Читать книгу 2012 Estate Planning - Martin Inc. Shenkman - Страница 35

Remember your first grade math? 1+1 equals 2. Well with valuation discounts, taxpayers have long been able to prove that the sum of the parts is less than the value of the whole, at least for gift and estate tax purposes. When a taxpayer gifts 30 percent of an interest in a limited liability company (LLC) owning a $1 million rental property, the value of that LLC interest is not $300,000 (30% x $1 million), but something less to reflect that a 30 percent minority owner generally cannot influence important business decisions, including cash distributions, and so on. While there is clearly merit to this concept when unrelated parties do business together, the economic reality becomes less certain when mommy, daddy, and a trust for Junior are the partners. As a result of the perceived abuses associated with intra-family transfers of hard-to-value assets, and the costs to the court system of litigating discounts, many proposals have been floated to restrict or eliminate certain valuation discounts. There is a good chance that discounts as they presently exist will have a short half-life.

The use of entities like family limited partnerships (FLPs) as a wealth-shifting tool may be curtailed. For example, the tax laws provide that, for valuation purposes, certain contractual restrictions (e.g., in a partnership agreement) that are more restrictive than applicable state law should be ignored when determining values. Certain states (e.g., Nevada) have laws that incorporate significant transfer restrictions, thus undermining the effectiveness of this federal provision. New legislation might mandate that even certain state law restrictions be ignored when valuing family business interests for federal gift and estate tax purposes. This could include certain categories of restrictions, such as the lack of an indefinite term in an agreement, the creation by transfer of a limited assignee interest, or an inability to withdraw capital (called a “lock-in feature”). For example, a lock-in provision might prevent any member of a limited liability company (LLC) from exiting the entity as an equity holder for a specified minimum period of time without some adverse consequence. This would significantly increase the valuation discount for lack of marketability since it would prevent realization of the value of the LLC interests for the lock-in period. Transfers of small FLP interests to non-family members (so that family members cannot unilaterally remove the restrictions used to justify discounts) might also be legislatively addressed. So if you want to take advantage of these favorable valuation discounts, act quickly. Whatever changes may occur in the discount arena, FLPs and LLCs will likely remain important planning tools because of the many non-estate tax benefits they provide, such as asset protection, centralized management, and income shifting.

For 2012 the “Discount Game” is alive and well. When combined with the generous $5.12 million gift tax exemption (or $10.24 million for a married couple), it creates truly amazing wealth shifting opportunities. But many taxpayers, and even many estate planners, remain obsessively focused on discounts, distracting them from more valuable planning benefits, such as the tax burn that can be achieved with grantor trust status (that is, that the trust will grow free of income tax because its income will be taxed to you, as the grantor). The obsession with large discounts can prove to be a mistake for some, especially in light of the heightened audit risk that comes with claiming aggressive discounts. This issue will be addressed in later chapters.