Xilliary Twill of Art Asset Management Group Inc shared a couple of very good WealthManagment.com articles on fractional interest. The first article, by Conrad Teitell in Philanthropy Tax E-Letter is a question and answer format on a fraction interest case and court decision. The estate took a discount due to the fractional interest, the IRS said there should not be a discount, and the court ruled their could be, but reduced the discount taken.
The other, by Dawn S. Markowitz looks at discounting an estate for fraction interest. Both articles are well worth reading for the personal property appraiser.
Teitell states
Source: Wealthmangement.comQuestion. Suppose something is worth $10 million. And suppose that something is divided into ten equal parts. Is each part worth $1 million?
Answer. Before I became a lawyer, I would have had a three-word answer: “I don’t know.” Now, after practicing for many years, I still have a three-word answer: “Well, it depends.”
On what does it depend? Among other things: (1) the type of property—for example, marketable securities, closely held securities, real estate or artworks; (2) the reason for the division; (3) agreements between the parties; and (4) who is doing the valuation—the IRS, an appeals court or a willing buyer and seller, both having reasonable knowledge of relevant facts and not being under compulsion to buy or sell.
A fascinating (if you enjoy this kind of stuff) Tax Court case deals with valuing fractional interests of artworks for estate tax purposes. Although charitable gifts aren’t directly involved, the IRS urged the Tax Court to use the IRS’s favorable rulings on the valuation of fractional charitable gifts of artworks as authority for its denying a decedent’s estate a valuation discount.
The Tax Court discusses the weight that courts will give—or rather not give—to the IRS’s pronouncements. After you plow through the Elkins case (coming up soon), I’ll discuss how the Tax Court in an earlier case viewed the IRS’s ignoring its own pronouncements. I tie this in with charitable gifts.
What happened. Summarizing the 30-plus-page Tax Court decision (with 22 footnotes), Elkins, the decedent, had fractional interests in a collection of 64 artworks (including works by Picasso, Moore, Pollock and Cezanne). Elkins and his wife owned fractional interests and so did his children. The fractional interests were created using Grantor Retained Income Trusts (GRITs), an art lease and co-tenancy agreements placing restrictions on the sale of the artworks.
The estate took a 44.75 percent discount in setting the collection’s fair market value—taking into account lack of marketability and control.
The IRS determined that no discount was appropriate and, based on the undiscounted value of the decedent’s interest in the artworks, claimed $9,068,265 in additional estate taxes.
Expert witnesses. Three experts for the estate testified in support of the estate’s claimed valuation discount. Two expert witnesses for the IRS testified against the discount.
Markowitz in an article titled What's it Worth, states
Source: Wealthmanagement.comIRS Says “Pay Up”
The IRS determined that James’ gross estate included his 73.055 percent interests in the disclaimed art, at an undiscounted FMV of $18,488,504, and his 50 percent interest in the GRIT art, at an undiscounted FMV of $5.3 million. As an alternative basis for using the undiscounted values of James’ fractional interests in the art, the IRS argued that the restrictions on the art subject to the cotenants’ agreement and the fractional interests in the art subject to the art lease were “an option…to use such artwork at a price less than fair market value” and “ a restriction on the right to sell or use” the interest in the artwork so that pursuant to IRC Section 2703(a)(1) and (2), James’ interests should be valued without regard to those restrictions. The IRS further claimed that the discounts used in determining the FMV of James’ fractional interests in the artwork were overstated and a discount was inappropriate. Finally, the IRS argued that because James’ will provided that estate taxes should be paid out of the residuary estate passing to the Elkins Foundation, the deduction for the charitable bequest to the foundation by the amount of the additional estate tax payable, should be reduced.
James’ Estate Says “No Way”
James’ estate timely filed a petition, assigning error to the IRS’ deficiency, seeking a refund of estate tax based on the estate’s 1) overvaluation of the art, 2) entitlement to a greater charitable contribution deduction than claimed, and 3) entitlement to deductions for attorney, accountant, appraisal and administration fees.
Expert Nash Speaks
To support its proposed discounts in valuing James’ fractional interests in the art, the estate offered the testimony of three experts. David Nash, the estate’s first expert, was accepted by the court as an expert in the art market, the marketability of art and art valuation. Before his valuation report, Nash viewed each of the 64 pieces, met with James’ three children and was asked to assess the marketability of James’ interest in each work. He believed that any potential buyer would have to take into account that the children (whom Nash called “shareholders”) are “committed to retaining the art in the family until the last shareholder dies.” Nash determined that potential buyers of the pieces would demand steep discounts from the pro rate FMV for James’ fractional interests; noted that auction houses don’t sell fractional interests in art; and believed that a collector would be “put off by the uncertainty of his ever being able to acquire the whole work.” He also noted that it would be highly unlikely that a museum would pay “anything close” to the pro rata value of the fractional share, when it would never know if or when it could obtain full control of the pieces. Noting, however, that although it’s common for two museums to jointly buy a work of art and rotate exhibiting the pieces in proportion to their interests, Nash concluded that in this instance, museums wouldn’t be interested in buying joint interests when the co-owners were James’ children (rather than another museum) and would face potential litigation to force a sale of the art. Finally, Nash concluded that art dealers, investors and funds would similarly have little interest in buying the fractional interests, due to the logistical difficulties surrounding the ownership of the pieces.
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