Beckett G. Cantley [1]
Geoffrey C. Dietrich [2]

On April 7, 2020 the U.S. Tax Court ruled in Estate of Moore v. Commissioner, T.C. Memo. 2020-40, that certain deathbed transfers should be includible in the decedent’s estate for United States Federal Estate Tax (“estate tax”) purposes. The court applied Internal Revenue Code (“I.R.C.”) § 2036 to the transfers due to the decedent’s continued interests in the transferred property. The Tax Court stated that I.R.C. § 2036 creates “a general rule that brings back all property that a decedent transfers before he dies, subject to two exceptions.” [3] The first exception is for bona fide sales for full and adequate consideration. The second exception is for “any property that [the decedent] transferred in which he did not keep a right to possession, enjoyment, or rights to the issue of the transferred property.” [4] The Tax Court stated that the first exception depends on the transferor’s motivations, and that the decedent’s actions made it clear there was no bona fide sale. As a result, the Tax Court determined that I.R.C. § 2036(a)(1) applied to the transfer.

Estate of Moore is the latest in a line of cases in which taxpayers made deathbed transfers close to the date of death and the IRS successfully argued that the transferred property is includible in the decedent’s gross estate. In Estate of Bongard v. Commissioner, 124 T.C. 95 (2005), the Tax Court created a three-part test to determine whether I.R.C. § 2036 pulls property back into a decedent’s estate.

In Estate of Strangi v. Commissioner, T.C. Memo. 2003-145, aff’d 417 F.3d 468 (5th Cir. 2005), the Tax Court provided additional guidance for how the court interprets I.R.C. § 2036(a)(1).

In Estate of Nancy H. Powell v. Commissioner, 148 T.C. No. 18 (2017), the court builds on the rationale established by Strangi, but ultimately invokes I.R.C. § 2036(a)(2) to include the transferred assets in decedent’s gross estate. This article: (1) provides an overview of deathbed transfers case law; (2) describes typical such deathbed transfers; (3) outlines the I.R.C. § 2036 statute; (4) discusses the main seminal cases in the area of deathbed transfers, including Estate of Bongard, Estate of Strangi, Estate of Powell, and Estate of Moore; (5) synthesizes the case law on I.R.C. § 2036 and analyzers policy considerations regarding such law; and (6) concludes with a summary of the article’s findings.

I. Introduction: Death and Taxes

The only thing more inevitable than taxes and death … is taxes on death. When an individual dies, the person is taxed on the right to transfer property at death under the estate tax. [5] The tax is assessed against the individual’s “gross estate,” which consists of the fair market value of all property and certain interests the person owned at the time of death. [6] Once the gross estate is calculated, certain deductions are applied to arrive at the “taxable estate.” [7] Added to the taxable estate is the value of lifetime gifts subject to the United States Federal Gift Tax (“gift tax”). [8] Instead of being a tax on the transfer of property at death, the gift tax is a tax on an individual’s inter vivos transfer of property where the individual receives nothing, or less than full value, in return. [9] After adding the value of lifetime gifts to the taxable estate, the estate tax is computed. Finally, the tax is reduced by the available Unified Credit. [10]

Despite I.R.C. § 2001(a) imposing the estate tax on the taxable estate of every decedent who is a citizen or resident of the United States, [11] very few people end up paying any tax. Out of the 2.8 million people expected to die in 2020, it is estimated that the estates of only 1,900 people will be taxable—less than 0.1% of decedents. [12] The major reason for this is the Unified Credit. After a series of increases, [13] in 2020, a decedent can exclude up to $11,580,000 from his or her taxable estate before he or she must pay any federal estate and gift tax. [14] While most estates fall within the Unified Credit amount, [15] for those that exceed it, the tax consequences are significant. The current estate tax rate is 40%. [16] Thus, for every $1,000,000 included in the taxable estate, the tax bill rises by $400,000.

With such large amounts of money at stake, it is easy to see why high-net-worth individuals engage in estate planning to reduce estate and gift taxes. While many techniques are used to reduce estate and gift taxes, they center on transferring property out of an individual’s estate prior to death. Because the timing of death is uncertain, the earlier individuals plan their estates, the higher the chance their estate plan will accomplish the tax objectives.

Of course, not all individuals plan their estate well in advance of death. Many begin only after a serious decline in health or when death becomes imminent. These last-minute estate plans, or “deathbed transfers,” and how the court interprets I.R.C. § 2036 [which limits them], is the subject of this article. Part II of this article discusses common deathbed transactions. Part III discusses § 2036. Part IV discusses the line of seminal cases which interpret § 2036. Part V discusses: (1) the rules after the holding in Moore; (2) the policy behind the rules; and (3) the potential future of deathbed transactions.

II. Common Deathbed Transactions

Deathbed transactions take many forms. Typical transactions include outright gifts to loved ones, trust funding for the benefit of children, and asset sales to satisfy debts pre and post death. Most of these transfers are done simply to tie up loose ends before an individual’s death. However, as the estate value approaches and exceeds the estate and gift tax exemption amount, the consideration shifts to the reduction of estate and gift taxes. While multiple options exist to lower estate and gift taxes, the following section focuses on two types of transactions which frequently come under increased scrutiny from the IRS: family limited partnerships and discounted transfers.

A. Family Limited Partnerships

A family limited partnership (“FLP”) is a partnership created to administer a family business where members of the immediate family and close relatives serve as partners. [17] Just as in other limited partnership formats, there are general and limited partners. [18] The general partner is responsible for managing and controlling the assets and receiving and distributing profits. [19] The general partner is legally responsible for losses but does not hold title to the underlying assets of the partnership as an individual. [20] The limited partner shares in the profits of the partnership, but has limited liability and does not control day-to-day operations. [21] Limited partners in FLPs differ from other partnerships entities as FLP limited partners commonly receive an ownership interest without first contributing capital to the partnership. [22] In these instances, the limited partner is gifted the ownership interest based solely on the individual being a member of the family. [23]

Family limited partnerships are a popular vehicle for several reasons. [24] They offer centralized management of assets, ability to pool assets across multiple generations, ease of ownership transfers, asset protection, [25] and avoidance of probate. [26] The potential estate and gift tax savings is a particularly persuasive reason why individuals form FLPs. This option reduces estate and gift tax by transferring an underlying asset from an individual’s estate to an FLP in exchange for a partnership interest. [27] When the individual dies, the value of the partnership interest is included in the gross estate, not the fair market value of the underlying asset. [28] The partnership interest has a value less than the underlying asset because of valuation discounts. [29]

Two valuation discounts commonly apply to FLP interests. One is for “lack of marketability” [30] and the other is for “lack of control.” [31] A lack of marketability discount is applied to reflect that a partnership interest in a closely-held business is less attractive and more difficult to market than a publicly traded business interest. [32] The partnership interest can be harder to sell because the interest is only a minority stake or because of the difficulty of removing an underlying asset from a FLP. [33] The lack of a readily available market to sell the FLP interest, in turn, creates potential short-term liquidity problems and increases the risks of ownership. [34] Thus, courts have allowed a discount for lack of marketability to reflect the difficulties inherent in FLP interest ownership. [35] The lack of control discount is a result of the different rights and different levels of control afforded to general and limited partners. [36] Limited partners “lack control” because they are unable to force distributions or control the daily decisions of the partnership. [37]

Valuation discounts are not uniform. The size of the discount depends on several factors, including the type of asset or assets transferred, market conditions at the time of the transaction, the interest the decedent receives, and restrictions on the transfer of property in the partnership agreement. [38] A lack of marketability discount can range as high as 30-60% of the fair market value of the FLP interest. [39] A lack of control discount can be 25-55% of the pre-discount value of the partnership interest. [40] Overall, valuation discounts applied to FLP interests are such an important estate planning tool because they can reduce the value of an asset that was previously part of the decedent’s estate by 30-60%. [41] This “shrinks” the decedent’s estate and results in significant tax savings.

B. Discounted Transfers

Estate and tax planning opportunities do not end once the initial asset transfer into the FLP occurs. Individuals may receive additional estate reduction by transferring the discounted FLP interest. Common discounted transfers include transfers to children, a Grantor Retained Annuity Trust (“GRAT”), and a Charitable Lead Annuity Trust (“CLAT”). Transfers to children within the family accomplish a multitude of objectives. A transfer to a child of a FLP interest can serve the purpose of giving the child a stake in the family business while teaching the child how to run the business while a parent retains control and management of the business as general partner. [42] Depending on the parent’s goals, the transfer can be structured as a gift or a sale. [43] If the transfer is a gift, the value of the FLP interest is removed from the parent’s estate with the gifted interest’s value counting against the gifting parent’s lifetime exclusion amount. [44] Nonetheless, the valuation discounts reduce the gift tax exclusion amount less than if the underlying assets were transferred outright. [45] If the transfer is structured as a sale, the value of the FLP interest is removed from the parent’s estate and the consideration received for the interest remains. [46] Due to valuation discounts, this amount will be less than an outright sale of the underlying asset. [47]

Another popular discounted transfer to reduce estate and gift tax is the transfer of FLP interests to a GRAT. In this arrangement, a FLP interest is transferred to a GRAT, while the grantor retains the right to the FLP interest’s income stream in the form of an annuity for the term of the GRAT. [48] When the term of the GRAT ends, the FLP interest is transferred to the remainder beneficiary (usually another family member). [49] This allows for an even greater valuation discount because the right to the FLP interest’s stream of income is valued less than the value of the actual FLP interest. [50]

A third common discounted transfer is the transfer of an FLP interest to a CLAT. In this arrangement, the FLP interest is transferred to a CLAT where annuity payments are made to a charity for a certain timeframe. [51] Once the specified period ends, whatever remains in the trust is transferred to or for the benefit of the remainder beneficiary. [52] The remainder beneficiary, importantly, does not have to be a charitable organization. [53] Often, they are the descendants of the CLAT’s grantor. [54] Beyond the benefit of transferring the FLP interest out of the donor’s estate, the donor receives a gift tax charitable deduction for the present value of the lead interest. [55] While the present value of the remainder estate is a taxable gift, steps can be taken to reduce the amount of taxable gift to zero. [56] Thus, successful implementation of a CLAT allows the donor to remove the value of the underlying FLP interest from their estate, receive a gift tax charitable deduction, and transfer the FLP interest to their children or other family members. [57]

III. I.R.C. § 2036

When properly structured and executed, FLPs, discounted transfers, and other vehicles can achieve a significant estate and gift tax reduction. However, the transfers must not fall within the scope of I.R.C. § 2036(a). I.R.C. § 2036(a) is an Internal Revenue Code provision that brings the value of certain transferred property back into the decedent’s gross estate. [58] I.R.C. § 2036(a) provides:

(a) General rule. The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death—

(1) the possession or enjoyment of, or the right to the income from, the property, or

(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.

Essentially, I.R.C. § 2036(a) includes the value of any transferred property in the decedent’s estate where the decedent either retained: (1) the possession or enjoyment of; (2) the right to possess or enjoy; or (3) the right to designate who shall possess or enjoy such transferred property. The purpose of I.R.C. § 2036 is to “prevent the circumvention of federal estate tax by the use of inter vivos transactions which do not remove the lifetime enjoyment of property purportedly transferred by a decedent.” [59] I.R.C. § 2036 is “part of a Congressional scheme to tax the value of property transferred at death,” whether the decedent “accomplishes the transfer by will, by intestacy, or by allowing his substantial control over the property to remain unexercised until death so that the shifting of its economic benefits to the beneficiary only then becomes complete.” [60] The IRS has increasingly turned to I.R.C. § 2036 in order to pull the value of deathbed transfers back into a decedent’s estate. [61] The following cases explore how the court has interpreted I.R.C. § 2036 and responded to the IRS’s increased use of the provision.

IV. I.R.C. § 2036(a) Deathbed Transfers Seminal Cases

Over the past twenty years, courts have issued a line of decisions providing guidance on the application of I.R.C. § 2036(a) to deathbed transfers. Each of these cases resulted from IRS challenges to decedent asset transfers to an FLP. The IRS increasingly disputes these transfers as they “often view these partnerships as efforts to pass valuable assets to one’s heirs at a discount for lack of marketability and lack of control.” [62]

A. Estate of Bongard

In Estate of Bongard v. Comm’r, [63] the United States Tax Court (“USTC”) outlined a general test that has become the standard courts use to determine whether an inter vivos transfer falls within I.R.C. § 2036(a). [64] In Bongard, decedent established Empak, Inc. (“Empak”), an electronics materials packaging company, where decedent served as CEO and sole member of Empak’s board of directors. [65] Decedent and an Irrevocable Stock Accumulation Trust (“ISA Trust”) set up for the benefit of decedent’s children owned all the stock of Empak. [66] On January 30, 1996, WCB Holdings, LLC. (“WCB Holdings”) was established to pool the family members’ ownership interests in Empak in preparation of a corporate liquidity event. [67] On December 28, 1996, decedent and ISA Trust contributed their shares of Empak stock to WCB Holdings in exchange for WCB Holdings Class A and Class B membership units. [68] The following day, decedent and ISA Trust created Bongard Family Limited Partnership (“BFLP”). [69] In exchange for a 99% limited partnership interest in BFLP, decedent transferred all of his WCB Holdings class B membership units to BFLP. [70] ISA Trust received a 1% general partnership interest after transferring a portion of its WCB Holdings class B membership units to BFLP. [71] Subsequent gifts and distributions, including a BFLP 7.72% limited partnership interest gift from decedent to his wife, followed up until decedent’s death. [72] On November 16, 1998, Decedent died unexpectantly. [73]

The IRS argued that decedent’s inter vivos transfers to WCB Holdings and BFLP should be included in the gross estate because I.R.C. §§ 2035(a) and 2036(a) and (b) applied. [74] The estate countered the IRS’s argument on the two transfers, stating that they: (1) were not “transfers” within the meaning of I.R.C § 2036, (2) satisfied the bona fide sale exemption, and (3) did not include decedent’s retention of I.R.C. § 2036 interests. [75] The Tax Court held that: (1) decedent’s transfer of Empak stock to WCB Holdings satisfied the bona fide sale exception of I.R.C. § 2036(a); [76] and (2) the value of decedent’s transfer of WCB Holdings class B membership units to BFLP was includable under I.R.C. § 2036(a)(1). [77] First, the USTC explained I.R.C. § 2036 applies when three conditions are met:

(1) the decedent made an inter vivos transfer of property; (2) the decedent's transfer was not a bona fide sale for adequate and full consideration; and (3) the decedent retained an interest or right enumerated in section 2036(a)(1) or (2) or (b) in the transferred property which he did not relinquish before his death.

Estate of Bongard v. Comm'r, 124 T.C. No. 8, at *112 (2005). Next, the USTC applied their newly created test. The Tax Court found both of decedent’s transactions to be “transfers” within the context of I.R.C. § 2036 because “transfer” is a broadly defined term [78] and decedent voluntarily made the inter vivos transfers of the property. [79]

For the second condition of the test, the UTSC found decedent’s initial transfer of Empak stock to WCB Holdings did qualify for the bona fide sale exception, [80] while decedent’s subsequent transfer of WCB Holdings class B membership units to BFLP did not. [81] As the United States Court of Appeals for the Fifth Circuit did in Kimbell v. United States, [82] the Tax Court broke the bona fide sale exception into two prongs: (1) whether the transaction qualified as a bona fide sale; and (2) whether the decedent received adequate and full consideration. [83] For FLPs, the first prong is satisfied when the objective evidence indicates a “legitimate and significant nontax reason” for the FLP creation and the transferors receive “partnership interests proportionate to the value of the property transferred.” [84]

Decedent’s transfer of Empak stock to WCB Holdings satisfied the first prong of the test because the court found the pooling of decedent’s and ISA Trust’s Empak shares was for the significant nontax reason of attracting potential investors and raising capital for additional growth. [85] Furthermore, the Tax Court determined the second prong was satisfied because both decedent and ISA Trust received interests in WCB Holdings proportionate to the amount of shares each transferred. [86] Thus, the Tax Court determined decedent’s transfer of Empak stock to WCB Holdings satisfied the bona fide sale exception of I.R.C. § 2036(a), and there was no need to determine whether decedent retained an I.R.C. § 2036(a) or (b) interest. [87]

The USTC held decedent's transfer of WCB Holdings class B membership units to BFLP did not satisfy the bona fide sale exception because it failed to exhibit a significant nontax purpose. [88] The USTC rejected the estate’s arguments that BFLP was established to provide additional credit protection and to facilitate decedent’s post-marital agreement with his second wife. [89] The tax court reasoned WCB Holdings already satisfied those objectives. [90] Furthermore, decedent “recycled the value” of the property he transferred to BFLP because BFLP did not perform a management function for the assets received or engage in any businesslike transaction. [91] All decedent did was “change the form” in which he held his interest in the transferred property. [92] Thus, decedent’s transfer of WCB Holdings class B membership units to BFLP did not qualify for the bona fide sale exception. [93]

Finally, the USTC turned to the third consideration of the I.R.C. § 2036 test and held decedent retained an I.R.C. § 2036(a) interest in BFLP. [94] The Tax Court stated a right is retained “if at the time of the transfer there was an understanding, express or implied, that the interest or right would later be conferred.” [95] The USTC concluded there was an implied agreement between the parties that decedent retained the right to control the WCB membership units based on decedent’s ability to decide whether the membership units and underlying Empak stock would be redeemed. [96] After determining decedent retained the enjoyment of the property transferred to BFLP, the USTC concluded the value of the WCB Holdings class B membership units was included in decedent’s gross estate under I.R.C. § 2036(a). [97]

B. Estate of Strangi

While Bongard established a test for courts to use for I.R.C. § 2036(a) inclusion, [98] Estate of Strangi v. Comm’r [99] outlines the application of I.R.C. §§ 2036(a)(1) and (a)(2) to deathbed transfers. In Strangi, decedent transferred 98% of his wealth to Strangi Family Limited Partnership (“SFLP”) two months before his death. [100] On July 19, 1988, decedent executed a power of attorney naming Mr. Gulig, his son-in-law, as his attorney-in-fact. [101] During 1993, decedent underwent surgery to remove a cancerous mass from his back and was diagnosed with a degenerative brain disorder. [102] After attending a seminar discussing the use of family limited partnerships for asset preservation, estate planning, income tax planning, and charitable giving, on August 12, 1994, Mr. Gulig formed SFLP while acting as decedent’s attorney-in-fact. [103] Property of decedent totaling a fair market value of $9,876,929, or 98% of decedent’s wealth, was transferred to SFLP in exchange for a 99% limited partnership interest. [104] Assets contributed to SFLP included the residence occupied by decedent, securities, accrued interest and dividends, insurance policies, an annuity, receivables, and partnership interests. [105] Stranco, a Texas corporation Mr. Gulig created the same day as SFLP, purchased the remaining 1% of SFLP as managing general partner. [106] Stranco was funded by decedent and his four children. [107] Decedent contributed $49,350 in assets for 47% of Stranco’s common stock, while decedent’s children contributed $55,650 for 53% of Stranco’s common stock. [108] Additionally, decedent and decedent’s children were named as the initial five directors of Stranco and Mr. Gulig was hired by Stranco to manage the day-to-day business of the corporation. [109] Decedent died of cancer on October 14, 1994—less than three months after the transfers to SFLP and Stranco. [110]

In the Tax Court, the IRS argued that SFLP should be disregarded because it lacked economic substance and business purpose. [111] After the subsequent approval of a motion to amend its answer, the IRS further argued the full value of the assets decedent transferred to SFLP and Stranco should be included in decedent gross estate because decedent retained a “right” within the meaning of I.R.C. § 2036(a)(2). [112] On its second trip to the Court of Appeals, the Fifth Circuit affirmed the Tax Court’s holding that the value of the assets decedent transferred to SFLP should be included in decedent’s estate under I.R.C. § 2036(a)(1). [113] The Fifth Circuit stated two requirements were needed to trigger I.R.C. § 2036(a)(1). [114] First, the decedent must retain “possession or enjoyment” of the property.” [115] This requirement is met if the decedent retains a “substantial present economic benefit” from the transferred property. [116] For the second requirement, the court used the same “expressed or implied” agreement test used by the court in Bongard. [117] The Fifth Circuit concluded that decedent satisfied both requirements based on numerous facts, [118] including: (1) various payments made from the FLP, both before and after decedent’s death, to meet his needs and expenses; (2) decedent’s continued residence in his house after it was transferred to the FLP; (3) his nonpayment of rent to the FLP for three years; and (4) his failure to retain sufficient assets outside the FLP to meet his living expenses for his remaining life expectancy. [119] Based on these circumstances and the inapplicability of the bona fide sale exception, [120] the Fifth Circuit affirmed the Tax Court’s I.R.C. § 2036(a)(1) holding. [121]

Because the Fifth Circuit held the transferred assets were included in the taxable estate under I.R.C. § 2036(a)(1), the Fifth Circuit did not discuss the IRS’s alternative contention for inclusion under I.R.C. § 2036(a)(2). [122] However, the Tax Court’s assessment of the IRS’s I.R.C. § 2036(a)(2) argument is important to discuss as it serves as the basis for later holdings. [123] The Tax Court held, as an alternative to their I.R.C. § 2036(a)(1) holding, that decedent, through Mr. Gulig, retained the “right to designate the persons who shall possess or enjoy the property or its income” within the meaning of I.R.C. § 2036(a)(2). [124] Specifically, the court found Mr. Gulig’s dual roles as decedent’s attorney-in-fact and manager of Stranco problematic. [125] The SFLP partnership agreement named Stranco managing general partner of SFLP and gave the managing partner sole discretion to determine distributions. [126] When Mr. Gulig was hired as Stranco’s manager, this power was then conferred upon Mr. Gulig, [127] placing decedent in a position “to act, alone or in conjunction with others, through his attorney-in-fact, to cause distributions of property previously transferred to the entities or of income therefrom.” [128]

Citing United States v. Byrum, [129] the estate argued I.R.C. § 2036(a)(2) was not applicable because decedent’s “rights” were limited by Mr. Gulig’s fiduciary duties to SFLP and Stranco. [130] The court rejected this argument because: (1) Mr. Gulig already owed fiduciary duties to decedent personally as his attorney-in-fact before the formation of SFLP and Stranco; and (2) the fiduciary obligations of Stranco and its directors were duties essentially owed to decedent himself. [131] The Tax Court then rejected the fiduciary duties argument by stating, “[i]ntrafamily fiduciary duties within an investment vehicle simply are not equivalent in nature to the obligations created by the United States v. Byrum . . . scenario.” [132]

C. Estate of Powell

Estate of Powell v. Commissioner [133] builds on Strangi and is a major victory for the IRS in its battle against FLP deathbed transfers. In Powell, decedent’s son, acting under a power of attorney, transferred approximately $10 million of assets from decedent’s revocable trust to an FLP while decedent was hospitalized in intensive care. [134] Decedent received a 99% limited partnership interest, while her two sons contributed an unsecured note in return for a 1% general partnership interest. [135] Notably, the FLP agreement gave decedent’s son sole discretion over the timing and amount of partnership distributions. [136] The agreement also permitted dissolution of the FLP upon written consent of all partners. [137] On the same day cash and securities were transferred into the FLP, decedent’s son, again acting under a POA, transferred decedent’s 99% limited partner interest to a charitable lead annuity trust (“CLAT”) with her two sons receiving the remainder upon her death. [138] Decedent died seven days after the funding of the FLP and same-day transfer of her limited partner interest to the CLAT. [139]

The IRS argued that I.R.C. § 2036(a)(1) and (2) applied to decedent’s transfer of cash and securities to the FLP. [140] The IRS contended that I.R.C. § 2036(a)(1) applied to the transfer because it was subject to an implied agreement under which decedent retained possession or enjoyment of the transferred property or the right to income from that property. [141] The IRS argued that I.R.C. § 2036(a)(2) applied because of decedent's ability, acting with her sons, to dissolve the FLP and thereby designate who could possess the transferred property or the income from it. [142] Finally, the IRS asserted the bona fide sale exception to I.R.C. § 2036(a) did not apply because the estate failed to demonstrate a “significant nontax purpose” for the creation of the FLP and because, in the light of the claimed valuation discount, the transfer was not made for “full and adequate consideration.” [143]

The USTC held for inclusion of the cash and securities under I.R.C. § 2036(a)(2), making it unnecessary to consider the IRS’s I.R.C. § 2036(a)(1) argument. [144] Drawing heavily from Estate of Strangi, [145] the Tax Court found decedent’s cooperative ability to dissolve the FLP with her sons constituted a right in conjunction with others to designate the persons who shall possess or enjoy the transferred property within the meaning of I.R.C. § 2036(a)(2). [146] The USTC found the ability to dissolve the partnership problematic because it comes with the ability to direct the disposition of the partnership assets. [147] While the decedent’s ability is in conjunction with her sons, it was enough to trigger I.R.C. § 2036(a)(2) inclusion. [148] Decedent’s ability to determine the amount and timing of distributions through her son’s dual role as managing general partner and her attorney-in-fact constituted a “right” within the meaning of I.R.C. § 2036(a)(2). [149]

In finding this way, the Tax Court echoed Strangi and precluded the “fiduciary duties” argument. [150] The USTC reasoned Mr. Powell owed duties to decedent prior to or upon formation of the FLP. [151] Since decedent held a 99% interest in the FLP, whatever fiduciary duties limited her son’s ability to determine partnership distributions were duties owed “almost exclusively” to decedent herself. [152] Finally, the court found any fiduciary duties Mr. Powell may have owed to decedent as “illusory” because there was no evidence that the FLP was anything but an investment vehicle for decedent and her sons. [153] Since the estate did not argue that the transfer was exempted by the I.R.C. § 2036(a) bona fide sale exception, the USTC concluded the value of the transferred assets was includible in the value of decedent’s gross estate. [154]

D. Estate of Moore

The most recent case in the deathbed transfer inclusion is Estate of Moore v. Commissioner. [155] In Moore, decedent built a successful family farm (“Moore Farms”). [156] In 2004, decedent, in his late eighties, began negotiating a sale of Moore Farms to Mellon Farms. [157] In December 2004, before decedent could complete the deal with Mellon Farms, he was rushed to the emergency room with congestive heart failure. [158] After release from the hospital, a hospice doctor gave him less than six months to live. [159] Decedent then began his estate planning. [160] The result was a complex web of entities including a Living Trust (“Living Trust”), a Charitable Lead Annuity Trust (“Charitable Trust”), a Children’s Trust (“Children’s Trust”), a Family Management Trust (“Management Trust”), an Irrevocable Trust (“Irrevocable Trust”), and a Family Limited Partnership (“FLP”)—all created on the same day. [161] Decedent’s estate planning attorney testified that in decedent’s initial call to him, decedent believed his discharge from the hospital was “an extension of his life” and he wanted to wanted to meet with his attorney in order to try to “save the millions of dollars of taxes.” [162] On February 4, 2005, decedent finalized the sale of Moore Farms to Mellon Farms. [163] Decedent continued to live on the farm and made various transfers among and from the trusts and FLP until his death at the end of March 2005. [164]

The IRS argued the majority of the estate plan failed under I.R.C. § 2036 because: (1) decedent lacked a legitimate nontax reason for forming the FLP, thus, the transfer of four-fifths of the farm to the FLP did not qualify for the I.R.C. § 2036(a) bona fide sale exception; and (2) decedent retained possession and enjoyment of Moore Farms even after its sale. [165] The USTC agreed with the IRS and held the transfer of four-fifths of the farm to the FLP did not meet the requirements of the bona fide sale exception [166] and decedent retained possession or enjoyment of Moore farms within the meaning of I.R.C. § 2036(a)(1). [167] The USTC found decedent’s transfer of Moore Farms to the FLP did not qualify for the bona fide sale exception because the formation of the FLP lacked a significant nontax reason. [168] The Tax Court reached this conclusion because: (1) there was no “business” for the family to run after decedent sold the farm within five days of its transfer to the FLP; (2) the business retained significant amounts of capital for any “alleged” creditors who may make claims; (3) decedent began planning his estate only after he faced significant health problems; (4) decedent told his estate planning attorney he wanted to “save millions of dollars of taxes” through his estate plan; and (5) the decedent’s unilateral actions underlined the general testamentary nature of the plan and transfers. [169] Because the formation of the FLP failed to have a significant nontax purpose, the USTC did not consider the issue of value—i.e. whether decedent’s transfer was for adequate and full consideration—and moved to the “retained possession or enjoyment of” the transferred asset part of the analysis. [170]

The USTC concluded decedent retained possession or enjoyment of Moore Farms after he transferred it to the FLP. [171] Applying the two-prong I.R.C. § 2036(a)(1) test from Strangi, [172] the USTC found decedent retained a “substantial present economic benefit” from the farm after he transferred it. [173] The Tax Court pointed to several facts to support its conclusion. [174] First, decedent continued to live on the property and run the farm as he did before the sale, and did so up until his death. [175] Second, while decedent retained sufficient assets to support himself unlike the decedent in Strangi, [176] he did not draw upon them. [177] Instead, he used FLP assets to pay his personal expenses and make gifts. [178] Finally, despite not holding the controlling general interest, decedent ignored formalities and continued to exercise control over the farm and make unilateral decisions. [179] The USTC reasoned these facts indicated an implicit understanding between Moore and his children that he would continue to use the FLP assets and that his relationship with the transferred assets “changed formally, not practically.” [180] Thus, the Tax Court held the value of the farm should be included in the value of the gross estate under I.R.C. § 2036(a)(1). [181]

V. Analysis

A. The Post-Moore Rules

After Moore, I.R.C. § 2036(a) tends to bring all deathbed property transfers back into the gross estate, [182] unless: (1) the estate can show the sale was a bona fide sale for adequate and full consideration; [183] or (2) the decedent did not retain a right to possession, enjoyment, or rights to the issue of the transferred property. [184] A sale is bona fide, in the family limited partnership context, when the objective evidence establishes the existence of a “legitimate and significant nontax reason” for the creation and transfer of assets to the FLP. [185] A sale is for adequate and full consideration when the decedent receives a “partnership interests proportionate to the value of the property transferred.” [186] Essentially, the bona fide sale prong is a question of motive, while the “for adequate and full consideration” prong is a question of value. [187]

If a transfer does not qualify under the “bona fide sale” exception, the analysis moves to the second exception. A decedent retains the right to possession or enjoyment if the decedent retains “substantial present economic benefit” from the property after transferring it and there is an “express or implied agreement” that the decedent will continue to possess or enjoy the property “at the time of transfer.” [188] While the right to the issue of the transferred property part of the rule is the least developed, the court has held the ability “to act, alone or in conjunction with others,” [189] to cause partnership distributions [190] or dissolve the partnership triggers inclusion under I.R.C. § 2036(a)(2). [191]

B. The Policy Behind these Rules

The policy behind these rules is clear—prevent the circumvention of federal estate tax by including the value of any inter vivos transfer where the decedent retains an interest or right in the transferred property in the decedent’s gross estate. [192] I.R.C. § 2035 works in conjunction with I.R.C. § 2036 to pull the value of any gift transferred or gift taxes paid within three years of the decedent’s death back into the gross estate. [193] The purpose of I.R.C. § 2035 is the same as the purpose for I.R.C. § 2036, except I.R.C. § 2035 focuses on a different method of transfer: a gratuitous transfer versus a transfer for consideration. [194] While the policy for these rules is simple, whether it is correct is a more complicated question.

As a basic tenant of property and trusts and estates law, individuals have the right to transfer property in life or at death. [195] This “right of disposition” is one of the “sticks” in the bundle of rights that accompany property ownership. [196] The issue with I.R.C. § 2036, and by extension I.R.C. § 2035, is that these rules infringe on this right when an individual makes a deathbed transfer. Although the transfer’s substance is respected, I.R.C. § 2036 violates the transaction’s financial effect by pulling the value of the transferred property back into the decedent’s gross estate. If individuals have the right to transfer property, why does sudden illness or other desperate conditions change this right? In the context of deathbed transfers of family limited partnership interests, the IRS could alternatively adjust the valuation discount and then count the value of the transfer against the decedent’s Unified Credit without pulling the full value of the asset back into the decedent’s gross estate. This approach more directly addresses the IRS’s central concern of the size of the valuation discount. Unfortunately, instead of dealing with the issue in a more straightforward manner, the IRS invokes I.R.C. § 2036 and in turn, seems to create a fraudulent transfer statute.

While adjusting the applied valuation discount is a more precise method, the practical reason for applying I.R.C. § 2036 likely boils down to process simplification. When a dispute arises, it is much less complicated for the court to include the full undiscounted value of the transferred FLP interest in the decedent’s gross estate. This also allows the court to avoid having to make difficult judgements regarding the value of an asset. In the court’s opinion, these types of assessments are better left for CPAs and other valuation experts. While an in-depth discussion of the interplay between I.R.C. § 2036 and the consideration offset provisions in I.R.C. § 2043 is beyond the scope of this article, one only has to look at the Tax Court’s discussion in Estate of Moore regarding of the net inclusion amount to get an idea of just how complex valuation and discounting calculations can get. [197]

With the court’s increased use of I.R.C. § 2036 to pull the value of decedent’s deathbed transfers back into the gross estate raises serious concerns, the court’s decisions can be summed up by the saying “bad facts make bad law.” For example, in Estate of Moore, the decedent knew he only had months to live and clearly stated the purpose of his deathbed planning was to “save the millions of dollars of taxes.” [198] Furthermore, the decedent continued to live on the property and run the farm as he did before the sale and continuously used FLP assets to pay personal expenses. [199] Facts such as these made it easy for the Tax Court to hold for inclusion under I.R.C. § 2036. [200] The facts of Estate of Powell tell a similar story. The day before the partnership was funded, two hospital doctors indicated the decedent lacked capacity and “could not act on her own behalf.” [201] Additionally, objective evidence indicated the FLP had no business purpose. [202] It was merely an investment vehicle for the decedent and her two sons. [203]

While the deathbed element does increase the chances that inclusion may occur, simple steps can be taken to avoid triggering I.R.C. § 2036. In order to qualify for the bona fide sale exception to I.R.C. § 2036, individuals should first and foremost establish a nontax motive for creating the FLP. The decedent in Estate of Moore did not fail the bona fide sale exception because he had a tax purpose for the formation for the FLP, he failed the exception because he only had a significant nontax reason for the transfer to the FLP. [204] To provide additional factual support, the nontax reasons for the entity’s formation can be listed in the recitals of the FLP’s partnership agreement. Furthermore, to increase the chances of satisfying the second prong of the bona fide exception, the interest credited to each partner should be proportional to the fair market of the value of the assets each partner contributed to the FLP. Also, the assets contributed by each partner to the FLP should be properly credited to the respective capital accounts. In the case of an IRS challenge, this provides support to the estate’s position that entity formalities were followed.

When it comes to funding and operating the FLP, additional steps should be taken to avoid the perception that a decedent retained an interest or right in the assets transferred to the FLP. As the court in Strangi made clear, [205] the decedent should not transfer all of their assets to the FLP. If the decedent does, the IRS will likely argue there was an implied agreement for the decedent to continue using the assets as they did before the transfer. Additionally, the decedent keeping sufficient assets outside of the FLP avoids the pitfall of the FLP to pay post-death expenses such as funeral costs. In the same vein as keeping sufficient assets outside of the FLP, the decedent should not commingle FLP and personal funds. This was a major factor in the USTC applying I.R.C. § 2036 in both Strangi [206] and Estate of Moore. [207] Another important point is to continue or further the entity’s nontax business purpose. This point was highlighted by the first transfer in Estate of Bongard. [208] Decedent’s transfer of stock to the holding company did not trigger I.R.C. § 2036 because pooling family assets in the holding company was part of a legitimate nontax business decision to facilitate the sale of the business. [209] This plan to continue legitimate business operations contrasts with the circumstances in Estate of Moore where the decedent sold the farming business days after forming the FLP. [210] Finally, decedents should make sure to divest themselves of any rights they may have alone or in conjunction with another to affect the operations or distribution of partnership assets. Estate of Powell made clear different individuals should act as the decedent’s attorney-in-fact and manager of the FLP. [211]

C. Where We Go from Here

This string of recent I.R.C. § 2036 decisions make it obvious that the law is moving in an ever-more-restrictive direction. The courts historically have not often used I.R.C. § 2036 to pull the value of assets back into a decedent’s estate. However, this is no longer the case. Due to the IRS’s insistence, the courts have increasingly used I.R.C § 2036 as the main weapon against family limited partnerships asset transfers. The IRS often view FLPs “as efforts to pass valuable assets to one’s heirs at a discount for lack of marketability and lack of control.” [212] This seems to reflect that judges may be implying a general-purpose common law that all types of tax planning must get more restrictive if tax reduction is the principle purpose. This could be a result of the numerous income tax economic substance cases over the last two decades. The economic substance doctrine and the “legitimate and significant nontax purpose” requirement of I.R.C. § 2036(a) share a similar rationale and seek to invalidate aspects of tax transactions.

Beyond the reasons for increased use of I.R.C. § 2036, two aspects of the recent court decisions indicate even greater use of I.R.C. § 2036 to restrict the tax benefits of deathbed transfers. The first comes from Estate of Powell. While the case law regarding the bona fide exception and the restriction on the retention of “possession or enjoyment” of the transferred asset of I.R.C. § 2036(a)(1) are fairly well developed, significant questions remain as to what “rights” fall under I.R.C. § 2036(a)(2). While the court found for inclusion under I.R.C. § 2036(a)(1), [213] the reasoning in Strangi regarding I.R.C. § 2036(a)(2) indicated inclusion may be triggered by decedent’s attorney-in-fact also serving as manager of the FLP. [214] Estate of Powell took this retention of a “right” even further by holding decedent’s cooperative ability to dissolve the FLP with her sons, although decedent made no effort to exercise such a right, constituted a right in conjunction with others to designate the persons who shall possess or enjoy the transferred property within the meaning of I.R.C. § 2036(a)(2). [215] Taking these decision together, they seem to indicate that only the possibility—and not the actual execution—of affecting the operation or distributions of the FLP will pull the value of the transferred assets back into the gross estate. With this as the precedent, future decisions will likely hold things such as the retention of minority interest voting rights cause inclusion under I.R.C. § 2036(a)(2).

The second, and likely more important, indication of greater use of I.R.C. § 2036 to invalidate the tax benefits of deathbed transfers is the tone of the Tax Court’s ruling in Estate of Moore. Initially, the Tax Court stated that the three-part test developed in Estate of Bongard was the test that determined whether I.R.C § 2036 recaptures transferred property back into the decedent’s estate. [216] While the elements of the Estate of Bongard test are still present in the Estate of Moore decision, the emphasis has shifted. [217] In Estate of Moore, when discussing the Estate of Bongard test, the Tax Court stated, “[a]nother way of looking at this--and another way we frequently discuss it--is to look at 2036(a) as creating a general rule that brings back all the property that a decedent transfers before he dies, subject to two exceptions.” [218] Instead of the court “not respect[ing] a transfer” if it does not meet the three requirements under the Estate of Bongard test, [219] the transfer is now automatically not respected and the estate must reestablish the transfer’s validity. [220]

As stated above, this seems to indicate judges will apply a general-purpose common law that all types of tax planning (in which the primary purpose is tax reduction) “smell bad” and the decedent’s estate must prove otherwise. This has procedural and practical consequences as it increases the cost and time required to settle a decedent’s estate. As indicated supra Part IV. Section B, forward-looking steps can be taken to significantly reduce the chance transfers to an FLP will not be included under I.R.C. § 2036. The problem with deathbed transfers though is that many of these planning decisions are made in a chaotic and stressful environment. This has the compounded effect of making it more difficult for individuals to plan their estate to avoid inclusion and to produce sufficient evidence that concerns beyond tax savings motivated their formation and transfer of assets to a family limited partnership. With this in mind, it is of the utmost importance for individuals conducting deathbed planning to seek appropriate counsel and avoid the increasing “squeeze” of I.R.C. § 2036.

V. Conclusion

This article discussed the formation and purpose of family limited partnerships. Further, it outlined the advantages of using such as an estate planning vehicle. This article also detailed the requirements of I.R.C. § 2036 and the seminal cases interpreting the statute. Moreover, the present state of I.R.C. § 2036 was reviewed and the article provided recommendations to avoid the value of transferred assets included in the decedent’s gross estate. Finally, this article discussed the implications of the court’s increased use of I.R.C. § 2036 and the likely results of this change in judicial review.

If you have clients in the upper income brackets who share these concerns, the attorneys at Cantley Dietrich would enjoy having a conversation with you about how you can protect them from some of the challenges they will likely face in the next few years.