Newhouse v. Comm'r of Internal Revenue (In re Estate of Newhouse)

• Decision Date: 28 February 1990
• Docket Number: Docket No. 23588-83.
• Citation: 94 T.C. 193,94 T.C. No. 14
• Parties: ESTATE OF SAMUEL I. NEWHOUSE, DECEASED, SAMUEL I. NEWHOUSE, JR. AND DONALD E. NEWHOUSE, EXECUTORS, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
• Court: U.S. Tax Court

94 T.C. 193
94 T.C. No. 14

ESTATE OF SAMUEL I. NEWHOUSE, DECEASED, SAMUEL I. NEWHOUSE, JR. AND DONALD E. NEWHOUSE, EXECUTORS, Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 23588-83.

United States Tax Court

Filed February 28, 1990.

Decedent, N, owned all of the outstanding shares of Class A voting and Class B nonvoting common stock in a closely held corporation, A, at his death. Other family members owned all of the outstanding shares of A's preferred stock. A's corporate charter provided that the voting common stock had exclusive rights to elect the Board of Directors, that all three classes of stock participated pro rata in dividends declared out of earnings, that the preferred stock had a liquidation preference, and that only the common stock could vote on plans for merger. The preferred stock was authorized by statute to vote on corporate liquidation.

Both P and R submitted testimony and reports of numerous expert witnesses about the rights of A's common shareholder under state law to extract wealth from the corporation through redemption, dividends or merger and liquidation. The experts, whose opinions were well reasoned, disagreed about almost every issue, and we find that a willing buyer would have been uncertain about the rights and privileges of A's common stock.

N also owned 100 shares of common stock in NB, and other family members owned the remaining 125 shares of NB.

HELD, where a state law issue about the relative rights and duties of different classes of stock is incapable of resolution except through actual litigation, as evidenced by the profound disagreement of several noted experts, a willing buyer would experience uncertainty about the rights of the common shareholder. The willing buyer and willing seller would take into account the likelihood of protracted and unpredictable litigation in negotiating a purchase price.

HELD FURTHER, the fair market value of N's stock in A is determined.

HELD FURTHER, N's interest in closely held NB, representing 44.44 percent of the voting stock, does not control NB and will not carry a control premium.

HELD FURTHER, the fair market value of N's NB common stock is determined.

[94 T.C. 194]

Albert H. Turkus, Judith A. Mather, James A. Treaner III, Bernard J. Long Jr., Linda A. Fritts, and Richard L. Braunstein, for the petitioners.

Robert S. Shilliday, Jr., Albert L. Sandlin, and Howard P. Levine, for the respondent.

WILLIAMS, JUDGE:

The Commissioner determined a deficiency in the Federal estate tax due from the estate of Samuel I. Newhouse in the amount of $609,519,855. The Commissioner also determined an addition to tax for fraud pursuant to section 6653(b)¹ in the amount of $304,759,927. The Commissioner has conceded the addition to tax for fraud.

After concessions, the remaining issues for our decision are: (1) the value, for purposes of the Federal estate tax, of 10 shares of Class A common stock and 990 shares of Class B common stock of Advance Publications, Inc., owned by Samuel I. Newhouse, Sr. (‘Newhouse‘) at the time of his

[94 T.C. 195]

death, and (2) the value, for purposes of the Federal estate tax, of 100 shares of common stock in Newhouse Broadcasting Company owned by Newhouse at the time of his death.

FINDINGS OF FACT

Some of the facts were stipulated and are so found. Newhouse died testate on August 29, 1979. His sons, S.I. Newhouse, Jr. (‘S.I. Jr.‘), and Donald E. Newhouse (‘Donald‘), were duly appointed executors of his estate. At the time of his death, Newhouse resided in Palm Beach, Florida. The executors timely filed a Federal estate tax return on May 27, 1980, and elected to value the Newhouse estate as of February 29, 1980, the alternate valuation date.

On Schedule B of the estate tax return, the executors valued the 10 shares of Class A common stock and the 990 shares of Class B common stock in Advance Publications, Inc. (‘Advance‘), at $8,595,000 and $170,181,000, respectively, based on an appraisal by Chemical Bank. Also on Schedule B of the estate tax return, the executors valued the 100 shares of common stock in Newhouse Broadcasting Company (‘N.B. Co.‘) at $68,300,000. In the notice of deficiency dated May 18, 1983, the Commissioner valued the 10 shares Class A common stock and the 990 shares of Class B common stock in Advance at $420,000,000 and $811,800,000, respectively, and valued the 100 shares of common stock in N.B. Co. at $91,600,000. On August 12, 1983, petitioners timely filed their petition in this case.

I. VALUE OF ADVANCE COMMON STOCK

A. ORGANIZATION AND OPERATIONS

Advance is a corporation organized under the laws of the State of New York that publishes newspapers and magazines. Advance's principal place of business was and always has been in New York. At the time of Newhouse's death, the officers of Advance were: Newhouse, President and Treasurer; Mitzi Newhouse, Newhouse's wife, Vice President; S.I. Jr., Vice President; Donald, Secretary.

In 1922, Newhouse and Judge Hyman Lazarus, a New Jersey lawyer, formed a partnership to acquire 51 percent of the stock of the Staten Island Advance which published a

[94 T.C. 196]

newspaper, The Staten Island Advance. In 1924, Newhouse bought Judge Lazarus' shares and soon after purchased the remaining 49 percent. Newhouse filed a Certificate of Incorporation (the ‘Certificate‘) for the Staten Island Advance Company, Inc., Advance's predecessor, on May 12, 1924. From the time Newhouse incorporated Advance, Newhouse's brothers Theodore (‘Ted‘) and Norman were employed at Advance, and all three brothers shared equally in the management of the business.

In 1932 Advance acquired the controlling interest in the Long Island Daily Press Publishing Company, Inc., the first of a long line of newspaper acquisitions. In 1939, Advance bought two newspaper properties in Syracuse, New York. Advance further enlarged its operations by purchasing an Oregon newspaper in 1950 and newspapers in Alabama in 1956. On February 29, 1980, Advance operated either by itself or through a wholly owned subsidiary, 50 newspapers in 22 markets as well as magazines published by Conde Nast Publications, Inc. (‘Conde Nast‘).²After each acquisition one of the brothers was assigned primary responsibility for the acquired property and assumed management of its operations.

[94 T.C. 197]

To provide on-site management, one of the three brothers would visit each newspaper located outside of the New York City area weekly or monthly. The visiting brother would meet with the local publisher and department heads to discuss circulation, current advertising and advertising development, accounts, compensation plans, editorial quality, production facilities, and distribution. After S.I. Jr. and Donald joined the management team, the five family members would meet frequently to discuss the operations of the out-of-town newspapers and plans for the acquisition of new properties. The topics at the family meetings included the purchase of new capital equipment, consideration of policies about purchasing newsprint, the setting of rates, and discussions of circulation techniques and distribution policies.

When there was no scheduled meeting, the five family members, who all arrived at work very early in the morning, would speak with each other by telephone before other employees had come to work. Between monthly visits they communicated by telephone with the local management of newspapers they oversaw and regularly received financial reports, advertising reports, circulation reports, and other pertinent data. Financial and operating reports from the out- of-town newspapers were shared among the five family members. The family members considered the periodic visits to the out-of-town properties and the consensus decision-making to be hallmarks of their management style. Throughout Advance's history, all major decisions were reached by unanimous agreement after discussion in which all partook. Each visiting family member would write a report on the management of the out-of-town newspaper (issues, decisions, future) that was circulated to the other family members. While no person dominated the discussions, some deference in matters relating to a particular newspaper was shown to the family member who was responsible for that newspaper. Decisions were never made by voting. The consensus style of management has been utilized throughout the time the family has managed Advance. Despite disagreements, discussions always proved fruitful and consensus was reached.

[94 T.C. 198]

In the 1950's S.I. Jr. and Donald joined their father and uncles in the business. Working primarily under the supervision of their uncles, S.I. Jr. and Donald learned the family business from the ground up. In the beginning both Donald and S.I. Jr. attended the family management meetings as mere observers but by the mid-1960's their advice was sought by their father and uncles. After several years of learning editorial and production management, S.I. Jr. and Donald were each assigned to manage an out-of-town property. S.I. Jr. worked in the Conde Nast organization and Donald started at the Long Island and the Jersey City newspapers.

The management of Advance was eventually shared among all five of the family members. Until the last year of his life when he became too ill to travel, Newhouse supervised the newspaper properties in Newark, New Jersey; Syracuse, New York; Harrisburg, Pennsylvania; St. Louis, Missouri; New Orleans, Louisiana; and Mobile, Alabama. Ted managed the newspaper properties in Portland, Oregon; Birmingham, Alabama; Huntsville, Alabama; Springfield, Massachusetts and later the Booth divisions in Michigan. Norman was responsible for the newspaper in Cleveland, Ohio and later for the newspapers in New Orleans and Mobile when he moved to New Orleans in the late 1960's. S.I. Jr. made periodic visits to the newspaper in Cleveland, Ohio to help Norman and managed Conde Nast; after his father became ill, he oversaw St. Louis. Donald traveled...