The value of stock in a closely held corporation (CHC) transferred by a husband and wife to family trusts and a charitable foundation was the value reached by using a formula clause that was set forth in an assignment agreement. After converting the CHC to an S corporation, the couple decided to transfer a portion of their stock in the CHC to their three adult daughters, in trust, and a charitable foundation. Because the stock in the CHC was difficult to value, the couple chose to utilize a formula clause in their assignment agreement in order to set the value of the stock in dollars as opposed to percentages at the time of the transfer.
Formula clauses are not, as a rule, against public policy. Distinguishable fromF. Proctor, CA-4, 44-1 USTC ¶10,123, the formula clause in this case did not provide a condition subsequent that would defeat the transfer. The formula clause also furthered a public policy goal of encouraging gifts to charities. In addition, there was no evidence of collusion between any of the parties. The foundation was represented by independent counsel and had a fiduciary duty to make certain that it received the proper number of shares under the formula clause. Thus, the formula clause was a product of an arm’s-length transaction. Consequently, the couple was entitled to deduct the full value of the charitable contribution made to the foundation and did not owe any additional gift tax for the transfer of stock in the CHC to the trusts.
J. Hendrix, TC Memo. 2011-133, Dec. 58,662(M)
Code Sec. 2512
CCH Reference – FINH ¶10,730.62
Code Sec. 2522
CCH Reference – FINH ¶11,513.28
Tax Research Consultant
CCH Reference – TRC ESTGIFT: 3,064