-40-
Therefore, for example, where stock is transferred or bequeathed to a spouse of the
transferor, or to a trust for the spouse’s benefit, subject to a buy sell agreement, the issue arises
as to whether the purchase options in favor of other third parties could be deemed to cause the
termination of the spouse's interest. If this is the case, then the gift to the spouse will be a
"terminable interest" which will not qualify for the marital deduction.
In TAM 9147065, the decedent bequeathed all of his stock in a closely held corporation
to a QTIP trust for the benefit of the surviving spouse. Under the decedent's will, however, the
decedent's two children had the option to purchase his stock in the closely held corporation at
any time within the next two years at an option price of $1,000 per share. At the time of the
decedent's death, the fair market value of each share of stock in the decedent's estate was
$11,000 per share.
In that case, the estate sought to claim the marital deduction for the value of the stock
passing to the QTIP trust. However, the Internal Revenue Service disallowed the marital
deduction to the extent of the stock transferred to the QTIP trust. In light of the fact that the
option price was so far substantially below current fair market value, the IRS concluded that the
existence of the option constituted a power of appointment in favor of the decedent's children. In
essence, over 90% of the value of the stock placed in the trust would pass to the sons upon their
exercise of the purchase options. Thus, the sons had a power of appointment over the marital
trust property in favor of themselves which caused the trust to be disqualified from the marital
deduction. See also TAM 9139001 (April 30, 1991).
Likewise, in Renaldi v U. S., 97-2 USTC ¶ 60,281 (Fed. Cl. 1997), aff’d, 178 F. 3d 1308
(Fed. Cir. 1998), the court held that a bequest of stock to a QTIP trust did not qualify for the
marital deduction, because the decedent’s son was given the right, under the decedent’s Will, to
purchase stock at less than fair value - even though the stock was actually redeemed at fair
market value before the estate made the QTIP election.
III. Provisions in the Buy-Sell Agreement May Prevent Gifts of Business Interests
From Qualifying for the $13,000 Annual Gift Tax Exclusion.
In Hackl v. Commissioner, 335 F.3d 664 (7
th
Cir. July 7, 2003), aff'g, 118 T.C. 279
(2002), Albert and Christine created Treeco LLC, to own and operate a tree farm. They
anticipated that the farm would produce no current income, but would eventually produce
significant capital gains. The taxpayers formed the LLC, transferred assets to it, and then
assigned LLC membership interests to their children, their grandchildren, and to trusts for their
grandchildren.
The LLC Operating Agreement named Albert as the manager of the LLC for life, and
gave him the right to determine when and if distributions would be made, but any distributions
had to be made to all members of the LLC, in proportion to their membership interests. No
member could withdraw any of his or her capital account or compel the LLC to make any
distributions without the approval of the manager.