Estate of Thompson v. C.I.R.

• Citation: 382 F.3d 367
• Decision Date: 01 September 2004
• Docket Number: No. 03-3173.,03-3173.
• Parties: ESTATE OF Theodore THOMPSON, Deceased, Betsy T. Turner, Executrix, Appellant v. COMMISSIONER OF INTERNAL REVENUE.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 367

382 F.3d 367

ESTATE OF Theodore THOMPSON, Deceased, Betsy T. Turner, Executrix, Appellant v. COMMISSIONER OF INTERNAL REVENUE.

No. 03-3173.

United States Court of Appeals, Third Circuit.

Argued April 21, 2004.

September 1, 2004.

Appeal from the United States Tax Court, Julian I. Jacobs, J.

COPYRIGHT MATERIAL OMITTED

Victor F. Keen, (Argued), Thomas W. Ostrander, Duane Morris LLP, Philadelphia, PA, for Appellant.

Michael J. Haungs, (Argued), Jonathan S. Cohen, United States Department of Justice, Tax Division, Washington, DC, for Appellee.

Before SCIRICA, Chief Judge, ROSENN and GREENBERG, Circuit Judges.

SCIRICA, Chief Judge.

This case involves the application of § 2036(a) of the Internal Revenue Code, 26 U.S.C. § 2036(a), to assets transferred inter vivos to family limited partnerships. Theodore R. Thompson transferred $2.8 million in securities and other assets to two family limited partnerships in exchange for pro-rata partnership interests. Upon his death, Thompson's estate filed a federal estate tax return which applied a forty percent discount to the value of decedent's partnership interests for lack of control and marketability. The Commissioner of Internal Revenue filed a notice of estate tax deficiency in the amount of $707,054, applying § 2036(a) to return to the gross estate the full date of death value of the transferred assets. The Tax Court sustained application of § 2036(a) after finding decedent retained lifetime control and enjoyment of the transferred assets, and concluding the transfer of assets was not a bona fide sale for adequate and full consideration. Estate of Theodore R. Thompson v. Comm'r, T.C. Memo 2002-246; 84 T.C.M. (CCH), 374 (2002), 2002 Tax Ct. Memo LEXIS 254. The estate appeals. We will affirm.

I.

In the early 1990s, decedent Theodore R. Thompson, along with his son Robert Thompson and daughter Betsy Turner, began to investigate estate plans for managing his assets.¹ In April 1993, they implemented the Fortress Plan,² an estate plan offered by the Fortress Financial Group, Inc. that utilized family limited partnerships to protect family assets. A financial advisor to decedent's family stated the primary advantages of the Fortress Plan included: "(1) lowering the taxable value of the estate, (2) maximizing the preservation of assets, (3) reducing income taxes by having the corporate general partner provide medical, retirement, and `income splitting' benefits for family members, and (4) facilitating family and charitable giving." Thompson, 84 T.C.M. at 376. The advisor also stated that, "[a]ll of the benefits above can be achieved while total control of all assets is retained by the directors of the Corporate General Partner." Id. Pursuant to the plan, decedent and his family formed two limited partnerships and two corporations to serve as general partners.

A.

On April 21, 1993, decedent, his daughter Betsy and her husband George Turner formed the Turner Partnership and Turner Corporation. Decedent contributed $1,286,000 in securities, along with notes receivable from Betsy Turner's children totaling $125,000, in exchange for a 95.4% limited partnership interest in the Turner Partnership. George Turner contributed $1,000 in cash and real property in the state of Vermont valued at $49,000 in exchange for a 3.54% limited partnership interest. Turner Corporation, the sole general partner, held the remaining 1.06% interest.³ Shares in Turner Corporation were issued to decedent (490 shares or 49%), Betsy Turner (245 shares or 24.5%), George Turner (245 shares or 24.5%), and National Foundation, Inc. (20 shares or 2%), an unrelated tax-exempt entity. Decedent, Betsy and George Turner served as directors and officers of Turner Corporation.

Decedent and his son Robert Thompson formed the Thompson Partnership on April 30, 1993, and the Thompson Corporation on April 21, 1993. Decedent contributed $1,118,500 in securities, along with notes receivable totaling $293,000, in exchange for a 62.27% limited partnership interest. Robert Thompson contributed mutual funds worth $372,000, and a ranch property in Norwood, Colorado, appraised at $460,000, in exchange for a 36.72% limited partnership interest. Thompson Corporation, as general partner, held the remaining 1.01% interest. Decedent and Robert Thompson each held 490 shares (49%) of Thompson Corporation. Robert H. Thompson, an unrelated third party, held the remaining 2% interest. Robert Thompson, Robert H. Thompson and decedent served as officers and directors of Thompson Corporation.

As of July 1993, decedent, then age ninety-five, had transferred $2.8 million in assets—$2.5 million in the form of marketable securities—to the Turner and Thompson Partnerships. Decedent retained $153,000 in personal assets, and received an annual income of $14,000 from two annuities and Social Security. At the time of transfer, decedent had annual expenses of $57,202, and an actuarial life expectancy of 4.1 years. Theodore R. Thompson died on May 15, 1995.

B.

1.

The Turner Partnership assets consisted primarily of marketable securities contributed by decedent, which the partnership continued to hold in decedent's brokerage account with minimal post-transfer trading. After formation, however, individual partners contributed additional assets to the Turner Partnership. In December 1994, Betsy and George Turner contributed a 22-acre parcel of land adjacent to their private residence, known as the Woodlands Property. Betsy and George Turner also assigned to the Turner Partnership their interests in a real estate partnership, known as Woodside Properties, which held six apartment units. Phoebe and Betsy Turner retained title to the underlying real estate assets after transfer.

The Turner Partnership engaged in several business transactions, although none produced economic gains for the partnership. The structure of the Turner Partnership facilitated this result. The partners amended the Turner Partnership agreement in 1994, retroactively effective to April 23, 1993, to allocate all gains and losses from, and distribution of, real estate contributed to the partnership to the individual contributing partners. As a result, income from the sale of timber from the Vermont property went directly to the contributing partner, George Turner, and not to the partnership as a whole. Likewise, when Betsy and George Turner sold the Woodlands Property along with their residence for $550,000, the Turner Partnership received $12,351 of the proceeds, an amount equal to its basis⁴ in the property.

In 1993, the Turner Partnership invested $186,000 in a modular home construction project brokered by Phoebe Turner known as the Lewisville Properties. The property was sold in 1995 for a loss of $60,000. Phoebe Turner received a $9,120 commission on the transaction.

The Turner Partnership also made loans to members of the Turner family. Although the partnership formally charged family members interest on these loans, interest payments were often late or not paid at all, and loans were frequently reamortized. But the partnership never pursued enforcement action against any of its debtors nor made loans to anyone outside the Turner family.

2.

Like the Turner Partnership, most of the Thompson Partnership assets consisted of marketable securities contributed by decedent and Robert Thompson. Here again, post-transfer trading in the securities was low. The only other operational activities of the Thompson Partnership related to the Norwood, Colorado ranch contributed by Robert Thompson. Robert previously used the ranch as his primary residence, and continued to do so after transfer paying an annual rent of $12,000. Likewise, Robert Thompson continued to raise mules on the property and directly received income from the sale of mules. The record does not demonstrate any other business or commercial activities on the Norwood ranch. Nevertheless, for the years 1993 through 1995, the Thompson Partnership paid the Thompson Corporation an annual management fee for the Norwood ranch in the amounts of $23,625, $45,000, and $47,500, respectively. Thompson Corporation in turn paid Robert Thompson an annual salary of $32,001, and Karen Thompson, Robert's wife, a monthly salary of $350. Thompson Corporation also carried insurance on Robert and Karen Thompson, and paid various personal expenses. The Thompson Partnership claimed losses from the operation of the ranch on its tax returns for the years 1993 through 1996.

3.

In addition to the foregoing activities, both the Turner and Thompson Partnerships made distributions of cash and partnership interests to decedent during his lifetime. In 1993, the Turner and Thompson Partnerships made cash distributions of $40,000 each to decedent which he used to provide holiday gifts to family members. Again in 1995, the Thompson and Turner Partnerships made cash distributions to decedent of $45,500 and $45,220 respectively. During the same time period, decedent made gifts of interests in both partnerships to individual family members. In March 1995, the Thompson Partnership distributed $12,500 to decedent to pay for certain personal expenses.⁵ All of these distributions were reflected on decedent's Schedule K-1 and recorded as reductions in his partnership capital accounts.

C.

As noted, decedent died testate on May 15, 1995, at age ninety-seven. At the time of his death, decedent held approximately $89,000 in liquid assets, a promissory note in principal amount of approximately $9,000, a majority interest in the Turner and Thompson Partnerships, and shares in their respective corporate general partners. On or about May 27, 1995, the Turner and Thompson Partnerships respectively sold $347,000 and $350,000 in securities to partially fund bequests in decedent's will and pay decedent's estate taxes.

Decedent's executors filed a federal estate tax return, Form 706, with the Internal Revenue Service on February 21, 1996, and filed a...