FLP Wars UpdateFLP Wars Update

John W. Porter, partner, Baker Botts LLP, Houston

For much of the last decade, the Internal Revenue Service has engaged in a frontal assault on the use of family limited partnerships (FLPs) and other closely held entities for estate-planning purposes. In its pronouncements, audits and litigation, the IRS has taken the position that an FLP can be disregarded for estate and gift tax purposes, notwithstanding the fact that the entity was valid under state law.¹

Over the years, the IRS has asserted several alternate theories in its attempts to disregard an entity. The Service's arguments have included assertions that the entity lacks economic substance, that the entity should be ignored under a “substance over form” analysis, and that the enti...