purposes. Finally, because the FLPs disregarded some partnership formalities and there was no significant or active management of FLP assets, the "bona fide sale" exception did not apply. As a result, the discounts were denied and the full value of FLP assets was included in the estate of the decedent.
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Estate of Erma V. Jorgensen et al. v. Commissioner; No. 09-73250
ESTATE OF ERMA V. JORGENSEN, Deceased; JERRY LOU DAVIS, Executrix and Co-Trustee; GERALD R. JORGENSEN, Co-Trustee, Petitioners, v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEMORANDUM*
Appeal from a Decision of the United States Tax Court
Harry A. Haines, Tax Court Judge, Presiding
Argued and Submitted April 13, 2011
Pasadena, California
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges. The Estate of Erma V. Jorgensen (the "Estate") appeals the tax court's affirmance of the Commissioner of the Internal Revenue's ("Commissioner") assessment of an estate tax deficiency. Concluding that certain transfers decedent had made to two family limited partnerships should remain included in the estate valuation, the tax court found that decedent had retained the economic benefits and control of such property and that the transfers did not involve a bona fide sale for full consideration. See 26 U.S.C. § 2036(a). We review these determinations for clear error, Estate of Bigelow v. Comm'r, 503 F.3d 955, 964, 970 n.6 (9th Cir. 2007), and affirm.
On appeal, the Estate does not contest the tax court's determination that § 2036(a) applies; that is, it acknowledges decedent retained some benefits in the transferred property (because she had written checks on partnership accounts to pay some personal expenses and make some family gifts), but argues that these amounts should be considered de minimis or that the application of the section should be limited to the actual amount accessed by decedent. These arguments are made for the first time to this court and run contrary to stipulations made by the Estate below.
In any event, these arguments are also without merit. We do not find it de minimis that decedent personally wrote over $90,000 in checks on the accounts post-transfer,1 and the partnerships paid over $200,000 of her personal estate taxes from partnership funds. See Strangi v. Comm'r, 417 F.3d 468, 477 (5th Cir. 2005) (postdeath payment of funeral expenses and debts from partnership funds indicative of implicit agreement that transferor would retain enjoyment of property); see also Bigelow, 503 F.3d at 966 (noting payment of funeral expenses by partnership as supporting reasonable inference decedent had implied agreement she could access funds as needed).
Nor did the tax court clearly err by concluding there was an implied agreement decedent could have accessed any amount of the purportedly transferred assets to the extent she desired them. The actual amount of checks written for decedent's benefit does not undermine the court's finding that she could have accessed more, it was only used to buttress the court's conclusion that decedent had such access to the funds if needed.2
Nor did the tax court clearly err by concluding decedent's transfer was not a bona fide sale for adequate and full consideration. Although not per se inadequate, transfers to family partnerships such as this are subject to heightened scrutiny, and, to be bona fide, must objectively demonstrate a legitimate and significant nontax reason for the transfers. Bigelow, 503 F.3d at 969. Here, the type of assets transferred (marketable securities) did not require significant or active management, there was some disregard of partnership formalities, and the nontax justifications are either weak or refuted by the record (including formation of a second family partnership to hold higher-basis assets for gift-giving purposes, purportedly for the same nontax justifications that the original partnership could have already served). See, e.g., Bigelow, 503 F.3d at 970-72; Strangi, 417 F.3d at 480-82. Thus, as the tax court found, the overriding objective purpose appeared to be a mere "recycling of value" into the partnership vehicle to permit discounted gift-giving and/or reduce the ultimate estate tax owed (by reducing the stated value of the securities due to a lack of control and marketability). See Estate of Thompson v. Comm'r, 382 F.3d 367, 378-81 (3d Cir. 2004).
Finally, there was no error in not applying the burden-shifting provision of 26 U.S.C. § 7491. When, as here, the tax court decides the case based on the preponderance of the evidence and without regard to presumptions of correctness, § 7491's burden-shifting is simply not relevant. See Whitehouse Hotel Ltd. P'ship v. Comm'r, 615 F.3d 321, 332-33 (5th Cir. 2010); Blodgett v. Comm'r, 394 F.3d 1030, 1039 (8th Cir. 2005).
AFFIRMED.
FOOTNOTES
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1. We acknowledge that decedent attempted to repay some of these funds upon discovery of the errors by an accountant, although it appears they were repaid to the wrong partnership. However, it was the failure to observe partnership formalities and the fact she had access to the accounts (including her name on the checks for JMA II) despite being only a limited partner that the tax court found significant in determining there was an implicit retention of economic benefits. See Bigelow, 503 F.3d at 966 ("The Tax Court's finding that partnership formalities were not observed buttresses the conclusion that there was an implied agreement."); Estate of Reichardt v. Comm'r, 114 T.C. 144, 155 (2000) ("[Y]earend and . . . post-mortem adjusting entries made by [a CPA] were a belated attempt to undo decedent's commingling of partnership and personal accounts.").
2. The Second Circuit's opinion in Stewart v. Comm'r, 617 F.3d 148 (2d Cir. 2010), as a real estate possession case, is factually inapposite.
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