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Treasury Issues Broad Proposed Section 2704 RegulationsTreasury Issues Broad Proposed Section 2704 Regulations

If adopted, they would curb minority discounts.

Treasury department
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After months of anticipation, the Treasury has issued proposed regulations under Internal Revenue Code Section 2704. They appear to be very far-reaching and, if adopted in their current form, may be challenged in light of the section’s legislative history.

A hearing has been scheduled about the proposed regulations on Dec. 1. The Treasury has stated that the final regulations won’t be effective until at least 30 days after they become final. Hence, they may be effective for lifetime and deathtime transfers soon after the close of this year. Because of their potential impact, taxpayers may want to consider taking action before year-end if they hold interests in entities which essentially are closely held by the family.

The details provided in the proposed regulations are significant and deserve careful study. 

By way of background, IRC Section 2704 was enacted effective Oct. 9, 1990. The section has two broad aspects. Section 2704(a) essentially causes a taxable event to occur when liquidation or voting rights lapse. Section 2704(b) essentially provides that in valuing property for estate and gift tax purposes, certain restrictions on the ability of an entity to liquidate are disregarded. These provisions apply only in effect to closely held (family) entities.

Section 2704(b) grants the Treasury the authority to issue regulations to cause certain other restrictions that reduce valuation to be disregarded. And that’s what the proposed regulations are intended to do. 

Although the details are significant, the bottom line is that the proposed regulations would appear to eliminate almost all minority (lack of control) discounts for closely held entity interests, including active businesses owned by a family. To accomplish that, restrictions under the governing documents and even those under state law would be disregarded for valuation purposes. 

Trusts & Estates will cover the proposed regulations in more detail in subsequent articles.

 

 

About the Authors

Jonathan G. Blattmachr

Principal, ILS Management, LLC

 

Mr. Blattmachr is a Principal in ILS Management, LLC and a retired member of Milbank Tweed Hadley & McCloy LLP in New York, NY and of the Alaska, California and New York Bars. He is recognized as one of the most creative trusts and estates lawyers in the country and is listed in The Best Lawyers in America. He has written and lectured extensively on estate and trust taxation and charitable giving.

Mr. Blattmachr graduated from Columbia University School of Law cum laude, where he was recognized as a Harlan Fiske Stone Scholar, and received his A.B. degree from Bucknell University, majoring in mathematics. He has served as a lecturer-in-law of the Columbia University School of Law and is an Adjunct Professor of Law at New York University Law School in its Masters in Tax Program (LLM). He is a former chairperson of the Trusts & Estates Law Section of the New York State Bar Association and of several committees of the American Bar Association. Mr. Blattmachr is a Fellow and a former Regent of the American College of Trust and Estate Counsel and past chair of its Estate and Gift Tax Committee. He is author or co-author of five books and more than 400 articles on estate planning and tax topics.

Among professional activities, which are too numerous to list, Mr. Blattmachr has served as an Advisor on The American Law Institute, Restatement of the Law, Trusts 3rd; and as a Fellow of The New York Bar Foundation and a member of the American Bar Foundation.

Mitchell M. Gans

Mitchell M. Gans is a Rivkin Radler Distinguished Professor of Law at Hofstra University in Hempstead, New York. Before joining the Hofstra faculty, Professor Gans had been an associate in the Tax and Trust and Estates Departments at the New York City law firm of Simpson, Thacher & Bartlett and law clerk to Associate Judge Jacob D. Fuchsberg, New York State Court of Appeals. He is an Academic Fellow at the American College of Trust and Estate Counsel. He is also an Adjunct Professor of Law at the NYU School of Law.

Professor Gans is a leading scholar in the estate-and-gift tax area. He is a frequent lecturer for ALI-ABA, NYU, the American College of Trust and Estate Counsel, the ABA and other groups. He currently serves on an advisory committee to the New York State legislature that is studying the revision of trust law in New York. Professor Gans has published articles in the Boston University Law Review, Emory Law Journal, University of Georgia Law Review, Notre Dame Law Review, Virginia Tax Review, Florida Tax Review and Tax Notes, among others. He is also the co-author of a book on the ethical obligations the Treasury imposes on tax practitioners.

 

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