Response to Valuation Rules Continues

September 23, 2016 by · Leave a Comment 

The Main Street Employers coalition sent a letter to congressional tax writers yesterday opposing the proposed rules on estate valuations and calling on Congress to weigh in with Treasury on the issue.  From Politico:

The business community is escalating its efforts to beat back new Treasury regulations on the estate tax, which have somewhat fallen under the radar due to all the attention given to the Section 385 earnings stripping rules. A coalition called Parity for Main Street Employers sent leading congressional tax writers a letter asking Congress to urge Treasury to pull back rules that would make it harder for wealthy taxpayers to pass on a family business without paying estate or gift taxes.The impact of Treasury’s proposed changes should trouble Congress. Their attempt to legislate through regulation should be equally concerning. There is nothing in the statute or the legislative record to indicate Congress intended Section 2704 to be as broadly applied as the proposed rules suggest,” wrote the group, which includes the Independent Community Bankers of America, the National Association of Wholesaler-Distributors and the S Corporation Association.

Just a point of clarification – this isn’t about not paying estate taxes, it’s about paying more than you should owe.  At issue are whether family businesses should be valued in the same manner as every other business, or in an alternative manner that artificially inflates what they are taxed on above fair market value.  As the letter states:

The proposed regulations under Section 2704 target family businesses for higher estate and gift taxes, merely for being family-owned businesses. They would raise these taxes by largely eliminating the consideration of lack of control and lack of marketability when determining the fair market value of an interest in a family owned business, but only when that interest is passed on to a member of the family.  Lack of control and lack of marketability are real economic factors that can reduce the fair market value of an asset by a sizable amount, so the proposed rules would have the effect of increasing the applicable estate and gift taxes by 30 percent or more.

The challenge for the business community is the short legislative window.  There’s lots of interest on the Hill in responding to these rules, but very little time for Congress to take action.  They leave town sometime next week and don’t come back until after the election.  In the meantime, the official comment period for the rule will end on November 2nd.  So if Congress is going to act, it will have to get moving.

 

Another S Corp Mod Provision In Play!

On Wednesday, the Senate Finance Committee approved the Retirement Enhancement and Savings Act by a unanimous vote and forwarded it on to the full Senate for consideration.  Thanks to the urging of S-CORP Senate champions John Thune (R-SD) and Ben Cardin (D-MD), a modified version of an S Corporation Modernization Act provision was included in the final package.

This provision would expand the ability of S corporation banks to have IRA shareholders. Twelve years ago, Congress adopted a previous provision, but limited its application to banks that already had IRA shareholders as of October 22, 2004.  This new provision enables even more community banks to become S corporations and helps to level the playing field in that industry.

Now that the pension bill has been reported from the Committee, the goal is for provisions from the bill to be included in one of the end-year vehicles the full Senate will consider.  With unanimous committee passage, these provisions now have the support of over one quarter of the Senate.  So, we will continue to monitor the progress of these reforms.

Business Community Responds to Valuation Rules

September 16, 2016 by · Leave a Comment 

Business Valuation Wire reports there has been a sharp spike in the number of families asking valuation professionals to analyze what the newly proposed rules out of Treasury mean to their business succession plans:

Valuation practitioners tell BVWire they are already seeing an increase in valuation engagements triggered by the proposed Section 2704 regulations. And they expect this to gain steam as the regs continue to sink in with attorneys, wealth planners, and clients.

This should not come as a surprise.  The proposed rules target family businesses for higher estate and gift taxes, simply for being family-owned businesses.  They accomplish this by forcing the estates of family business owners to disregard important facts like control and marketability when ownership of the business is being passed on to the next generation.  Read through the S-Corp presentation for a full explanation.

The good news is the rule is just proposed, and there is time for you to act to block this rule from becoming law.  Here are three steps you can take right now to help us defeat this rule.

  1. Sign the Letter!

Are you a family business?  Do you intend to pass your business on to the next generation?  Do the pending rules threaten those plans?  Then click on the link below and sign this letter opposing the new Treasury regulations.

Spearheaded by our allies at the National Association of Manufacturers, the goal of the letter is to get as many business groups and family businesses as possible to sign on prior to COB on September 26th.   So click on the link, add your business, and forward the link to other family businesses!

  1. Contact the Small Business Advocate

The Office of Small Business Advocate is charged with defending the Main Street business community against harmful federal rules, and they need to hear from you on this issue.

  1. Submit Your Formal Comments!

The law requires Treasury to have a comment period on large rule changes like this one, so this is your chance to weigh in directly with the staff who drafted the proposed rule.  Click on the link below to register your opposition!

The Comment Period lasts through November 2nd, but don’t wait.  Already, dozens of family business owners have weighed in with comments like this one:

I am a 4th generation citrus grower and our family business is taxed high enough as it is. The citrus industry is suffering today greatly from a disease called Greening. We are having difficulty as it is without having to plan for additional estate taxes down the road.

Get your comments in today!

That’s it for now. Much more to follow.

More on the Valuation Rules

August 30, 2016 by · Leave a Comment 

The August recess has given the S-Corp team a little more time to review the pending valuations rules out of Treasury.  Recall that 23 years after the IRS surrendered and stopped using their flawed “family attribution” approach to valuing family-owned businesses, Treasury is trying to resurrect the concept using Section 2704.  Below are some additional thoughts about why this is a particularly bad and fatally flawed idea.

Scope:  Eliminating the application of “lack of control” and possibly “lack of marketability” discounts – the rule is unclear on those — to family business valuations may sound technical and immaterial, but it’s a big deal.  Here’s one way to look at it.

Consider a 20 percent interest in a family-owned business transferred from a father to a daughter.  The fair market value for the whole company is $500, so the pro-rata value of a 20 percent stake would be $100.

The 20 percent stake is not controlling, however, so its value needs to be adjusted for lack of control – the daughter has no ability to compel the company to buy the shares, nor can she compel the liquidation of the company. Add on the lack of marketability, since the company is closely held and there is no ready, liquid market outside the company to sell the shares.

If those discounts are worth 30 percent, then a 20 percent stake in the business would be valued at $70, and the estate tax would be $28.  Under the new Treasury approach, however, there would be no recognition of lack of control and possibly marketability, and the estate tax would be $40 – a 43 percent increase in tax!

Worse, if the daughter seeks to sell her 20 percent stake, any arm’s-length buyer is going to offer her fair market value, which takes into account lack of control and lack of marketability.   So the business interest she received from her father is worth $70 to an arm’s-length investor, but under Treasury’s new rules the estate tax would be $40.  That’s more than half the value of the inheritance!

Keep in mind that this new rule applies to family-owned enterprises only.  If the 20 percent interest were passed on to a non-family member, then the estate would be allowed to take lack of control and lack of marketability into account when valuing the stake, and the estate tax would be $28.

That’s how significant this proposed rule is.  It’s a backdoor means of legislating significantly higher estate taxes on family businesses nationwide.

Treasury v. IRS:  Perhaps the best case against adjusting the value of business assets in an estate by looking at who is receiving the property is made by our friends at the IRS.  Here’s what the IRS Valuation Guide for Income, Estate, and Gift Taxes says:

“[t]he willing buyer and willing seller are hypothetical persons, not actual persons. See United States v. Simmons and Estate of Bright v. United States [citations omitted]. Accordingly, it is irrelevant who the real seller and buyer are. The important thing to remember is that valuation must consider both the willing seller and the willing buyer. …”

Here’s what the IRS says about the appropriate way to value property in Revenue Ruling 93-12:

The value of the property is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of relevant facts. 

And here’s what it says about discriminating against family members:

After further consideration of the position taken in Rev. Rul. 81- 253, and in light of the cases noted above, the Service has concluded that, in the case of a corporation with a single class of stock, notwithstanding the family relationship of the donor, the donee, and other shareholders, the shares of other family members will not be aggregated with the transferred shares to determine whether the transferred shares should be valued as part of a controlling interest.

The reason valuation science starts with a hypothetical buyer and seller is because that’s the only way to ensure a similar and balanced approach to all valuations. Once you start adjusting valuations based on who is receiving the property, you create an unworkable mess and opportunities for arbitrage.  Tax advisors are going to have a field day with this one.

Statutory Authority:  President Obama’s Treasury Department has been notable for its willingness to stretch the bounds of legal authority, and these rules are no exception.  Treasury cites Section 2704 as the basis for this new rule.  That provision, adopted back in 1990 as part of the Omnibus Budget Reconciliation Act, included a change to estate tax rules targeting so-called “lapsing restrictions” that artificially lower the value of family business assets.  Here’s what the provision says:

The Secretary may by regulations provide that other restrictions shall be disregarded in determining the value of the transfer of any interest in a corporation or partnership to a member of the transferor’s family if such restriction has the effect of reducing the value of the transferred interest for purposes of this subtitle but does not ultimately reduce the value of such interest to the transferee. (emphasis added)

Notice how the provision makes clear that the restriction has to go away at some point?  However, “lack of control” and “lack of marketability” are not restrictions, and they don’t go away.  They are real and exist in all forms of ownership inside and outside estate tax law.  An ownership stake is simply worth less if you don’t enjoy all the rights – including the right to sell – that traditionally come with ownership.

Oh, and here’s the Conference Report that accompanied OBRA90:

The conference agreement modifies the provision in the Senate amendment regarding the effect of certain restrictions and lapsing rights upon the value of an interest in a partnership or corporation. These rules are intended to prevent results similar to that of Estate of Harrison v. Commissioner, 52 T.C.M. (CCH) 1306 (1987). These rules do not affect minority discounts or other discounts available under present law. (emphasis added)

Oops.  Keep in mind that if Congress had wanted to go after lack of control and marketability with Section 2704, they could have clearly drafted the provision to do so.  But just the opposite is true – Congress clearly did not want to go after those valuation rules.  Their desire to preserve them is obvious in both the statute and the accompanying committee report.

The courts are going to have a field day with this one too.

Money Loser?  So here is a question – will the proposed rule put forward by Treasury raise revenue, or lose it?

On its face, increasing the value of business interests passed on from one family member to another would increase estate tax collections.  Certainly Treasury thinks so.  They scored previous proposals along these lines as raising $18 billion over ten years.

But what about stepped up basis?  Most estates are too small to pay the estate tax, but they do get stepped up basis.  As Treasury noted in its blog post announcing the proposed rule:

Estate and gift taxes, or transfer taxes, are taxes on the transfer of assets from one person to another either by gift during his or her lifetime or by inheritance at death. Only transfers by an individual or their estate in excess of $5.45 million are subject to tax. For married couples, no tax is collected on the first $10.9 million transferred. These generous exemption amounts mean that fewer than 10,000 of the largest estates are subject to any transfer tax at all in a year.

Setting aside just how “generous” it is to let people keep their own property, the bottom line is that even with the new valuation rules in place, the vast majority of family enterprise assets transferred at death will likely fall under the estate tax thresholds.  However, they may receive an increased step up in basis which should reduce future capital gains tax collections when the business is sold.  As noted by one estate tax firm:

Another potentially positive, and likely also unintended, effect if the new Proposed Regulations are made final may exist for taxpayers who have a family business entity, but who do not have a large enough estate to cause a federal estate tax or state estate or inheritance taxes. For these taxpayers, disallowing valuation discounts that would normally apply when the family business entity interests are valued at an owner’s death can mean that the family receives a larger income tax basis step-up at that time, even though the increased value does not produce any increased estate or inheritance taxes.

So does this mean the new Treasury rules would reduce overall tax collections?  Not sure.  There seems to be uncertainty whether Treasury’s new valuation approach would apply to family business interests that are not part of a taxable estate.  Consistency would argue that they should, but we stopped expecting consistency from this Treasury Department a long time ago.

Moreover, the same advocates who support punishing family businesses with higher valuations also support raising the overall estate tax rate and reducing the exemption amount.  They want those higher valuations to lead to higher estate taxes for everybody, so any tax benefit for smaller estates is likely to be short-lived.

 

S Corp Gap Revisited

The Trump tax plan has renewed concerns that taxing income at different top rates leads to tax evasion.

Under the Trump plan, salary and wage income is taxed at 33 percent while business income is subject to a top rate of only 15 percent.  So what’s to stop taxpayers from shifting income from wages to business to take advantage of the lower pass-through rate?  Here’s Politico on the question from a couple of weeks back:

The Agenda’s Danny Vinik examines a big issue that wonks from both sides of the aisle have with both the Trump and House GOP plans – a higher top rate for individuals than pass-through businesses, which gives workers all the incentive to make themselves independent contractors rather than run-of-the-mill wage earners.

Moore – who’s been answering all sorts of questions about Trump’s tax ideas this week – told Danny that there’d have to be some fairly stout rules to block the sort of gaming that has plagued Kansas, which implemented a similar framework in 2012. But how exactly would that work? The wonk set has its doubts that tough-enough rules could be crafted, noting that there’s already an incentive for workers to classify themselves as freelancers to avoid payroll taxes. A Trump-like plan would only accelerate that rush, experts say.

We agree.  Anytime you have different top rates, you’ll create an incentive for taxpayers to shift income into the lower tax bucket.

That is why we support establishing the same top rate for all forms of income – wage and salary, pass through, and C corp.   Rate parity is not only a matter of tax fairness, it is also a matter of good tax administration.  So much of the IRS Code is focused on distinguishing one form of income from another.  Tax reform should seek to establish the same, reasonable top rates on all forms of income to increase fairness, reduce complexity, and make the Tax Code easier to enforce.

Doesn’t that mean that capital gains and dividends should be taxed at regular income rates?  Absolutely not.  Keep in mind that most dividends and capital gains have already been subject to the corporate tax, so the lower rate reflects the fact that tax has already been paid on that income. That’s why we support integrating the corporate code as suggested by Finance Chairman Orrin Hatch.  The Hatch plan would establish a single layer of tax for all business income, pass through and corporate alike.

Couple integration with rate parity, and you’ve got the makings of real tax reform.

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