Historically, CPAs have dissuaded estate planning clients from funding family limited partnerships with personal use property, such as a primary or secondary residence. In the past the IRS has attacked the transfer of such property to a family limited partnership on the grounds that the entity lacked a valid or bona fide business purpose and, as a result, should have been disregarded for federal transfer tax purposes. In a recent case the Tax Court clarified an unsettled area of the law.
On December 28, 1994, Herbert and Ina Knight established a family limited partnership and two children’s trusts. The Knights also established a management trust to serve as the partnership’s general partner. They transferred certain real property and financial assets to the partnership and placed the bulk of the limited partnership interests in the children’s trusts. The IRS agreed the partnership, since its inception, satisfied all of the requirements of Texas law. The real property consisted of a 290-acre cattle ranch and two personal residences the Knights’ two children occupied rent free. The fair market value of the real property was $494,201 while the fair market value of the financial assets (municipal bond funds, Treasury notes, insurance policies and cash) was $1,587,122.
The partnership kept no records, prepared no annual reports and had no employees. In fact, the partners never corresponded or met to discuss partnership operations. The partnership never conducted any business and did not prepare annual financial statements or reports. The general partner was not compensated for its management efforts. However, the partnership did file information tax returns for 1995 through 1997, and the management trust and the children’s trusts filed fiduciary tax returns for the same period. The real property was used for personal purposes before and after the Knights formed the partnership. At no time did the children sign a lease or pay rent to the partnership on the residences. They paid all utilities while the partnership paid the property taxes and insurance. The annual cost of maintaining the residences was more than 70% of the partnership’s total expenses. After transferring the ranch to the partnership, Herbert Knight continued to raise cattle and paid no rent until after litigation began. The partnership’s only ranch-related revenue was an oral pasture lease which called for Knight to pay annual rent of $1,500.
The Knights filed a federal gift and generation-skipping transfer tax return for 1994. They reported that each had given a 22.3% interest in the partnership to both children’s trusts. The couple maintained that a 44% valuation discount should apply to the gifts as a result of portfolio, minority interest and lack-of-marketability discounts. The IRS said, in part, that the partnership lacked economic substance and should be disregarded for gift tax purposes, resulting in no valuation discounts.
Result. For the taxpayer. The Tax Court held that under Texas law the partnership should be respected because there was no reason to conclude that a hypothetical buyer or seller would disregard it. The court noted the Knights had burdened the partnership and underlying property with restrictions that were valid and enforceable under state law. It further noted that the federal estate and gift tax was based on the transferred property’s fair market value. Since fair market value is defined as “the price at which such 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,” the Tax Court concluded that a willing buyer would take the form of the transaction—the creation of the partnership—into account and that the substance and form were not at odds for gift tax valuation purposes. The court also said IRS reliance on income tax economic substance cases was misplaced as the issue was the value of the gift. The Tax Court further held that the value of the partnership interests should be reduced by minority and lack-of-marketability discounts totaling 15%.
Justice Foley, concurring in result only, separately wrote that whether a willing buyer would take the form of the transaction into account was not relevant in determining whether the entity must be respected for transfer tax purposes. He said the willing buyer/willing seller analysis merely establishes the value of a partnership interest, not whether the economic substance doctrine applies. He concluded that the doctrine, which emphasizes business purpose, is not a good fit in a tax regime dealing with typically donative transfers. As a result, “the courts have not employed the economic substance doctrine to disregard an entity which is recognized as bona fide under state law for the purpose of disallowing a purported valuation discount.”
The Tax Court opinion seems to indicate that, if a partnership is validly created and operated under state law, its economic substance should not be disregarded for transfer tax purposes. Income tax ramifications aside, this is a welcome ruling for practitioners and their clients. It appears it is no longer necessary for clients to maintain an exhaustive list of purported business reasons or purposes for forming a partnership as long as it is formed under applicable state law. In fact, Knight indicates that traditional recordkeeping, lease or rental arrangements and management compensation for general partners are no longer essential.
CPAs, however, should understand that the income tax ramifications of the personal use of partnership property by one or more partners is still uncertain. In the corporate context, the weight of authority indicates that the personal use of corporate-owned property may result in deemed income or dividends to certain shareholders. However, the authoritative guidance on the income tax consequences of the personal use of corporate-owned property may not be entirely applicable to the personal use of partnership-owned property because, under state law, all partners have an equal right to use partnership property.
Knight v. Commissioner, 115 TC 36 (11-30-00).
Prepared by Ryan K. Crayne, CPA, JD,
senior associate with the law firm
of Winthrop & Weinstine, PA,
St. Paul, Minnesota