Estate of Clara M. Morrissette, Kenneth Morrissette, Donald J. Morrissette, and John D. Morrissette, Personal Representatives

T.C. Memo. 2021-60

UNITED STATES TAX COURT

ESTATE OF CLARA M. MORRISSETTE,

DECEASED, KENNETH MORRISSETTE, DONALD J.

MORRISSETTE, AND JOHN D. MORRISSETTE, PERSONAL

REPRESENTATIVES, Petitioners v. COMMISSIONER

OF INTERNAL REVENUE, Respondent

Docket No. 4415-14. Filed May 13, 2021.

Kelley C. Miller and Mark W. Wasserman, for petitioners.

Randall L. Eager, Elizabeth C. Mourges, Robert J. Braxton, Rachel L.

Rollins, Timothy B. Heavner, Ashley M. Bender, and Tammie A. Geier, for

respondent.

Served 05/13/21

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[*2] MEMORANDUM FINDINGS OF FACT AND OPINION

GOEKE, Judge: Respondent issued a notice of deficiency determining an

estate tax deficiency of approximately $39.4 million with respect to the Estate of

Clara M. Morrissette (estate) in which he increased the fair market values of the

decedent’s contract rights in six split-dollar life insurance arrangements from

$7,479,000 to $32,060,070, the cash surrender values of the underlying life

insurance policies, among other adjustments that the parties have settled.

Petitioners now argue that the contract rights had a fair market value of

$10,452,000. Respondent also determined an underpayment penalty of 40% for a

gross valuation misstatement under section 6662(h) or, alternatively, of 20% for a

substantial valuation understatement under section 6662(b)(5) and (g)(1) with

respect to the decedent’s rights in the split-dollar agreements.1

The parties agree that the property includible in the gross estate is the

decedent’s rights to payment under the split-dollar agreements (split-dollar rights).

The issues for our consideration are: (1) whether section 2036 or 2038 applies to

recapture inter vivos transfers made as part of the split-dollar agreements and (2) if

1

Unless otherwise indicated, all statutory references are to the Internal

Revenue Code (Code), 26 U.S.C., in effect for the date of the decedent’s death,

and all Rule references are to the Tax Court Rules of Practice and Procedure.

Dollar amounts are rounded.

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[*3] not, we must determine the fair market values of the split-dollar rights

including whether the special valuation rule of section 2703 applies to require that

the valuation disregard a provision in the split-dollar agreements that restricts the

parties’ right to unilaterally terminate the agreements. We hold that sections 2036

and 2038 do not apply because the transfers that were made as part of the split-

dollar agreements qualify for the bona fide sale exceptions of both sections. We

further hold that the special valuation rules of section 2703(a) would not require

the inclusion of the cash surrender values of the six life insurance policies in the

gross estate on the basis of the terms of the split-dollar agreements and the section

2703(b) exception.

To determine the fair market values of the decedent’s split-dollar rights, we

adopt the discounted cashflow method of valuation including discount rates of

respondent’s expert to the extent stated herein. Finally, we hold that the estate is

liable for a 40% penalty for a gross valuation misstatement.

FINDINGS OF FACT

The decedent, Clara M. Morrissette, lived in Virginia at the time of her

death on September 25, 2009. Personal representatives of the estate, Mrs.

Morrissette’s three sons, Arthur Jr., known as Buddy, Donald (Don), and Kenneth

(Ken), lived in Virginia when the petition was timely filed.

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[*4] Mrs. Morrissette married Arthur E. Morrissette in 1933. In 1943 Mr.

Morrissette bought a used truck for $450 and started a moving company. Today

that moving company, Interstate Group Holdings, Inc. (Interstate), comprises 32

companies operating a moving, relocation, and storage business.2 At the time of

her death, Mrs. Morrissette owned the majority of the shares of Interstate as well

as substantial real estate holdings and a real estate management company through

various trusts.

A. History of the Business

Mr. and Mrs. Morrissette had their sons working at Interstate in their teens

or before, beginning with doing odd jobs. The brothers have worked for the

business most of their lives. Mr. Morrissette was a strict boss even with his sons.

By all accounts he was a boss first and a father second. The brothers often had a

contentious relationship with their father going back to their childhoods.

However, Mr. Morrissette wanted his sons to work in the business, to inherit it,

and to pass it on to their own children one day.

In the late 1980s Mr. Morrissette considered selling the business but

ultimately changed his mind realizing that he did not want to sell the company he

2

In January 2009 Interstate was reorganized as an S corporation holding

company with qualified S subsidiaries. The reorganization is not relevant for

purposes of this case. We refer to the business as Interstate for all years discussed.

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[*5] had founded and to which he had devoted his life. At that time, the brothers

were in their mid-to-late forties and were executives at Interstate. Buddy was

Interstate’s CEO and president and was the driving force behind Interstate’s

expansion beginning in the 1980s and continuing throughout the 1990s and early

2000s.

After learning of their father’s decision Ken and Don told their father that

they wanted to leave the business. Mr. Morrissette offered to buy out their stock

at the price he had negotiated for the sale. Ken and Don believed the buyout

would be amicable. However, for Mr. Morrissette it was not. He viewed Ken and

Don as disloyal. In Ken’s and Don’s opinion, Mr. Morrissette and Buddy unfairly

lowered the stock price for the buyout, cut them off financially in other ways, and

caused them financial hardship by making them repay corporate loans. Mr.

Morrissette engaged an attorney and made Ken and Don sign noncompete

agreements. Eventually, Ken and Don sued their father and won, causing further

animosity. Even before the buyout, there was discord between Mr. Morrissette

and his sons and among the brothers.

After years of tension over the buyout, in 1995 Mrs. Morrissette persuaded

her husband to forgive Ken and Don and invite them back into the business. Mr.

Morrissette reinstated them into executive positions, paid them the same salary as

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[*6] Buddy, and gave them nonvoting Interstate stock but not voting stock. Only

Mr. and Mrs. Morrissette and Buddy held voting stock. Buddy felt cheated by his

father’s decision to accept his brothers back into the business. He resented his

brothers and felt that he did not receive any recognition for his loyalty.

Disagreements among the three brothers were pervasive and caused difficulties for

Interstate’s staff.

Together Mr. and Mrs. Morrissette implemented an estate plan for

Interstate’s ownership which Mrs. Morrissette later revised in 1996 after her

husband’s death (1996 plan), described below. They were adamant that Interstate

remain in the family, and they wanted to exclude anyone who was not their own

blood, including spouses, stepchildren, and adopted children, from inheriting

stock. They had consistently expressed their wish that their sons and

grandchildren retain ownership of Interstate. In fact, Mrs. Morrissette wanted

Interstate to remain a family business for future generations. The brothers shared

the same wish, that their children would inherit the company, and wanted to

encourage them to work at Interstate. Buddy’s sons, Bud and J.D., shared this

hope for their children one day. However, some brothers and grandchildren had

adopted children or stepchildren, and they wanted to be able to leave their stock to

them. The brothers also wanted to establish marital trusts with the stock.

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[*7] B. 1996 Succession Plan

In August 1994 Mrs. Morrissette settled a revocable trust, the Clara M.

Morrissette Trust (CMM trust), to hold her Interstate stock. The trust agreement

named Mrs. Morrissette as the initial trustee and the brothers as successor

cotrustees. In April 1995, after welcoming Ken and Don back into Interstate, Mr.

Morrissette settled a revocable trust, Arthur E. Morrissette Trust (AEM trust), to

hold all of his Interstate stock. At that time Mr. and Mrs. Morrissette owned

approximately 82% of Interstate’s voting stock and 73% of its nonvoting stock.3

The trust agreements provided that the stock would be held in trust throughout the

lives of all three sons. The AEM and CMM trusts also held real estate and

marketable securities. Mr. Morrissette died in April 1996, and Mrs. Morrissette

revised the plan.

Upon Mr. Morrissette’s death, the AEM trust distributed its assets to three

trusts for the benefit of Mrs. Morrissette (collectively AEM trusts). Two trusts

held Interstate stock, one for voting stock and the second for nonvoting stock, and

the third trust held real estate and other assets. The AEM and CMM trust

3

All of Mr. and Mrs. Morrissette’s Interstate stock was thereafter held in the

revocable trusts. For convenience, we refer to them individually as owning

Interstate stock. Likewise, for convenience, we refer to the brothers’ ownership

through the subtrusts as stock owned by the brothers.

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[*8] agreements stated Mr. and Mrs. Morrissette’s shared intent that after their

deaths their sons would own equal shares of voting stock and this equality would

continue to the Morrissette grandchildren’s generation. Upon the death of the last

parent to die, the AEM trusts would distribute their assets to a subtrust for each

son (AEM subtrusts), and upon the deaths of the first two sons to die, the sons’

AEM subtrusts would distribute their assets equally to subtrusts for the biological

children (AEM grandchildren subtrusts). Adopted and step children were

excluded in accordance with Mr. and Mrs. Morrissette’s wishes.

After the death of the last brother to die, that brother’s AEM subtrust and

the AEM grandchildren subtrusts would terminate and distribute their assets to the

biological grandchildren per stirpes. Once the AEM subtrusts distributed the stock

to the grandchildren, the grandchildren could sell the stock to anyone, and the

family could lose control of the business. Mr. and Mrs. Morrissette wanted

Interstate to remain a family business for many generations although the 1996 plan

ensured it would remain as such only through their grandchildren’s generation.

When Mr. and Mrs. Morrissette settled their revocable trusts, Buddy was the

only brother who owned Interstate voting stock; he owned 15.5% of the voting

stock. Mr. and Mrs. Morrissette wanted their sons to have equal voting rights after

their deaths. To equalize the voting stock, the 1996 plan provided for unequal

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[*9] distribution of the AEM and CMM trusts’ voting stock among the brothers’

AEM subtrusts. Thus, Buddy would inherit less voting stock than Ken and Don.

After the distribution, each brother would own an equal number of voting shares.

Mr. and Mrs. Morrissette wanted to compensate Buddy for this unequal

treatment by giving him a greater share of Interstate’s nonvoting stock. Thus, the

AEM and CMM trusts would distribute more nonvoting stock to Buddy’s AEM

subtrust than his brothers’ to make up for the unequal distribution of the voting

stock. Each brother’s AEM subtrust would receive the same total shares when

counting both voting and nonvoting stock, but after the distributions Buddy would

own more total stock. The voting and nonvoting stock are identical except for

voting rights.

Under the 1996 plan, Interstate stock and other assets held in the AEM and

CMM trusts would have been includible in Mrs. Morrissette’s gross estate upon

her death. In addition, most Interstate stock would have been includible in the

brothers’ gross estates when they died because the brothers had testamentary

general powers of appointment over the assets in their AEM subtrusts.

The brothers had tense, difficult relationships stemming from Don’s and

Ken’s buyouts, the lawsuit that followed, and the betrayal that Buddy felt when

their father welcomed Don and Ken back into the business. The 1996 plan

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[*10] exacerbated the controversies among the brothers. Buddy was upset after

the stock distribution under the 1996 plan. Even though he would own more total

shares, he felt cheated and felt that he deserved to receive at least the same number

of voting shares as his brothers or possibly more because he was the only son who

had been loyal to the business and the family.

Mr. and Mrs. Morrissette knew that it was not easy for their sons to work

together. However, they wanted Interstate to remain a family business and wanted

their sons to work together, and the brothers knew that this was their parents’

wish. Mr. and Mrs. Morrissette tried to stop the continued animosity among the

brothers by adding a fourth independent trustee as part of the 1996 plan, referred

to as the fourth brother provision. Under the fourth brother provision, whenever

two brothers disagreed with the third over a business matter, the matter was to be

referred to the independent trustee with the understanding that the independent

trustee would side with the brother in the minority unless the majority’s position

was compelling. Accordingly, the brothers would need to make unanimous

decisions on business matters or there would likely be a deadlock that prevented

any matter from going forward. According to the trust documents, the role of the

fourth trustee was to prevent two brothers from acting against the interests of the

third brother in Interstate’s management. However, the fourth brother provision

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[*11] evolved into a veto culture where each brother felt entitled to reject his

brothers’ business proposals.

After her husband’s death Mrs. Morrissette worried that the disagreements

among her sons would lead to another lawsuit. Nevertheless, she insisted that

Interstate remain a family business and the brothers work out their differences.

She never wavered from her desire that her sons inherit Interstate equally and that

each son’s shares pass to his biological children. At that time Buddy was

Interstate’s president and chief executive officer (CEO). Don was the president of

a family real estate management company, AEM, Inc., and managed Interstate’s

trucks and facilities. Ken was Interstate’s chief accounting officer and also

managed its legal matters.

Mrs. Morrissette had good reason to be concerned. By 2000 the brothers’

relationship deteriorated to the point where they could not discuss business

matters in person for longer than a hallway chat. Each brother felt that his

brothers did not respect his area of expertise. The brothers fought over whether

they worked hard enough and accused each other of not stepping up to handle

enough responsibilities. They refused to take direction or suggestions from each

other. Don and Ken’s relationship had grown so strained that they could not speak

to each other about work matters and communicated through memoranda and

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[*12] email even though they had adjacent offices. The brothers wanted Interstate

to be successful and to remain in the family, but they were able to act only on the

most important matters and argued almost daily about how they were doing their

jobs.

Buddy did not want to get involved in the growing animosity between Ken

and Don. But Buddy also caused discord. He made major decisions and changes

to company policy without his brothers’ input. By 2002 Don and Ken as well as

Buddy’s sons, Bud and J.D., wanted Buddy to step down. They felt that Buddy

had become less engaged in Interstate’s business and his decisions were negatively

affecting the work environment and employee morale. Ken and Don thought that

Buddy had caused Interstate to lose drivers and agency relationships. They also

realized that the brothers’ difficult relationship caused problems for the staff.

Apart from the need to resolve conflict in the brothers’ relationships,

Interstate needed a plan to transition management to the next generation. Two of

Buddy’s sons, Bud and J.D., who were in their mid-forties and Interstate

executives, wanted more responsibility and autonomy. They had dedicated their

careers to Interstate, having worked there for over 25 years, beginning as

teenagers, then during college, and later as executives. Buddy, Don, and Ken were

in their mid-to-late sixties and continued to work full time. Bud and J.D. wanted a

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[*13] formal plan and timeframe for the transition of management to them. They

understood that Bud was being groomed to become CEO, and J.D. was in charge

of one of Interstate’s most successful divisions. They had tried to talk about their

concerns with Buddy, but he was dismissive. In 2005, J.D. considered leaving

Interstate and expressed this in a letter to Buddy.

Bud and J.D. did not find it easy to work with their father. They felt that

Buddy was not receptive to their ideas or opinions and they could not disagree

with Buddy at work. They felt that Buddy put business before his family just like

their grandfather. More importantly, Bud and J.D. thought that Interstate lacked

long-term business planning. They were concerned about their futures and were

concerned that the 1996 plan would not ensure a continued viable business, a

stable transition of Interstate’s management to them, or retention of family

ownership of Interstate.

The tension among the brothers created by the 1996 plan was not the only

problem. There was no definite plan on how to pay estate tax after Mrs.

Morrissette’s death, and there was a concern that the estate would need to sell real

estate and Interstate stock. The brothers had a vague plan to pay the estate tax

from Interstate’s profits over a 10-year period after their mother’s death. They

believed that the estate would qualify for a payment deferral under section 6166

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[*14] that they understood would allow payment of estate tax over 10 years upon

the death of a shareholder of a family-owned business. There were two key

problems with this plan. First, the brothers ignored warnings from Interstate’s

accountant that the estate would not qualify for the 10-year deferred payment

because Mrs. Morrissette held substantial passive investments in real estate.

Buddy, in particular, was dismissive of the accountant’s concerns.

Second, Don, Bud, and J.D. were concerned that paying the estate tax with

Interstate’s profits could adversely affect the business. In particular, they were

concerned that such a use of Interstate’s profits would jeopardize its Government

contracts, which accounted for approximately 70% of its business, because

withdrawing the profits could cause Interstate to fail the financial requirements for

the award of Government contracts. They were also concerned that Interstate

would not generate sufficient profits to pay estate tax from its annual profits and

the estate would need to sell Interstate stock or other assets to pay the estate tax.

No one performed an analysis of whether the profits would be sufficient to pay the

estate tax. The accountant advised the brothers that the estate might need to sell

assets to pay estate tax. Most of Mrs. Morrissette’s assets were illiquid including

Interstate stock and real estate. The brothers did not want to sell Interstate stock to

a third party.

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[*15] Bud and J.D. were concerned that the plan to pay estate tax with Interstate’s

profits would jeopardize the company’s future or force a sale to third parties.

They were concerned about what this could mean for their careers. In fact,

Interstate’s net income significantly declined in the years after Mrs. Morrissette’s

death and might not have been sufficient to pay estate tax during the 10 years for

deferred payment that the brothers assumed would be available to the estate.

C. 2006 Estate Planning

In November 2005 Mrs. Morrissette was diagnosed with Alzheimer’s

disease and dementia.4 She had good and bad days, but she was physically strong

and healthy. Don visited her daily. Some days she was talkative, others not.

Before her diagnosis, Don had taken Mrs. Morrissette to inspect the real

properties, and she continued to give her input on the business.

In early spring 2006 Bud met Alan Meltzer, an insurance broker, at a

fundraising dinner for his alma mater. Mr. Meltzer inquired about Interstate’s life

insurance needs and the purchase of life insurance as part of estate planning and

4

The parties dispute when the brothers became successor cotrustees of the

CMM trust but agree that Mrs. Morrissette was incapacitated as of November

2005. Petitioners assert that date. Respondent asks us to disregard the

incapacitation and adhere to a purported stipulation that the brothers “became”

cotrustees in September 2006. Petitioners disagree with this reading of the

stipulation. We do not resolve this dispute because the brothers’ status as

cotrustees is immaterial to our decision.

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[*16] asked to set up a meeting. At that time, Bud did not understand his

grandparents’ trusts or did not know the value of Mrs. Morrissette’s estate. He

indicated to Mr. Meltzer that insurance needs were not within his responsibilities

at Interstate but expressed his concern with estate and succession planning and

agreed to introduce Mr. Meltzer to Buddy.

Approximately two months later, Bud introduced Mr. Meltzer to Buddy and

then at a second meeting to Ken, Don, and J.D. At the second meeting Mr.

Meltzer introduced the five family members to Jim McNair, a tax and estate

planning attorney. Mr. Meltzer and Mr. McNair have worked together on estate

planning strategies since the 1980s. Neither Mr. Meltzer nor Mr. McNair met

Mrs. Morrissette. At the second meeting, the family members discussed

Interstate’s business and Mr. and Mrs. Morrissette’s desire for Interstate to remain

in the family. They disclosed the history of the business including Ken’s and

Don’s buyouts, the subsequent lawsuit, and Buddy’s feeling of unfair treatment

when Ken and Don returned to the business and under the 1996 plan. They also

discussed the transition of Interstate’s management to Bud and J.D. They

explained that they planned to pay the estate tax owed on Mrs. Morrissette’s death

with Interstate’s profits over 10 years under the payment deferral. Ken provided

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[*17] financial statements for the CMM and AEM trusts, Mrs. Morrissette, and

Interstate.

Mr. McNair advised that the estate would not likely qualify for a payment

deferral under the 1996 plan because of Mrs. Morrissette’s real estate holdings and

would likely have to pay the estate tax in full within nine months of her death. He

advised that the AEM and CMM trusts should restructure their real estate holdings

to qualify for the deferral. He presented estate tax saving strategies including the

purchase of life insurance through split-dollar arrangements. However, the

implications of tax strategies were not discussed in detail. He provided marketing

materials prepared by his firm’s marketing department that included information

on split-dollar agreements. The marketing materials included an example of a

grandmother who pays a $10 million life insurance premium as part of a

split-dollar life insurance agreement in exchange for rights determined on the basis

of the policy’s cash value. The marketing materials suggested that the estate could

report the value of the grandmother’s rights under the split-dollar agreement for

estate tax purposes at $565,000 or $1,445,000, a substantial discount from the $10

million premium.

The brothers asked Mr. McNair to prepare a schedule comparing the estate

tax under the 1996 plan and the proposals discussed at the meeting including the

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[*18] restructure of the real estate holdings and the split-dollar agreements. The

next day Buddy emailed the meeting attendees that he was unwilling to discuss

estate planning any further because of past family tensions. However, Buddy’s

brothers and sons wanted to pursue a new estate plan. They recognized the

problems with the 1996 plan, the effect on Interstate if the estate did not qualify

for a payment deferral, and the need to ensure a smooth transition of Interstate’s

management to the next generation.

Both Mr. Meltzer and Mr. McNair replied to Buddy’s email by emphasizing

the potential estate tax saving as an incentive to engage their services. Mr.

Meltzer replied that a new plan would benefit all family members equally and

reduce estate tax by $20 to $30 million. Mr. McNair replied that the estate could

save $21.9 million: $9.4 million with the split-dollar arrangements, $10.9 million

by restructuring real estate holdings, and $1.6 million by reorganizing other

partnership interests. He also advised that the estate could qualify for a payment

deferral on $14.5 million of the estimated estate tax owed with respect to Mrs.

Morrissette’s real estate holdings under his proposals but would need to pay the

remaining $25.3 million in estate tax that he projected as owed within nine months

of Mrs. Morrissette’s death.

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[*19] Over the course of the next week, the brothers decided to proceed with a

new estate plan (2006 plan) that included a buy-sell provision for each brother’s

Interstate stock on his death, the purchase of life insurance on each other’s lives to

finance the buyouts with a portion of the death benefits with the CMM trust

paying the life insurance premiums under split-dollar agreements, and the CMM

trust’s settlement of a dynasty trust for each brother to own the policies. The 2006

plan also restructured the real estate holdings of the CMM and AEM trusts so that

the estate would qualify for a partial payment deferral of estate tax.

The brothers wanted their children to work at Interstate but also recognized

that their children might not want to. They wanted to provide their children with a

means to cash out while avoiding the problems of the past. The buy-sell provision

ensured that the brothers could retain ownership of Interstate during their lifetimes

and provide for a successful transition of Interstate’s management to the

grandchildren who wanted to continue ownership. The 2006 plan also protected

against the need to use Interstate profits or to sell Interstate to third parties to pay

estate tax on Mrs. Morrissette’s death or the brothers’ deaths.

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[*20] 1. Conservatorship

The brothers decided to seek the creation of a temporary limited

conservatorship for Mrs. Morrissette to implement the 2006 plan. They

understood that they had the authority to execute the 2006 plan without obtaining

a court-appointed conservator because they served as cotrustees of the CMM trust

and held a power of attorney for Mrs. Morrissette. However, they sought a

conservatorship because they understood a conservatorship would make it more

difficult for anyone of them to later challenge the 2006 plan. Quite simply, the

brothers did not trust each other.

On August 18, 2006, the county circuit court declared Mrs. Morrissette

permanently incapacitated and appointed a temporary limited conservator. The

petition for the conservator’s appointment stated that the CMM trust sought the

conservatorship to complete actions as part of the 2006 plan and acknowledged

the estate tax saving purpose in accordance with State law requirements for a

conservator’s appointment. A court-appointed guardian ad litem found that Mrs.

Morrissette required 24-hour supportive care and appeared incapable of making

decisions regarding complicated issues or managing her financial affairs. He

described Mrs. Morrissette as unresponsive and confused at times and indicated

that she did not appear to understand all of the rights he read to her. Mrs.

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[*21] Morrissette expressed no objection to the appointment of a conservator and

indicated that she did not want to attend the conservatorship court proceeding.

Ken asked a longtime Interstate employee who assisted the Morrissette

family with both personal and business matters to serve as the conservator. The

employee also had a close relationship with Mrs. Morrissette and knew that she

wanted her sons to inherit Interstate equally and wanted her grandchildren to

inherit Interstate one day. The conservator thought that the actions she took as the

conservator were in Mrs. Morrissette’s best interests and in accordance with her

wishes. However, no one explained the split-dollar agreements to the conservator.

We refer to the CMM trust and Mrs. Morrissette interchangeably herein, as

the parties agree that the trust was revocable and the assets in the trust were

includible in Mrs. Morrissette’s gross estate. At all relevant times, the brothers

were cotrustees of the CMM trust. They had been directing Mrs. Morrissette’s

financial affairs before the decision to execute the 2006 plan and the appointment

of the conservator.

2. Dynasty Trusts

On September 15, 2006, the CMM trust established a perpetual dynasty

trust for the benefit of each son (dynasty trust) with an initial contribution of

$10,000. Each son was cotrustee of his respective dynasty trust along with

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[*22] Interstate’s chief financial officer, whose only function was to sign

documents and who was not asked to exercise any independent judgment as

cotrustee. The trust agreements authorized the dynasty trusts to purchase life

insurance on the lives of the brothers, required that the dynasty trusts be the

owners of the policies, and provided a sharing arrangement that required the

dynasty trusts to distribute one-third of the death benefits, less the amount paid for

the deceased brother’s stock under the buy-sell provision, to the other two dynasty

trusts. The agreements stated Mrs. Morrissette’s intent to contribute sufficient

amounts to the dynasty trusts to pay the policy premiums and also authorized the

dynasty trusts to enter into split-dollar or premium sharing agreements with any

appropriate person.

3. Amendments to the CMM Trust Agreement

On September 19, 2006, the CMM trust agreement was amended to

authorize the trustees to engage in transactions related to the implementation of

the 2006 plan including paying premiums on the life insurance policies acquired to

fund the buy-sell provision, making loans, entering into the split-dollar

agreements, or making other arrangements to assist Interstate’s shareholders with

funding their obligations under Interstate’s business succession plan. The CMM

trust agreement was also amended to allow the trustees, in their sole and absolute

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[*23] discretion, to distribute the CMM trust’s split-dollar rights upon Mrs.

Morrissette’s death to each dynasty trust that was the counterparty to the

agreements equal to one-third of Mrs. Morrissette’s unused generation-skipping

transfer tax exemption and to transfer the remainder of the split-dollar rights to

such dynasty trust, the son, or his children.

4. Shareholders Agreement

On September 21, 2006, the AEM trusts and subtrusts, the CMM trust, the

brothers, and the dynasty trusts executed a shareholders agreement that imposed

restrictions on the transfer of Interstate stock and established a buy-sell provision

upon the death of a brother. Under the buy-sell provision, upon a brother’s death,

the surviving brothers were obligated to use their best efforts to negotiate for the

purchase of the deceased brother’s stock. There was no obligation for the

shareholders to purchase a deceased brother’s stock if acceptable terms could not

be reached. The shareholders agreement also required shareholders to provide a

right of first offer for their shares. As part of the shareholders agreement, each

brother consented to the purchase of a life insurance policy on his own life by his

brothers’ dynasty trusts.

The shareholders agreement imposed a number of restrictions on each

shareholder’s actions unless the other shareholders consented. These restrictions

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[*24] were intended to minimize further disputes among the brothers. Many of

these restrictions were unrelated to Interstate’s ownership, including restrictions

on encumbering the shareholder’s own property, guaranteeing or indemnifying

debt, beginning legal proceedings, and amending a shareholder’s constitutional

documents.

The brothers hoped that the shareholders agreement would reduce the

likelihood of further disputes over Interstate’s management, prevent the sale of

Interstate stock to third parties, and ensure that the brothers or their children would

continue to own Interstate. They believed that the agreement furthered their

parents’ intent for Interstate to remain a viable family-owned business. They

realized that the plan was inconsistent with Mr. and Mrs. Morrissette’s wishes that

their grandchildren would inherit Interstate one day, but the brothers’ greater fear

was the family’s losing control of the business. The brothers tried to balance their

parents’ wishes against concern that the payment of estate tax would jeopardize

Interstate’s future or would force the brothers or the next generation to sell off a

portion of Interstate.

The brothers made other changes as part of the 2006 plan and afterwards

that were contrary to their parents’ wishes including allowing spouses and adopted

children to inherit Interstate stock. The brothers wanted to protect their own

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[*25] families’ financial security after their deaths. They believed that the 2006

plan provided a way for Interstate to stay in the family for generations.

Mr. Meltzer and Mr. McNair did not introduce the idea of a buy-sell

provision to the brothers. Ken had been urging his brothers to implement one

beginning in 2002 because he was concerned that there would not be sufficient

liquidity within the company to pay his mother’s, his own, or his brothers’ estate

tax. He believed that a buy-sell provision would ensure that Interstate would

remain in the family or at least allow for continued ownership by those who

wanted to work at Interstate.

The 2006 plan provided Bud and J.D. with the assurances they wanted for

their futures at Interstate. Ken, Don, Bud, and J.D. believed that Bud’s meeting

Mr. Meltzer was a catalyst to start a discussion about Interstate’s future that they

had avoided for years despite the fact that they knew that they needed to revise the

1996 plan. The family members also hoped that the 2006 plan would encourage

other family members to enter the business.

5. Life Insurance Policies

On October 4, 2006, each brother’s dynasty trust purchased two flexible-

premium, adjustable life insurance policies, a type of universal life insurance, one

on the life of each of his two brothers, e.g., Buddy’s trust purchased policies on

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[*26] Don’s life and Ken’s life. For policies insuring Don’s life, the dynasty trusts

purchased policies from American General Life Insurance Co. (American

General), and for Buddy’s and Ken’s lives, from Massachusetts Mutual Life

Insurance Co. (MassMutual). The policies had initial death benefits of $1 million

with total premiums of $10,000 for the MassMutual policies and $30,000 for the

American General policies. On October 3, 2006, the CMM trust issued six checks

to pay these premiums in full.

Each policy included a rider for additional death benefits of $8.73 million.

Upon exercise of the riders, the total death benefits from each policy would be

$9.73 million. Exercise of the rider would require additional premiums of

approximately $5 million per policy, for total premiums of approximately $30

million and total death benefits of $58.2 million for the six policies. The dynasty

trusts exercised the riders, but the record is unclear as to when they did so.

Flexible-premium, adjustable life insurance policies are typically more

expensive than other types of life insurance. Mr. Meltzer described the policies to

the brothers as a combination of whole and term insurance but stated that most

was term insurance, which they purchased to lower Mr. Meltzer’s commission.

Under the terms of the policies, after the initial premium had been paid, there was

no requirement that any specific amount be paid on any specific date. Subject to

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[*27] certain limits stated in each policy, any additional amount could be paid on

any date during the insured’s lifetime. The premium payments were credited to

the policy’s cash value, i.e., the increase in the policy’s cash value. As a result of

the flexible-payment feature, the policyholders could increase or decrease the

amounts of the policies’ cash values.

Under the terms of the policies, the insurance companies charged a monthly

administrative fee (monthly fee) that was deducted from the paid premiums, and

the portion of the paid premiums not so used increased the policy’s cash value.

The cash values of the MassMutual and American General policies earned interest

at rates determined by the insurance companies with a minimum annual interest

rate of 3%. Under the terms of each policy, the policy’s cash value less a fee

charged by the insurance company for the surrender of the policy was the policy’s

cash surrender value.

The monthly fee included administrative expenses, mortality charges, and

other associated expenses. Mortality charges are the cost of insuring the life of the

insured and depend on the policy’s cash value and the amount of the death benefit.

In general, for two policies with the same cash value, a policy with a higher death

benefit would have a higher monthly fee and thus a lower return measured by the

annual appreciation in the cash value, i.e., inside buildup; conversely, a policy

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[*28] with a lower death benefit would have a lower monthly fee and a higher rate

of inside buildup. If the policy’s cash value cannot cover the monthly fee, the

policy may terminate after two months but may be reinstated by the policyholder.

The monthly fee is different from the cost of current life insurance

protection (cost of current protection), a concept used for purposes of the

economic benefit regime under section 1.61-22, Income Tax Regs. (split-dollar

regulations). The cost of current protection is used to determine the amount of the

deemed annual gift. It is determined by rules set forth in the split-dollar

regulations and is not based on the insurance company’s monthly fee with respect

to the policy at issue. See id. para. (d)(3) (calculating the cost of current

protection by multiplying the life insurance premium factor published by the

Internal Revenue Service (IRS) by the excess of the death benefit over the

payment owed to the donor). On the basis of the MassMutual and American

General policy documents, the cash surrender value may include amounts that

were previously treated as deemed gifts under the economic benefit regime.

The dynasty trusts purchased policies with relatively high cash surrender

values and low-to-modest death benefits. Ken, who made most decisions about

which policies to purchase, wanted to purchase policies with high initial cash

surrender values to ensure the CMM trust would receive adequate returns on the

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[*29] premiums it paid from the outset. He also wanted sufficient death benefits

to purchase the brothers’ stock. He believed that $10 million in death benefits per

policy would be sufficient to achieve both purposes. He estimated that the AEM

and CMM trusts owned stock worth approximately $26.3 million at that time,

which would likely increase to approximately $30 million during the brothers’

lifetimes.

Finally, Ken considered the amount of liquid assets available to the CMM

trust to pay the premiums. The CMM trust had access to approximately $26

million in liquid assets, earning an average rate of return of 2.95%, that could be

used to pay the premiums. The brothers chose policies that earned interest at a

minimum interest rate higher than 2.95%. The brothers also understood that the

policies provided an advantage over the trust’s existing investments because the

death benefits would be tax exempt to the CMM trust. Mr. Meltzer believed that

the policies were conservative. He earned $1 million in commission on the

policies.

To fund the premiums, the AEM trusts distributed $8 million to the CMM

trust and the CMM trust liquidated $18.25 million from an investment account.

On November 2, 2006, the CMM trust took an advance distribution from Interstate

of $4 million which Interstate accounted for as a loan from a subsidiary, Interstate

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[*30] Van Lines (Van Lines loan). The CMM trust executed a promissory note

and provided collateral for a three-year term loan with interest of 4.89% payable

annually and principal due at maturity.

Ken wanted to prepay the premiums to ensure the policies would remain in

effect. He worried that otherwise his brothers would refuse to pay the premiums

as leverage in a business negotiation and jeopardize the 2006 plan. When the

split-dollar agreements were executed, the brothers’ life expectancies ranged from

14.6 to 18.6 years. The dynasty trusts were the named owners of the policies, and

the policies were the dynasty trusts’ only assets. In 2009 the insurance policies

earned annual interest between 4.75% and 5.4%.

6. Split-Dollar Agreements

On October 31, 2006, the CMM trust entered into two split-dollar

agreements with each dynasty trust under which it agreed to contribute to the

dynasty trust an amount necessary to pay the premiums associated with the riders

on the two life insurance policies held by the dynasty trust. On that date, the

CMM trust also paid in full the premiums owed for the riders. The premiums were

$4.97 million for each American General policy and $4.99 million for each

MassMutual policy. The amounts of prepaid premiums complied with the Code

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[*31] and did not cause the policies to exceed the limits established by the Code

for the amount of an investment in a life insurance policy. See sec. 7702A(b).

Recitals to the split-dollar agreements stated that their purpose was to

provide funds to purchase a deceased brother’s Interstate stock pursuant to the

buy-sell provision. Under the split-dollar agreements, in return for contributing

the premiums, the CMM trust was entitled to receive the greater of the amount of

premiums it paid or the cash surrender value of the life insurance policy upon the

insured’s death or the termination of a split-dollar agreement, i.e., the payout

event. We refer to the CMM trust’s rights to such payment as the split-dollar

rights and the date that the split-dollar agreements were executed as the transfer

date. Upon an insured’s death, the dynasty trust owning the policy would receive

the death benefit less the amount owed to the CMM trust under the split-dollar

agreement (net death benefit). Upon a termination of the split-dollar agreements,

the dynasty trust would receive nothing.

The two primary differences between the payout events were the amounts

that the dynasty trusts would receive and the method of the payment to the CMM

trust. On the insured’s death, the CMM trust had the right to receive its portion of

the death benefits directly from the insurer. The split-dollar agreements provided:

“The balance of the death benefit * * * , if any, shall be paid directly to the

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[*32] [dynasty] Trust. No amount shall be paid from the death benefit * * * to the

[dynasty] Trust until the full amount due to the [CMM trust] * * * has been paid.

The parties hereto agree that the beneficiary designations of the Policy shall

conform to the provisions hereof.” The split-dollar agreements were provided to

the insurance companies, but designation forms were not completed.

Upon a termination of the split-dollar agreements, the CMM trust did not

have a right to direct payment from the insurance company. Rather, the CMM

trust would receive payment from the dynasty trust. Only the dynasty trust had the

right to cancel the policies and receive the cash surrender value. If a dynasty trust

canceled a policy, the insurance company would pay the cash surrender value to

the dynasty trust.

The split-dollar agreements imposed restrictions on the dynasty trusts’

payment obligations to the CMM trust. Their payment obligations were limited to

the policies’ cash surrender values. Each split-dollar agreement provided that the

dynasty trust was the sole and absolute owner of the policy and caused exercise

ownership rights under the policy except to the extent limited by the split-dollar

agreement. According to the split-dollar agreements, the agreements did not

confer any rights of ownership in the policies on the CMM trust. Rather, the

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[*33] CMM trust’s sole right under each split-dollar agreement was the right to

repayment as defined by the split-dollar agreements.

The split-dollar agreements provided that repayment to the CMM trust was

to be made “solely” from the cash surrender values or the policy’s death benefit

depending on the payout event. However, a termination of the split-dollar

agreements would not force cancellation of the underlying policies. The split-

dollar agreements did not contain any option, agreement, or other right that

granted a right to acquire or use the CMM trust’s split-dollar rights to another

person or any restriction on the CMM trust’s right to sell or use the split-dollar

rights.

The dynasty trusts collaterally assigned the policies to the CMM trust. The

collateral assignments were filed with the insurance companies. The assignments

did not confer on the CMM trust the right to borrow against the policies or cancel

them, or any other ownership rights in the policies.

a. Mutual Termination Right

The parties to the split-dollar agreements could terminate them by mutual

assent (mutual termination right or mutual termination restriction). The

split-dollar agreements did not provide that their termination would force

cancellation of the policies. The split-dollar agreements expressly prohibited the

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[*34] CMM trust from canceling or surrendering the policies. The agreements

stated: “In no event shall the Donor [the CMM trust] have any right to cancel or

surrender the Policy”. Rather, the terms of the split-dollar agreements conferred

on the dynasty trusts the sole right to cancel the policies and provided that the

dynasty trusts could do so without the consent of the CMM trust or the insured.

The split-dollar agreements provided that if the dynasty trusts were to cancel the

policy, the split-dollar agreement would terminate. Thus, the dynasty trusts could

force termination of the split-dollar agreements without the consent of the CMM

trust by canceling the policies subject to their contractual obligations under the

split-dollar agreements.

The split-dollar agreements also provided for termination on the bankruptcy,

receivership, or dissolution of either party. They prohibited the CMM trust from

“tak[ing] any other action which would impair or defeat the rights of the [dynasty]

Trust in and to the Policy.” There were no similar restrictions on the dynasty

trust’s rights in the policies.

Mr. McNair reviewed all legal documents that his law firm prepared for the

family with respect to the 2006 plan but did not provide an opinion letter on the

tax implications of the split-dollar agreements.

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[*35] b. Gift Tax Reporting of Split-Dollar Agreements

Mrs. Morrissette reported the payment of the premiums as gifts to her sons

for gift tax purposes to the extent required by the economic benefit regime of

section 1.61-22, Income Tax Regs., which treats the premiums as annual gifts

equal to the annual cost of current protection. From 2006 to 2008 the total cost of

current protection, i.e., the economic benefit, was $1,443,526. During those years,

the brothers had the dynasty trusts pay premiums to reduce the amount of the

taxable gifts from Mrs. Morrissette. The dynasty trusts paid premiums of

$806,869. The source of these funds is not clear from the record. For 2006 to

2008 Mrs. Morrissette reported the difference between the costs of current

protection and the dynasty trusts’ payments, $636,657, as gifts.

The record does not indicate the portion of the cash surrender values

attributable to the reported gifts. The dynasty trust’s premium payments increased

the policies’ cash surrender values, but the amounts of the increases are not clear

from the record. The split-dollar agreements did not obligate the dynasty trusts to

pay any premiums and were silent as to how any such payments would affect the

split-dollar rights or the dynasty trusts’ rights to the corresponding increases in the

cash surrender values.

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[*36] Respondent challenged the gift tax treatment of the split-dollar agreements,

arguing that they did not qualify for the economic benefit regime and Mrs.

Morrissette made gifts of $29.9 million in 2006 when the CMM trust paid the

premiums. In Estate of Morrissette v. Commissioner, 146 T.C. 171 (2016), we

held that the split-dollar agreements complied with the economic benefit regime

and Mrs. Morrissette did not make taxable gifts of the premiums in 2006 and made

annual gifts only of the cost of current protection for gift tax purposes. We further

held that although the dynasty trusts were the named owners of the policies in the

policy documents, the CMM trust was the deemed owner for gift tax purposes

under the economic benefit regime. We held that the dynasty trusts did not have

current access to the cash surrender values for any years before Mrs. Morrissette’s

death, defined as a current or future right to the cash surrender values. Id. at 182,

186.

7. Restructuring of Real Estate Holdings

As part of the 2006 plan, the CMM trust restructured its real estate holdings

and began to use AEM, Inc., to manage the properties so that the estate could

qualify for the section 6616 payment deferral for a portion of the estate tax. The

CMM trust contributed each property to a newly formed limited liability company

(LLC) that was owned by the CMM trust and the brothers. The operating

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[*37] agreement for each LLC required majority approval of the brothers, as the

LLC’s managing members, for operating decisions such as repairs and

maintenance and unanimous approval for major decisions such as a sale of the

property or financing matters. If the brothers could not agree on a major decision,

any brother could declare the decision a deadlock. Three deadlocks would trigger

a buy-sell provision for the sale of member interests to the other members.

Without the restructuring, the brothers would have inherited the real estate as

tenants-in-common. The brothers believed that the restructuring provided a more

workable management structure for the real estate as well as limited liability

protection and better access to financing.

D. Later Developments

The brothers’ relationships did not improve after the 2006 plan was

established. Nor did the work environment at Interstate. Shortly thereafter, Buddy

was diagnosed with brain cancer which took his life in 2016. By 2008 he stopped

working full time and went into the office no more than half time. By 2009 he

stopped going every day and stayed only one to three hours when he did. He

continued to insist on a buyout of his Interstate stock because of his brothers’

previous buyouts. In January 2009 Ken and Don finally agreed to a partial

buyback of Buddy’s nonvoting shares. For years Ken and Don had resisted a

-38-

[*38] buyout because they worried that Interstate could not afford to buy Buddy’s

stock and a buyout could adversely affect their own inheritance and set a

precedent for Interstate’s stock value for estate tax purposes. In April 2009 Ken

was also diagnosed with cancer. Ken’s doctor advised him that his cancer was

terminal. Ken outlived the life expectancy that his doctor had predicted.

In late 2008 AIG declared bankruptcy, causing the brothers to become

concerned with the financial stability of the two American General policies. They

were also concerned with the MassMutual policies. At some point, apparently

after Mrs. Morrissette’s death, the brothers decided to cancel the American

General policies and replace them with policies from another insurer (replacement

policies).

1. Mrs. Morrissette’s Death

Mrs. Morrissette died on September 25, 2009. At that time, the AEM trusts

and the CMM trust owned 82% of Interstate’s voting stock and 90% of its

nonvoting stock. The trusts distributed the voting and nonvoting stock to the

brothers’ AEM subtrusts. Afterward, each brother together with his children

owned, directly or indirectly, an equal number of voting shares, 6.483 in

accordance with the 1996 plan. Buddy’s children, Bud and J.D., each owned .25

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[*39] of a voting share that Buddy had given them as a gift. They were the only

grandchildren who owned voting stock.

On October 30, 2009, the CMM trust transferred the split-dollar agreements

to the dynasty trust that owned the respective life insurance policies by gift equal

to Mrs. Morrissette’s remaining generation-skipping transfer tax exemption and

the remainder by sale in accordance with the 2006 amendment to the CMM trust.

The dynasty trusts executed promissory notes for the sale portions payable to the

CMM trust totaling $4.65 million and to Van Lines totaling approximately

$300,000. The brothers sought to have the total amount of the promissory notes

correspond to the estate’s claimed value of the split-dollar rights. The transfers

terminated the split-dollar agreements as the dynasty trusts were on both sides of

the agreements after the transfers. The transfers also precluded any future gift tax

from the cost of current protection from the CMM trust’s payment of the

premiums under the economic benefit regime. However, the transfers did not

result in cancellation of the underlying life insurance policies.

In July 2010 Don inquired about canceling the replacement policies. His

reason for doing so is unclear. Cancellation would have negatively affected Mr.

Meltzer’s future commission rates. The replacement policies were not valued as

part of the gross estate. Mr. McNair advised that the IRS had three years to audit

-40-

[*40] the estate tax return and insisted that the policies remain in effect until the

IRS audit was settled. He wrote that the IRS was “going to have issues with the

amount of discounts we are claiming” for the split-dollar rights. At that time the

estate had not yet filed the estate tax return but did so six months later.

2. Additional Amendments to Shareholders Agreement

The shareholders agreement was amended twice after Mrs. Morrissette’s

death, first to allow distribution of Interstate stock to marital trusts and lifetime

transfers to certain family members, and then, after Buddy’s death, to include a

mandatory buy-sell provision of each brother’s nonvoting stock upon the death of

the last to die of Don and Ken, an optional buy-sell provision for Ken or Don to

sell his stock during his lifetime with a right of first offer to Interstate. Although

the amendments went against Mr. and Mrs. Morrissette’s wishes, the brothers

believed that they would better ensure that Interstate remained family owned and

avoid problems similar to those that had previously occurred.

3. Buddy’s Death

Buddy died in 2016. His AEM subtrust distributed its Interstate voting

stock to the three AEM grandchildren subtrusts established for the benefit of his

three children. His nonvoting stock passed to a marital trust. Buddy’s children

wanted to keep the Interstate stock. Bud and J.D. continued to work at Interstate.

-41-

[*41] Accordingly, Ken’s and Don’s dynasty trusts did not use the death benefits

to purchase Interstate’s stock. Ken’s and Don’s dynasty trusts received

approximately $19.5 million in death benefits from the two policies insuring

Buddy’s life, earning a tax-free return of 6.5%. Ken’s and Don’s dynasty trusts

paid over a portion to Buddy’s dynasty trust in accordance with the sharing

agreement. Each dynasty trust received $6.5 million.

Ken, Don, and Buddy’s children and widow continue to own 100% of

Interstate, and Mr. and Mrs. Morrissette’s grandchildren run the business. At the

time of trial, Bud was the CEO and J.D. was the president of Van Lines. Ken’s

son had joined Interstate as corporate counsel.

E. Estate Tax Return

The estate filed Form 706, United States Estate (and Generation-Skipping

Transfer) Tax Return, on December 10, 2010. The estate included all assets held

in the CMM trust in the gross estate and reported a fair market value of

$7,479,000 for the CMM trust’s split-dollar rights as of October 30, 2009, the date

on which that the CMM trust transferred the split-dollar agreements to the dynasty

trusts and therefore the applicable date for valuing Mrs. Morrissette’s split-dollar

-42-

[*42] rights (valuation date).5 See sec. 2032(a) (allowing for election of an

alternate valuation date on the date of a distribution or sale that occurs within six

months of the decedent’s death). Craig Stephanson, one of the appraisers that Mr.

McNair recommended, prepared the appraisal attached to the return which is

discussed below. Ken read the appraisal before the estate tax return was filed.

Petitioners concede that Mr. Stephanson incorrectly deducted gift tax of

$2.97 million in his computation of the fair market value on the assumption that

gift tax would transfer with the split-dollar agreements. On the basis of this

concession, petitioners assert that Mr. Stephanson’s analysis results in a fair

5

The estate claimed fair market values of the split-dollar rights and the

policies had cash surrender values on the valuation date as follows:

Policy owner Insured Reported Cash surrender value

Buddy’s trust Don $1,245,000 $5,372,912

Ken 1,198,000 5,236,488

Don’s trust Buddy 1,323,000 5,567,674

Ken 1,198,000 5,405,130

Ken’s trust Don 1,192,000 5,405,130

Buddy 1,323,000 5,567,674

Total 7,479,000 32,555,008

-43-

[*43] market value of $10,449,000. The estate reported the $4 million Van Lines

loan plus unpaid interest that accrued during 2009 of $176,308 as a liability.

F. Penalty Determination

Revenue Agent John Stewart was assigned to the examination of the estate

tax return and prepared the revenue agent’s report (RAR). On October 22, 2013,

he prepared a penalty approval form and marked boxes on the form for “no” for

penalties under section 6662(b) and (h). No penalty was marked “yes” to assert a

penalty. He wrote that the “values were based upon arm’s-length appraisals by

qualified appraisers and this reliance constitutes reasonable cause for not applying

the penalties. The proposed value * * * is based upon a different interpretation of

the law. There is no evidence of preparer negligence or wilful [sic]

understatement.” The form contains an electronic signature of RA Stewart’s

immediate supervisor, Miliene McCutcheon, dated October 22, 2013. However,

Ms. McCutcheon was not the IRS employee who placed her electronic signature

on the form. Ms. McCutcheon did not give her approval for the nonassertion of

penalties as set forth on the form.

Also on that date, RA Stewart and Ms. McCutcheon discussed the proposed

adjustments to the gross estate and the section 6662 penalties including whether

penalties should be asserted for the undervaluation of the split-dollar rights. Ms.

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[*44] McCutcheon expressed her view that the section 6662(b) and (h) valuation

penalties apply. She instructed RA Stewart to prepare a revised civil penalty

approval form for her signature. A revised form is not in the record.

On October 23, 2013, RA Stewart sent an email to Ms. McCutcheon that

discussed the penalties. He wrote: “I should have asked you before preparing this

Penalty form. Do you think we should apply the section 6662(h) gross

undervaluation to the split-dollar receivables?” Ms. McCutcheon answered “yes”

and responded that the 40% penalty should be applied “based on the extent that a

portion of the underpayment * * * is attributable to one or more gross valuation

misstatements * * * * by substituting 40 percent for 20 percent.”

In the email, RA Stewart also reiterated his “opinion” that the case involves

a “very legal issue” that is “debatable” and the estate followed the advice of an

attorney. Ms. McCutcheon responded the issue “may be debated” but not with the

short time remaining in the period of limitations. On November 6, 2013, RA

Stewart provided a copy of the RAR to the estate formally communicating the

initial penalty determination.

G. Expert Testimony

In addition to Mr. Stephanson’s valuation, petitioners presented the expert

testimony of Shishir Khetan who determined a fair market value for the

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[*45] split-dollar rights of $7,808,314. Respondent presented the expert testimony

of Francis Burns. Mr. Burns opined that in the absence of the mutual termination

restriction the split-dollar rights would have a fair market value equal to the

policies’ cash surrender values. In the alternative, he opined that with the mutual

termination restriction the split-dollar rights had a fair market value of

$17,501,391 assuming that the split-dollar agreements remained in effect until the

brothers’ deaths or $27,857,709 assuming they were terminated on December 31,

2013, three years after the estate tax return was filed (termination assumption).

1. Discounted Cashflow Method

All three experts used the discounted cashflow method of valuation. For

each policy, they calculated an expected value of the policy for each year of the

insured’s life expectancy, i.e., the anticipated holding period, by determining the

policy’s expected cash surrender value for each year multiplied by the probability

of the insured’s death that year (probability-adjusted expected value). They

discounted the probability-adjusted expected value to a present value and then

totaled the annual amounts to determine the fair market value of the split-dollar

rights.

The experts determined slightly different amounts for the annual expected

cash surrender values and also used different probabilities of mortality as

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[*46] explained further below. However, the primary difference between the

valuations is the discount rates that the experts used to compute the present values

of the probability-adjusted expected values.

a. Cash Surrender Values

Mr. Burns and Mr. Stephanson determined the expected cash surrender

values on the basis of the anticipated appreciation rates in the policies’ cash values

according to MassMutual’s and American General’s estimates and set forth in

each insurance company’s policy illustrations (policy illustration yield). The

policy illustrations were issued in September and December 2009. In their policy

illustrations, the insurance companies estimate that the yields on the policies are

based on how the insurance companies’ investment portfolios are performing. Mr.

Burns and Mr. Stephanson used policy illustration yields of 5.5% and 4.5% for the

American General and MassMutual policies, respectively. For American General,

Dr. Khetan used a policy illustration issued in April 2010 with a yield of 4.5%.

This lower yield decreased his expected cash surrender values and opined fair

market values.

In addition to policy illustration yields, Dr. Khetan considered the 3%

minimum interest rate in his computation of the expected cash surrender values,

giving each rate equal weight for a blended yield. The blended yield resulted in

-47-

[*47] lower expected cash surrender values than those determined by Mr. Burns

and Mr. Stephanson. Use of the blended yield decreased Dr. Khetan’s opined fair

market values for the split-dollar rights more than if he had used only the policy

illustration yields. Dr. Khetan opined that the blended yield better estimates

expected cash surrender values because of economic uncertainties, historically low

interest rates on the valuation date, and the downward trend in the policy

illustration yields after the policies were purchased. He opined that an investor

would consider both policy illustration yields and the minimum interest rate when

making investment decisions.

b. Mortality Probability

Mr. Stephanson and Dr. Khetan used mortality probabilities published by

the IRS, Life Table 90CM (IRS mortality table), that rely on mortality statistics of

the general population. Mr. Burns’ use of mortality probabilities that factor in

lifestyle considerations resulted in lower probabilities of mortality in the earlier

years of the policies than those in the IRS mortality table. Respondent concedes

that use of the IRS mortality table was reasonable.

c. Discount Rate

The experts characterize the discount rate as the rate of return required to

induce an investor to enter into the split-dollar agreements on the basis of risk

-48-

[*48] involved and the expected income stream from the agreements. They agree

that the returns on the insurance companies’ investment portfolios reflect their

ability to pay out on the policies. They also agree that the risk of outright default

by the insurance companies on the policy obligations is low. Both insurance

companies had strong credit ratings, and the life insurance industry is heavily

regulated with strict capital reserve requirements, which lowers the risk.

The experts also agree that the discount rate should be based on the yields

on alternative investments with risks comparable to the split-dollar agreements.

However, the experts identify different investments as suitable alternatives. As a

result, the discount rates they applied vary considerably. Finally, they agree that

the fair market value of the split-dollar rights should be discounted to account for

a lack of marketability of the split-dollar agreements.

2. Respondent’s Valuation

To determine the discount rate, Mr. Burns determined a range for a base

discount rate (base range) (6.8% to 10.9% for American General and 5.7% to 7.1%

for MassMutual), used the midpoint of the range to set a base discount rate (8.85%

and 6.4% for American General and MassMutual, respectively), and then added a

.5 premium for a lack of marketability (liquidity premium) to the base rates for

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[*49] both companies. Using this approach, he determined a discount rate of

9.35% for the American General policies and 6.9% for the MassMutual policies.

To establish the base ranges, Mr. Burns considered the insurance

companies’ policy illustration yields, the yields on their investment portfolios

from 1999 to 2008 (historic investment yields), yields on their unsecured debt

(company-specific debt), and yields on corporate debt in the life insurance

industry (industry debt). Mr. Burns testified that these yields reflect the extremely

low default risk on the policies.

Historic yields reflect the rates of the annual increase in the policy’s cash

value. Yields decreased from the transfer date to the valuation date, which Mr.

Burns explained reflects the intervening recession. He testified that the historic

investment yields were in line with the conservative nature of the insurers’

investment portfolios. Over 50% of their investment portfolios consisted of

publicly traded and privately placed investment-grade corporate bonds, asset-

backed and mortgage-backed securities, and U.S. Treasury securities.

Mr. Burns used the historic yields to calculate an investment yield (Burns

investment yields or Burns yield) on the basis of the differences between the

historic yields and yields on the 10-year and 20-year U.S. Treasury bonds during

the same 10-year period. For each year, he determined the annual spreads between

-50-

[*50] each insurance company’s historic yield and the yields on 10-year and

20-year U.S. Treasury bonds (yield spreads) and then determined interquartile

average yield spreads. For American General, he determined average yield

spreads during the 10-year period of 3.03% and 2.57% for 10-year and 20-year

U.S. Treasury bonds, respectively, and for MassMutual, 2.09% and 1.55%,

respectively. He added these average yield spreads to the spot yields on 10-year

and 20-year U.S. Treasury bonds on the valuation date, 3.41% and 4.19%,

respectively, to determine investment yields of 6.44% to 6.76% for American

General and 5.5% to 5.74% for MassMutual.

For MassMutual’s company-specific debt, Mr. Burns considered yields-to-

maturity (YTM) on its surplus notes and for American General’s, corporate bonds

issued by its parent company, AIG. The debt had remaining terms of 7 to 26.5

years and 14 to 29.6 years for MassMutual and American General, respectively.

Surplus notes are equitylike investments that are subordinate to present and future

policyholder claims, making them similar to long-term, unsecured debt according

to Mr. Burns.

For industry debt, Mr. Burns considered yields for 10-year and 30-year

industry bonds from market data compiled by Bloomberg (industry Bloomberg).

He testified that yields increase as the credit quality of the bonds decreases,

-51-

[*51] reflecting the additional compensation demanded by investors for accepting

the greater risk of the lower-rated bonds. Because of the constraints of the market

data, he considered industry debt that was somewhat riskier than the company-

specific debt. For Mass Mutual debt, he considered industry debt with credit

ratings of A, which would be riskier than MassMutual’s AA+ rated debt. For

American General, he considered industry debt with ratings of A and BBB. AIG’s

debt had a rating of AAA.

In addition to Bloomberg market data, Mr. Burns also independently

researched all investment-grade, long-term industry bonds with 15 to 20 years

remaining to maturity from market data compiled by Thomson Reuters Eikon

(industry Thomson Reuters). He included both publicly traded bonds (public

bonds) and privately placed bonds (private bonds) in his research. The population

of the bonds that Mr. Burns identified is small; for A rated bonds, six public and

eight private, for BBB rated bonds, nine public and three private. A rated public

bonds had YTM from 5.94% to 11.86%, and BBB rated public bonds from 7.49%

to 10.74%. Mr. Burns determined the average and median YTM on the basis of

YTM on both private and public bonds. The Thomson Reuters market data

include two public bonds issued by AIG Life Insurance Co. (AIG Life), a parent

company of American General and subsidiary of AIG in its multitiered ownership

-52-

[*52] structure. The two AIG Life bonds had YTM of 8.92% and 11.86% and

remaining terms of 19.3 years and 15.7 years, respectively.

In total, Mr. Burns provided the following yields:

Investment American General MassMutual

Policy illustration 5.5% 4.5%

Historic 6.15 - 8.57 6.17 - 7.6

Average 8 6.7

Burns 6.44 - 6.76 5.5 - 5.74

Company-specific debt 9.57 - 10.92 6.89 - 7.09

Industry Bloomberg

10-year bonds 5.54 - 7.27 5.54

30-year bonds 6.12 - 7.11 6.12

Industry Thomson Reuters

Average 7.92 - 8.53 7.92

Median 7.81 - 8.42 7.81

On the basis of the above information, Mr. Burns determined a base range

of 6.8% to 10.9% for American General and 5.7% to 7.1% for MassMutual. The

parameters for the base ranges correspond to the Burns yields (low end) and the

company-specific debt yields (high end). The midpoints of the ranges are 8.85%

and 6.4% for American General and MassMutual, respectively.

-53-

[*53] Mr. Burns determined a .5 liquidity premium using market data from

Thomson Reuters for public and private bonds. He provided the range, average,

and median YTM from the market data as follows:

Bond type Range Average Median

A rated private 6.41 - 10.02% 8.1% 8.09%

A rated public 5.94 - 11.86 7.69 6.72

All A rated 5.94 - 11.86 7.81 7.92

BBB rated private 8.55 - 8.89 8.71 8.73

BBB rated public 7.49 - 10.74 8.47 8.03

All BBB rated 7.49 - 10.74 8.42 8.53

The percentage differences in average and median YTM (yield differentials)

are:

Bond type comparison Average Median

Private v. all bonds (A rated) .18 .28

Private v. public (A rated) .41 1.37

Private v. all bonds (BBB rated) .19 .31

Private v. public (BBB rated) .24 .7

Mr. Burns used the yield differentials in the average YTM on private bonds

versus all bonds, .18 and .19 for A rated and B rated bonds, respectively, as the

basis for the liquidity premium but opined that a liquidity premium of .5 was

-54-

[*54] appropriate, acknowledging the split-dollar agreements are less illiquid than

private bonds.

Finally, Mr. Burns acknowledged that AIG’s 2008 bankruptcy and

Government bailout might affect an investor’s decision to purchase American

General’s life insurance policies even though American General did not have

financial obligations with respect to AIG’s debt. He opined that a higher discount

rate should apply for American General than for MassMutual. He further testified

that AIG’s company-specific debt yield accounted for its financial instability and

was an appropriate indicator of the discount rate for American General.

3. Petitioners’ Valuations

Mr. Stephanson and Dr. Khetan determined a discount rate of 15% for both

insurers on the basis of yields on life settlements. A life settlement transaction

involves the sale of an existing life insurance policy in a secondary market for an

immediate cash payment. The investor in a life settlement may be required to pay

premiums on the policy. The average death benefit for policies sold in life

settlements was $75,000, substantially lower than the $10 million death benefits

per policy underlying the split-dollar agreements.

Both experts testified that life settlements are suitable alternative

investments to the split-dollar agreements in terms of the associated risks. They

-55-

[*55] opined that both life settlements and the split-dollar agreements depend on

the insured’s life expectancy, have uncertain holding periods and uncertain yields,

and lack periodic income distributions.

a. Mr. Stephanson’s Valuation

Mr. Stephanson testified that life settlement yields ranged from 15% to 18%

and averaged 15.83%. He relied on one source for the life settlement yield, a June

2009 magazine article, in his appraisal attached to the estate tax return. He

identified the following risks from the split-dollar agreements: the size of the

investment ($5 million per agreement), a lack of periodic income distributions, the

uncertain holding period, a lack of marketability, and the complexity of the

split-dollar agreements. He testified that the complexity of the split-dollar

agreements and the limited financial information available to investors would

make it difficult for investors to price the split-dollar rights. He opined that these

factors limit the pool of potential investors, increase risk, and increase the discount

rate. He acknowledged that the risk related to the uncertain holding period is

partially remedied by mortality statistics.

Mr. Stephanson considered other alternative investments including 30-year

U.S. Treasury bonds, privately held notes, publicly traded securities for large and

small companies, and private investments in real estate (private real estate) and

-56-

[*56] privately owned businesses (private entities). He provided yields on these

investments as follows:

Investment type Yield

Privately held notes 10 - 15%

30-year U.S. Treasury bonds 4.1

Large company stock 5.9

Small company stock 11.9

Private real estate 16 - 25

Private entities 18 - 35

Mr. Stephanson opined that the split-dollar agreements were substantially

riskier than long-term U.S. Treasury bonds and the industry bonds that Mr. Burns

relied upon because the split-dollar agreements did not have a fixed maturity date,

periodic interest payments, or an organized market. Mr. Stephanson opined that

the discount rate should be higher than YTM on A rated public bonds. The

median and the average industry Thomson Reuters YTMs for public bonds were

6.72% and 7.69%, respectively. Finally, he opined that the risk of investing in the

split-dollar agreements was significantly lower than the risks from private real

estate and private entities and, thus, opined that the discount rate should be lower

than yields on those investments, which ranged from 16% to 35%.

-57-

[*57] b. Dr. Khetan’s Valuation

Dr. Khetan prepared a more detailed review of life settlement yields but also

determined a 15% discount rate. He researched multiple written sources,

including news articles, marketing materials, and online sources, and interviewed

market participants. The market participants, an actuarial firm and a life

settlement specialist firm, provided ranges of 12% to 15% and 16% to 22%,

respectively. The yields from the other sources Dr. Khetan considered varied

considerably. In his analysis, he determined that the appropriate range was from

9.3% to 23.2%.

Dr. Khetan took an approach similar to Mr. Stephanson’s, identifying the

risks from an investment in the split-dollar agreements and researching financial

instruments to identify alternative investments with similar risks.6 He determined

that investments in split-dollar agreements had the following risks: a lack of

marketability, a lack of control over the underlying life insurance policies, limited

collateral, an uncertain holding period, an uncertain yield, a potential for loss, and

no periodic income distributions. He acknowledged differences between the

split-dollar agreements and life settlements including that an investor in a life

6

Dr. Khetan also considered corporate bonds and the sale of structured

annuity settlements and nonassignable lottery winnings but determined life

settlements were the most suitable alternative investment.

-58-

[*58] settlement may need to pay premiums and the insured typically has impaired

health from a nonterminal illness such as diabetes. Finally, he opined that life

settlements are more liquid than the split-dollar agreements.

Dr. Khetan’s sources lacked transparency and did not disclose information

about the policies, the insurance companies that underwrote the policies, or the

insureds’ life expectancies or health. He included yields on viatical settlements, a

type of life settlement where the insured sells his policy after being diagnosed as

terminally ill, making viatical settlements substantially riskier with higher yields

than life settlements. The insured’s shortened life expectancy in a viatical

settlement causes the return to be very sensitive to any inaccuracies in the life

expectancy estimate. The return would decrease sharply if the insured were to

outlive his life expectancy even for a short time.

c. Mr. Burns’ Rebuttal

Mr. Burns disagreed with the use of life settlement yields to determine the

discount rate, primarily because of the lack of transparency and the lack of

disclosure of policy information in the sources that Mr. Stephanson and Dr.

Khetan relied upon. Mr. Burns also testified to other factors that made life

settlements unreliable as alternative investments. He testified that the insured in a

life settlement typically has a life expectancy of 11 to 12 years and the yield is

-59-

[*59] sensitive to any inaccuracy in the life expectancy. If the insured were to

outlive the life expectancy, the yield would decrease and the decrease would be

more dramatic for a shorter life expectancy. He testified that the opposite occurs

with the split-dollar agreements: The cash surrender values are likely to increase

throughout the brothers’ lives and, thus, the amount of the CMM trust’s payout

would continue to increase if a brother outlived his life expectancy.

Finally, Mr. Burns provided market data showing that life settlement yields

are lower than the 15% discount rate determined by Mr. Stephanson and Dr.

Khetan. His data included a 2008 academic study showing life settlement yields

of 8% to 12% and a 2012 industry study showing yields of 9% to 13%. He further

testified that he would not rely on these studies because of a lack of transparency

and their failure to identify sources for the yields.

d. Investment Value

Mr. Stephanson also determined a value for the split-dollar rights on the

transfer date using an investment value standard. Respondent did not provide

expert testimony on the value of the split-dollar rights on the transfer date.

Investment value is a recognized standard of value for appraisal purposes. It

values an asset from the perspective of a particular investor, in this case Mrs.

Morrissette, on the basis of her individual investment goals and risk sensitivity

-60-

[*60] rather than from the perspective of a hypothetical investor. Mr. Stephanson

opined that in certain situations a specific investor may be willing to pay a higher

price for an asset than a hypothetical buyer. He testified that investors may weigh

noneconomic factors, for example, the social responsibility of an investment or its

environmental, social, and governance impact such as the sustainability or

environmental impact of a corporation’s actions. He testified that not all investors

seek to maximize financial gain. Mr. Burns agreed with this statement as

discussed further below.

For the investment value Mr. Stephanson considered the risks specific to the

CMM trust in owning the split-dollar rights and the return required to induce the

CMM trust to invest in the split-dollar agreements in the light of Mrs.

Morrissette’s unique goals. He evaluated the same risks that he identified in his

fair market value analysis but opined that Mrs. Morrissette would disregard or

marginalize the risks as compared to how a hypothetical investor would view

them. He testified that Mrs. Morrissette could have placed a higher value on the

split-dollar agreements than a hypothetical investor would have in the open market

because the agreements helped her to accomplish her goal of keeping Interstate in

the family. He opined that Mrs. Morrissette would have been less concerned with

the large size of the investment, lack of periodic income distribution, uncertain

-61-

[*61] holding periods, lack of marketability, and complexity and atypical

characteristics of the split-dollar agreements. He opined that the most significant

difference in the valuation for Mrs. Morrissette and for a hypothetical investor is

the intangible benefits that Mrs. Morrissette received from the split-dollar

agreements including retained family ownership of Interstate, a smooth transfer of

management to her grandchildren, and an inducement for her grandchildren to

work at Interstate.

On the basis of these considerations, Mr. Stephanson determined a lower

discount rate for the investment value of 4.54% on the basis of yields on

long-term, tax-exempt, zero-coupon municipal bonds (municipal bonds). He

assumed that the death benefits would not be taxed when paid to the CMM trust.

He understood that Mrs. Morrissette had liquidated bonds to pay the premiums

which he testified supported his use of municipal bond yields. He analyzed 181

municipal bonds issued from May 1, 2006, to April 30, 2007, with terms of 11.9 to

33.7 years. The offering yields ranged from 4.2% to 5.1%, and the median

offering yield was 4.54%. He did not provide YTM. He also researched data

compiled by the Government Publishing Office that established an average yield

for high-grade municipal bonds of 4.32%. He further testified that policy

-62-

[*62] illustration yields, 5.5% and 4.5% for American General and MassMutual,

respectively, support the 4.54% discount rate.

Finally, Mr. Stephanson testified to the need to consider the significant

changes in the economic conditions between the transfer date and the valuation

date, specifically the intervening economic recession in the fall of 2008,

historically low interest rates, market volatility, and a decreased availability of

credit on the valuation date. He opined that as of the valuation date investors were

choosing less risky investments with lower expected returns but greater stability.

He testified that these changes in investors’ decision making would have adversely

affected the marketability of the split-dollar agreements on the valuation date and

would support a higher discount rate on the valuation date than on the transfer

date.

Mr. Burns recognized the concept of investment value as a measure of value

and agreed that a purchaser might pay more than the fair market value for an asset

in certain circumstances such as when acquiring a business that could provide

unique synergies, purchasing a controlling interest in a corporation, i.e., a control

premium, or purchasing real estate adjacent to property the investor already owns.

However, he testified that investment value is not an appropriate measure of value

for financial assets such as the split-dollar rights. At respondent’s request, Mr.

-63-

[*63] Burns determined an investment value of approximately $21.2 million on

the basis of Mr. Stephanson’s analysis but with a discount rate of 6.1% on the

assumption that the death benefits paid to the CMM trust would not be tax exempt.

4. Comparable Split-Dollar Agreements

Mr. Burns researched public split-dollar agreements from corporate filings

with the Securities and Exchange Commission (corporate filings). He defined

public split-dollar agreements as generally involving unrelated parties. He

reviewed agreements entered into for the purpose of providing an employee

benefit, a reward for service, or an inducement for continued employment. Every

agreement that he researched was between an employer and an executive, director,

or other employee. At respondent’s instruction, Mr. Burns limited his review to

agreements in which the corporation was listed as the policy owner. He identified

and reviewed 89 agreements dated between 1992 and 2017.

According to Mr. Burns’ review, 51 agreements allowed the employer to

unilaterally terminate the split-dollar agreements and an additional 24 agreements

allowed the employer to terminate the employee without cause, which Mr. Burns

also characterized as a right to unilaterally terminate the split-dollar agreement.

According to these numbers, Mr. Burns opined that 84% of the agreements gave to

the employer the right to unilaterally terminate the split-dollar agreement. Mr.

-64-

[*64] Burns determined that 13 of the 14 remaining agreements gave the

employer, either expressly or implicitly, the right to borrow against the policies or

affirmed the employer’s full ownership of the underlying policies. He

characterized the right to borrow or the affirmation of the employer’s right as the

policy owner as providing to the employer unilateral access to the cash surrender

values.

Mr. Burns concluded that only one agreement contained a mutual

termination restriction. The employees under that agreement were the company’s

two founders and 20% shareholders. The purpose of the agreement was to fund

the purchase of the insureds’ stock and protect the company from a large

disposition of stock upon their deaths.

Some of the split-dollar agreements had other provisions that Mr. Burns did

not consider, including 10 agreements where the employees’ rights in the split-

dollar agreements could vest and thereafter the employer could no longer

unilaterally terminate, 9 that restricted the employer’s right to unilaterally

terminate the split-dollar agreements to where the employer terminated the

employee for cause, 2 that prevented unilateral termination after a change of

control, and 1 that limited the employer’s right to unilaterally terminate the

agreement to instances where the agreement caused “significant financial harm”.

-65-

[*65] An additional 12 agreements appeared to contain inconsistent or ambiguous

terms that allowed termination of the employee only for cause or provided for

vesting but contained a unilateral termination right.

OPINION

Section 2001(a) imposes a Federal estate tax on the transfer of a decedent’s

taxable estate. The taxable estate is defined as the value of the gross estate less

applicable deductions. Sec. 2051. The gross estate includes “all property, real or

personal, tangible or intangible, wherever situated’’, to the extent provided in

sections 2033 through 2045. Sec. 2031(a). Section 2033 is a broad inclusion

provision and includes the value of all property in the gross estate to the extent of

the decedent’s interest in the property at the time of her death. Sections 2034

through 2045 explicitly mandate inclusion of more narrowly defined property

interests. Sections 2036 and 2038 are at issue here.

The parties agree that the CMM trust was a revocable trust on the date of

Mrs. Morrissette’s death, and the values of all assets that it held are includible in

the gross estate. Accordingly, petitioners agree that the fair market values of the

split-dollar rights are includible in the gross estate. Respondent seeks to apply

sections 2036 and 2038 to the transfer of the premiums that the CMM trust made

as part of split-dollar agreements and argues that the values of the split-dollar

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[*66] rights should be included in the gross estate at least in the amount of the

transferred premiums, $30 million total, or the cash surrender values of the

underlying policies, approximately $32.6 million total.

Sections 2036 and 2038 require that inter vivos transfers be included in the

gross estate where the decedent retained certain rights or powers in the transferred

property. Both sections impose “a broad scheme of inclusion in the gross estate,

not limited by the form of the transaction, but concerned with all inter vivos

transfers where outright disposition of the property is delayed until the transferor’s

death.” Guynn v. United States, 437 F.2d 1148, 1150 (4th Cir. 1971). Sections

2036 and 2038 are aimed at preventing the use of inter vivos transfers to avoid

estate tax where the decedent has retained enjoyment of the property. Estate of

Strangi v. Commissioner, 417 F.3d 468, 476 (5th Cir. 2005), aff’g T.C. Memo.

2003-145; Estate of Thompson v. Commissioner, 382 F.3d 367, 375 (3d Cir.

2004), aff’g T.C. Memo. 2002-246.

Section 2036, titled “Transfers With Retained Life Estate”, is designed to

recapture the values of assets that the decedent transferred during her lifetime

where she retained economic benefits of the assets. It is intended to include in the

gross estate any inter vivos transfers that are essentially testamentary. Estate of

Bongard v. Commissioner, 124 T.C. 95, 112 (2005). Section 2036(a)(1) applies

-67-

[*67] where the decedent retained possession or enjoyment of the transferred

property or a right to income from the property, and section 2036(a)(2) applies

where the decedent retained a right or power to designate the persons who would

possess or enjoy the property or receive the income from the property (right to

designate). The right to designate can be held either alone or in conjunction with

another person. Id. para. (2). Section 2038(a) addresses revocable transfers. It

applies where the decedent has the power to alter, amend, revoke, or terminate the

transferee’s enjoyment of the property (power to alter) without regard to when or

from what source the decedent acquired such power and without regard to whether

the decedent holds the power alone or in conjunction with any other person.

A split-dollar agreement is an arrangement between an owner and a

nonowner of a life insurance contract in which one party pays all or any portion of

the premiums on the life insurance contract, directly or indirectly, and is entitled to

recover all or any portion of those premiums from, or payment is secured by, the

proceeds of the life insurance contract. Sec. 1.61-22(b)(1), Income Tax Regs. The

split-dollar regulations recognize the use of split-dollar arrangements for gift tax

purposes. For a split-dollar agreement to which the economic benefit regime

applies, the donee may exclude from gross income death benefits received from

the policy as a result of the donor’s having paid gift tax on the cost of current

-68-

[*68] protection. Where the requirements of the economic benefit regime are not

satisfied, the donor’s payment of the premium is treated as a loan. See sec.

1.7872-15(a)(2)(i), Income Tax Regs.

Respondent asserts that under the split-dollar agreements the CMM trust

retained possession, enjoyment or a right to income under section 2036(a)(1), a

right to designate under section 2036(a)(2), or a power to alter under section

2038(a) and, under any of these sections, the cash surrender values of the policies

are included in the gross estate. In general, sections 2036 and 2038 apply if three

conditions are met: (1) the decedent made an inter vivos transfer of property,7

(2) the transfer was not a bona fide sale for adequate and full consideration, and

(3) the decedent retained an interest in or a right or power over the transferred

property that she did not relinquish before her death, as defined in either section.

See Estate of Black v. Commissioner, 133 T.C. 340, 361-362 (2009); Estate of

Bongard v. Commissioner, 124 T.C. at 112.

We have previously held that a decedent’s right to terminate a split-dollar

agreement and to recover at least the cash surrender value were rights, held in

conjunction with another person, to designate the persons who would possess or

7

The parties assumed for purposes of this case that Mrs. Morrissette through

the CMM trust made an inter vivos transfer for estate tax purposes.

-69-

[*69] enjoy the transferred property under section 2036(a)(2) and to alter, amend,

revoke, or terminate the transfer under section 2038(a)(1). Estate of Cahill v.

Commissioner, T.C. Memo. 2018-84, at *15. In that case, the estate argued that

neither section applied because the decedent held the right to terminate the split-

dollar agreements only in conjunction with the counterparty to the split-dollar

agreement and the counterparty could have prevented the decedent from

terminating the split-dollar agreements. Id. at *15-*16. We held that under the

estate’s argument “the words ‘in conjunction with any person’ in section

2036(a)(2), and ‘in conjunction with any other person’ in section 2038(a)(1),

would have no force or meaning.” Id. at *15. Accordingly, we denied the estate’s

motion for partial summary judgment that sections 2036 and 2038 did not apply or

that the bona fide sale exception of either section was met. Id. at *16. The

Commissioner had not filed a motion for partial summary judgment on these

issues, and we declined to grant summary judgment in his favor on the basis that

“there may be other facts or theories not yet presented”. Id. at *35.

Petitioners previously filed a motion for partial summary judgment that Mrs.

Morrissette did not retain interests, rights, or powers as defined in section

2036(a)(2) or 2038(a). Respondent objected to petitioners’ motion but did not file

a cross-motion. In an order dated February 19, 2019, we denied petitioner’s

-70-

[*70] motion, relying on Estate of Cahill, and did not consider section 2036(a)(1).

In their motion, petitioners presented arguments not addressed by the Court in

Estate of Cahill and not yet addressed in this case. We do not need to resolve

these issues now. For the reasons set forth below, we find that the bona fide sale

exceptions to both sections are satisfied. Accordingly, sections 2036 and 2038 do

not require inclusion of the premiums or policies’ cash surrender values in the

gross estate. Rather, the issue in this case is valuation of the split-dollar rights.

A. Bona Fide Sale for Adequate and Full Consideration

Sections 2036 and 2038 both provide exceptions to the recapture of an inter

vivos transfer in the gross estate if the transfer was a bona fide sale for an

adequate and full consideration for money or money’s worth. The exceptions have

the same meaning for both sections. Estate of Mirowski v. Commissioner, T.C.

Memo. 2008-74. The exceptions aim to preclude the reach of sections 2036 and

2038 to transfers in which the decedent received consideration sufficient to protect

against the depletion of the estate’s assets. See Estate of Magnin v.

Commissioner, 184 F.3d 1074, 1079 (9th Cir. 1999), rev’g and remanding T.C.

Memo. 1996-25.

We have interpreted the exceptions as two prongs: (1) a legitimate and

significant nontax purpose and (2) adequate and full consideration for money or

-71-

[*71] money’s worth. Estate of Powell v. Commissioner, 148 T.C. 392, 411

(2017). Before we examine the two prongs, we address respondent’s preliminary

argument that the CMM trust’s payment of the premiums does not constitute a sale

for purposes of the exceptions. He argues that the premium payment was not a

sale because the dynasty trusts did not pay any consideration to the CMM trust.

He argues that without consideration the transfer does not qualify as a sale. He

argues that the split-dollar agreements fail to satisfy the definition of a sale, citing

the legal definition of a sale, the transfer of property for a price or the agreement

by which such a transfer takes place. Black’s Law Dictionary 1537 (10th ed.

2014). He argues that the dynasty trusts did not convey the right to repayment and

characterizes the transactions as the CMM trust’s retaining a right to repayment.

Neither sections 2036 and 2038 nor the accompanying regulations define

the term “sale”. The regulations indicate a broad interpretation of the term “sale”

to include transactions that may not otherwise be considered sales in the strictest

sense. Secs. 20.2036-1(a), 20.2038-1(a)(1), Estate Tax Regs. We have also

interpreted the term “sale” for purposes of the bona fide sale exceptions broadly to

include transfers that are not necessarily sales and have defined the term “transfer”

to mean any voluntary act of transferring property. Estate of Bongard v.

Commissioner, 124 T.C. at 113; see Estate of Stone v. Commissioner, T.C. Memo.

-72-

[*72] 2003-309 (treating a contribution of assets to a business entity in exchange

for an interest in the entity as a sale for purposes of section 2036(a)). We have not

relied on the dictionary definition of a sale and do not adopt it now.

Respondent concedes on brief that “[t]here is no doubt that the CMM Trust

transferred property to each of the Dynasty Trusts”. Instead, he argues that the

CMM trust made a transfer and retained the right to repayment. He argues that a

retained right to repayment is not a right conveyed by the dynasty trusts and is not

consideration. Under the terms of the split-dollar agreements, the dynasty trusts

conveyed rights under the life insurance policies that they owned including the

right to payment of the death benefits directly from the insurance companies upon

the deaths of the insureds. Accordingly, we find that there was a sale within the

broad definition of that term.

On the basis of the brothers’ credible testimony, we find as a matter of fact

that the CMM trust’s payment of the premiums was a voluntary act made in good

faith. The CMM trust actually parted with an interest in the transferred funds as it

could not obtain immediate repayment. There was a bargained-for exchange under

each split-dollar agreement that constitutes a sale for purposes of the bona fide

sale exceptions. The parties to the split-dollar agreements could have merely

structured the transfer as a loan with interest and repayment due when the

-73-

[*73] proceeds were collected from the policies. We may presume that the parties

did not structure the fund of transfers in such a manner to ensure that the

agreements would qualify for the economic benefit regime. We do not express

any opinion about such an interpretation of the economic benefit regime.

1. Legitimate Nontax Purpose

The first prong of the bona fide sale exception asks whether Mrs.

Morrissette had a legitimate and significant nontax motive for entering into the

split-dollar agreement. See Estate of Bongard v. Commissioner, 124 T.C. at 113,

118; Estate of Hurford v. Commissioner, T.C. Memo. 2008-278. The nontax

purpose must be an actual motivation, not a theoretical justification, and we

require some objective proof that the nontax reason was a significant factor that

motivated the transfer. Estate of Bongard v. Commissioner, 124 T.C. at 118. We

also recognize that “[l]egitimate nontax purposes are often inextricably interwoven

with testamentary objectives.” Id. at 121. Thus, a finding that the decedent sought

to save estate tax does not preclude a finding of a bona fide sale so long as saving

estate tax is not the predominant motive. Estate of Black v. Commissioner, 133

T.C. at 362-363. The bona fide sale exception further requires that the transfer be

made in good faith. Estate of Bongard v. Commissioner, 124 T.C. at 118; see also

sec. 20.2043-1(a), Estate Tax Regs.

-74-

[*74] In the context of transfers with respect to business entities, we and other

courts have held that efficient, active management of the business and

management succession may be legitimate, nontax purposes. Estate of Bigelow v.

Commissioner, 503 F.3d 955, 972 (9th Cir. 2007), aff’g T.C. Memo. 2005-65;

Estate of Strangi v. Commissioner, 417 F.3d at 481; Estate of Reynolds v.

Commissioner, 55 T.C. 172, 194 (1970). Maintaining control over a family

business can also be a legitimate, nontax purpose. Estate of Bischoff v.

Commissioner, 69 T.C. 32, 39-41 (1977). We have found that closely held, family

entities can provide a legitimate, nontax purpose even where the entity does not

have an active business and was formed merely to perpetuate the decedent’s

buy-hold investment philosophy with respect to publicly traded stock. Estate of

Schutt v. Commissioner, T.C. Memo. 2005-126, 2005 WL 1244686, at *25.

Management of family assets can also be a valid nontax purpose. See, e.g.,

Kimbell v. United States, 371 F.3d 257 (5th Cir. 2004); Estate of Mirowski v.

Commissioner, T.C. Memo. 2008-74; Estate of Stone v. Commissioner, T.C.

Memo. 2003-309; Estate of Harrison v. Commissioner, T.C. Memo. 1987-8.

Mrs. Morrissette’s desire to keep Interstate in her family is a legitimate,

nontax reason for purposes of the bona fide sale exceptions. She put a premium

on maintaining control over Interstate and passing on that control to future

-75-

[*75] generations. At trial, petitioners established that the 1996 plan was seriously

flawed and the 2006 plan corrected those flaws. The split-dollar agreements were

instrumental to ensuring that Interstate’s ownership remained in her family after

her sons died. The brothers had the CMM trust enter into the split-dollar

agreements in good faith.

The brothers wanted to honor their parents’ wish that the three brothers

inherit Interstate equally and pass the company on to their children. However,

they were also realistic about the need to pay estate tax and the possibility that

they would need to sell part of Interstate to pay it. They believed that there was a

significant chance that the family would lose control of Interstate if their families

were not given this option especially in the light of the history of the fighting and

continued hard feelings from Ken and Don’s buyout nearly 20 years before. They

recognized other problems with the 1996 plan. The split-dollar agreements

provided each brother’s children with the option to exit the business and cash out

their interests after the brother’s death and at the same time allowed the remaining

brothers and their families to purchase the interests by funding the buyout. The

buy-sell provision also prevented the brothers from selling their Interstate stock to

outsiders as a means to retaliate against one another for past disputes.

-76-

[*76] The split-dollar agreements also served a second legitimate, nontax purpose,

a smooth transition in Interstate’s management. Bud and J.D. had dedicated their

careers to Interstate and wanted to remain with the company for their professional

futures. They had institutional knowledge. Bud and J.D. credibly testified about

their concerns about the transition of Interstate’s management to them. J.D. had

considered leaving Interstate in 2005 because of these concerns and tried to talk to

Buddy about them. Whenever Bud and J.D. raised management succession

planning with Buddy, he was dismissive. Bud and J.D. had actually resorted to

writing letters to Buddy because their attempts to discuss the issue with Buddy

were not productive. Both Bud and J.D. had experienced the consequences in

their jobs from the long-held grudges among the brothers.

Bud and J.D. also believed that their futures at Interstate could be

jeopardized by the deficiencies in the 1996 plan, and they wanted better protection

of Interstate as a family business. The 2006 plan helped to reduce the uncertainty

of Bud and J.D.’s futures within Interstate by ensuring it would remain a family

business. Bud and J.D. remained as executives and took over Interstate’s

management when the time came.

The family members faced a situation where many of them knew that the

1996 plan did not adequately protect Interstate and there was a significant risk that

-77-

[*77] the family would lose control over the business after Mrs. Morrissette’s

death or the brothers’ deaths. Yet Buddy refused to fix the deficiencies in the

1996 plan until he, his brothers, and his sons met Mr. Meltzer and Mr. McNair.

Family members credibly testified about their concerns with the 1996 plan. Mr.

and Mrs. Morrissette had devised the 1996 plan to ease the tensions among the

brothers, but it did little to improve the brothers’ relationships. In fact, the plan

caused Buddy to have more hard feelings. He felt cheated and believed that his

parents did not recognize or reward his loyalty.

For years family members believed that they needed a better plan to protect

Interstate as a family business. They understood that the 1996 plan could

negatively affect Interstate’s financial stability and its Government contracts,

which accounted for a substantial portion of its business. Interstate’s accountant

tried to warn Buddy about the potential problems with the 1996 plan, but Buddy

refused to do anything. In fact, after meeting Mr. McNair, Buddy initially refused

to discuss any changes to the 1996 plan because of past family animosity. It is not

clear what changed Buddy’s mind. But Bud’s meeting Mr. Meltzer finally moved

the family forward to establish a long overdue succession plan for Interstate and

Mrs. Morrissette’s real estate holdings.

-78-

[*78] It is also clear to us that the split-dollar agreements were part of an estate

tax saving strategy. The brothers were in part motivated by estate tax saving. It

was not their only motivation, however. Respondent focuses on Mr. Meltzer’s and

Mr. McNair’s marketing of the split-dollar arrangements as an estate tax saving

strategy and the initial communications between the meeting attendances as

evidence of tax motivations. The advisers’ motives or marketing does not control

our view of the purpose of the split-dollar agreements. Respondent also points to

the fact that the brothers quickly decided to engage Mr. McNair after the June

meeting as evidence of tax motivation. He ignores that it took approximately

another five months to implement the transaction and it was not complete until

approximately eight months after Bud first met Mr. Meltzer.

Our caselaw requires the presence of a legitimate, nontax purpose; it does

not require the absence of a tax saving motivation. Tax saving was not the

primary motivation. Significantly, Ken, who made most decisions relating to the

split-dollar agreements, credibly testified that he would have engaged in the split-

dollar agreements even if they had not provided any estate tax saving because of

the nontax financial benefits that they provided. The record establishes decades of

fighting among the brothers including over ownership and inheritance of

Interstate. These are not simply theoretical justifications and were established by

-79-

[*79] the witnesses’ credible testimony. Respondent wants us to ignore credible

testimony in favor of the initial communications among the family members, Mr.

Meltzer, and Mr. McNair after the June meeting. We do not restrict our findings

in such a manner.

The brothers, acting as the cotrustees of the CMM trust, sought to ensure

that Mrs. Morrissette’s wishes with respect to the future ownership of Interstate

were met to the extent practical given business realities and family dynamics. The

changes made as part of the 2006 plan went against Mrs. Morrissette’s wishes, not

only by allowing the sale of a brother’s stock after his death but also by allowing

adopted children and spouses to inherit Interstate stock. Under the 1996 plan,

each brother also had a general power of appointment over the assets in his AEM

subtrust which he could use to distribute assets in a manner that went against the

parents’ wishes. Another flaw with that plan.

The fact that the changes made by the 2006 plan were inconsistent with Mr.

and Mrs. Morrissette’s wishes does not cause us to find a lack of a significant,

legitimate nontax purpose. The brothers did their best to honor their parents’

wishes. On the basis of the above facts and the family members’ credible

-80-

[*80] testimony, we find a legitimate, nontax purpose.8 Ken credibly testified at

trial that he would have had the CMM trust enter the split-dollar arrangements

even if there had been no tax saving.

We dismiss respondent’s arguments to the contrary. Respondent speculates

that Mrs. Morrissette disapproved of the 2006 plan and was unwilling to pay the

premiums, which is the reason the brothers had a conservator appointed. The facts

in the record do not support that presumption. The circuit court appointing the

conservator determined that Mrs. Morrissette was incapable of making financial

decisions. Credible testimony establishes that the brothers decided to use a

conservator to protect against future legal disputes over the 2006 plan and to

protect against one brother’s backing out of the plan at the last minute.

Respondent argues that the brothers stood on both sides of the split-dollar

agreements. A taxpayer’s standing on both sides of a transaction can indicate

there is no legitimate, nontax purpose for the transfer. Estate of Hillgren v.

Commissioner, T.C. Memo. 2004-46. Intrafamily transactions often involve a

party’s standing on both sides of the transactions, but such transactions can still

8

Respondent contends that Ken and Don made statements inconsistent with

their trial testimony during informal interviews. Upon our review of interview

transcripts, trial testimony, and the documents in the record, we find the brothers’

trial testimony credible. We do not agree that Ken and Don made inconsistent

statements during the interviews.

-81-

[*81] satisfy the bona fide sale exception. Estate of Thompson v. Commissioner,

382 F.3d at 382. An intrafamily transfer requires heightened scrutiny to ensure

that the transfer is not a sham or a disguised gift but does not foreclose the

existence of a bona fide sale. Estate of Bongard v. Commissioner, 124 T.C.

at 119. For an intrafamily transfer, even the absence of negotiations is not a

compelling factor when other objective factors establish the bona fides of the

transaction. Kimbell, 371 F.3d at 263. The brothers’ presence on both sides of the

split-dollar agreements does not change our factual determination of a bona fide

transfer particularly in the light of the brothers’ contentious relationship, which

sometimes might have been more accurately described as hostile. It is likely that

at least one brother would have objected to anything that another brother proposed

even if it was in the objecting brother’s best interest or a brother would object just

to spite his brothers. See Estate of Stone v. Commissioner, T.C. Memo. 2003-309

(holding that resolving intrafamily disputes that had led to litigation in the past is a

legitimate, nontax purpose).

More problematic is the distribution of the split-dollar agreements to the

counterparty to the agreement. After that time, the brothers had complete control

over the policies and could cancel them at any time although Ken credibly testified

that he did not intend to do so. Respondent argues that the brothers understood

-82-

[*82] that the dynasty trusts would inherit the split-dollar rights and the brothers

would have complete control over the policies to surrender them at any time. We

disagree for two reasons. The CMM trust agreement gave to the brothers as

cotrustees the discretion to distribute each split-dollar agreement, and, given their

relationships, distribution was not guaranteed. More importantly, the effects of

the possible distribution of the split-dollar agreements after Mrs. Morrissette’s

death are more relevant to our determination of the fair market value of the split-

dollar rights on the valuation date and not whether the transfers qualified as bona

fide sales. The brothers also understood their future obligations under the buy-sell

provision, and Ken and Don credibly testified that there was no prearranged plan

to terminate the split-dollar agreements upon their mother’s death.

Respondent also argues that the type of life insurance policies purchased,

ones with high initial cash values and modest death benefits, is proof of the tax

motivations of the split-dollar agreements. He argues that the high initial cash

surrender values removed more assets from the gross estate. However, the

brothers credibly explained the reasons they choose policies with high initial cash

surrender values. They wanted to ensure that the CMM trust would be adequately

compensated for financing the premiums from the outset, i.e., that the CMM trust

would earn interest for funding the premiums through inside buildup.

-83-

[*83] Respondent also argues that the fact that Buddy’s children retained his stock

after his death establishes that the buy-sell provision was not a legitimate reason

for the CMM trust’s transfer of the premiums. He also cites the fact that the

insurance proceeds were redistributed equally among the three dynasty trusts. But

the buy-sell provision had substance. It makes sense that Bud and J.D. wanted to

retain their father’s voting stock as they worked at Interstate. They wanted the

2006 plan to protect their careers at Interstate. Even though they chose not to sell

when their father died, the buy-sell provision and the split-dollar agreements

protected them by giving them a chance to buy their uncles’ stock. Moreover,

respondent ignores Buddy’s cashout of his nonvoting stock before Mrs.

Morrissette died, making a buyout after his death less important from a financial

standpoint.

Finally, respondent argues that the Van Lines loan used to pay the premiums

is evidence that the split-dollar agreements were tax motivated. He speculates that

the loan was not repaid and questions the CMM trust’s ability to repay it. We

agree with petitioners that the issue of nonpayment is a new issue raised on brief

and is not properly before the Court.9 A party may not raise a new issue on brief

9

Respondent also argues that the estate’s reporting of the loan effectively

reduced the reported value of the split-dollar rights by the loan amount for a net

(continued...)

-84-

[*84] where consideration of the issue would surprise or prejudice the opposing

party. Smalley v. Commissioner, 116 T.C. 450, 456 (2001). Furthermore, the loan

was secured, and interest was charged and paid. The loan was treated as an

advance of Interstate’s shareholder distribution and was used to fund a small

portion of the total premiums. The CMM trust had assets sufficient to repay the

loan at its maturity apart from the insurance proceeds. The estate reported the

loan, which was due after Mrs. Morrissette’s death, as a liability. Upon

distribution of the split-dollar rights, the dynasty trusts executed notes to Van

Lines. Under the totality of the facts, use of the loan does not preclude a finding

of legitimate, nontax purposes.

Taking into account the totality of the facts and circumstances, the CMM

trust had legitimate and significant nontax purposes for entering into the split-

dollar agreements and funding payment of the premiums in exchange for

repayment plus interest in the form of inside buildup. An important purpose of the

transfer was to promote the management succession and efficiency and to protect

9

(...continued)

value of $3.3 million for the split-dollar rights. The netting argument is also a new

issue not properly before the Court. We cannot evaluate respondent’s netting

argument unless petitioners had the opportunity to address relevant evidence such

as whether the loan was reported as an asset of Interstate that would increase

Interstate’s value and the value of the gross estate.

-85-

[*85] corporate profits for the accumulation of capital to develop the business. On

the basis of the record before us, we find that unrelated parties would have agreed

to similar terms. Respondent has not argued otherwise.

2. Adequate and Full Consideration

To qualify for the bona fide sale exceptions, the transfer must have been

made for adequate and full consideration in money or money’s worth. Secs.

20.2036-1(a), 20.2038-1(a), Estate Tax Regs. Adequate and full consideration for

purposes of sections 2036 and 2038 requires an exchange of a roughly equivalent

value that does not deplete the estate. Estate of Bongard v. Commissioner, 124

T.C. at 119; see also Kimbell, 371 F.3d at 262, 265 (describing adequate and full

consideration as an exchange of a “commensurate (monetary) amount” that “does

not deplete the estate”); Wheeler v. United States, 116 F.3d 744, 759 (5th Cir.

1997) (stating adequate and full consideration requires that the sale not deplete the

gross estate). Petitioners have the burden to prove that the CMM trust received

adequate and full consideration upon the execution of the split-dollar agreements.

See Estate of Bongard v. Commissioner, 124 T.C. at 118.

a. Economic Benefit Regime

Before addressing whether the CMM trust received adequate and full

consideration, we first address petitioners’ argument that satisfaction of the

-86-

[*86] economic benefit regime means that there was adequate and full

consideration. Petitioners argue that estate tax consequences of the split-dollar

agreements should be consistent with the economic benefit regime. The CMM

trust’s payment of the premiums was not a gift for gift tax purposes, which means,

according to petitioners, the transfer was an exchange for adequate and full

consideration.

Compliance with the economic benefit regime does not mean that the

adequate and full consideration requirement is met. Estate of Cahill v.

Commissioner, at *33. Under the plain text of the regulations, the economic

benefit regime does not apply for estate tax purposes. The regime is set out in the

income tax regulations, and the regulations state that the regime applies for

income, gift, employment, and self-employment tax purposes. Sec. 1.61-22(a),

Income Tax Regs. Estate tax is not listed. The economic benefit regime does not

use the phrase “adequate and full consideration” or otherwise invoke the concept

of adequate and full consideration. Rather, it addresses a separate fundamental

question of gift tax, whether there is a completed transfer. See sec. 2512

(requiring a completed transfer of property to impose gift tax). The economic

benefit regime does not require a comparison of the amount of the premium

payment with the value of the rights that the CMM trust received in exchange.

-87-

[*87] Accordingly, petitioners cannot rely on the economic benefit regime to

establish that the CMM trust received adequate and full consideration.

b. Definition of Adequate and Full Consideration

Respondent argues that adequate and full consideration is determined on the

basis of a willing buyer and a willing seller who are hypothetical persons

dedicated to achieving maximum economic advantage. See Estate of Bright v.

United States, 658 F.2d 999, 1005-1006 (5th Cir. 1981) (describing a

willing buyer and a willing seller as hypothetical persons); Estate of Davis v.

Commissioner, 110 T.C. 530, 535 (1998). He argues, and may be correct, that a

hypothetical investor would demand a higher return than the CMM trust to

account for the split-dollar agreement’s lack of marketability and the risk

associated with the brothers’ unknown health or the uncertainty of their life

expectancies. The CMM trust would discount such factors especially as we find,

on the basis of the brothers’ credible testimony, that the brothers’ dynasty trusts

and the CMM trust intended to retain the split-dollar agreements.

The adequacy of consideration is not defined on the basis of a willing buyer

and willing seller and is not judged from the perspective of hypothetical persons.

See Kimbell, 371 F.3d at 266. Rather, such concepts are part of the definition of

fair market value. Id. Fair market value is the price at which property would

-88-

[*88] change hands between a willing buyer and a willing seller, neither being

under any compulsion to buy or to sell and both having reasonable knowledge of

the relevant facts. United States v. Cartwright, 411 U.S. 546, 551 (1973); sec.

20.2031-1(b), Estate Tax Regs.

The bona fide sale exception does not require an arm’s-length transaction,

and an intrafamily transfer can constitute a bona fide sale. Estate of Bongard v.

Commissioner, 124 T.C. at 122-123; see secs. 2036, 2038; secs. 20.2036-1(a),

20.2038-1(a), Estate Tax Regs.; see also Estate of Thompson v. Commissioner,

382 F.3d at 382-383. However, intrafamily transfers require heightened scrutiny.

Estate of Bongard v. Commissioner, 124 T.C. at 122-123; see also Estate of

Thompson v. Commissioner, 382 F.3d at 382-383; Kimbell, 371 F.2d at 262-263.

Adequacy of consideration is ascertained on the basis of what would occur in an

arm’s-length transaction. Estate of Bongard v. Commissioner, 124 T.C. at 122-

123. We consider whether “the terms of transaction differed from those of two

unrelated parties negotiating at arm’s length.” Id. at 123.

Respondent inappropriately conflates the definition of adequate and full

consideration with that of fair market value. To the extent that respondent argues

that adequate and full consideration should be defined as fair market value for

purposes of this case, we disagree. Respondent contends without any support in

-89-

[*89] the record that Mrs. Morrissette’s unwillingness to enter into the split-dollar

agreements is the reason the brothers sought the appointment of the conservator.

The brothers credibly testified that they sought the appointment because of the

past conflict among the brothers.

The parties’ experts agree that an investor may make investment choices for

reasons other than maximizing financial return. In Kimbell, 371 F.3d at 265-266,

the Court of Appeals for the Fifth Circuit recognized that there was “nothing

inconsistent” with acknowledging that an investor received a partnership interest

for adequate and full consideration and the partnership interest had a substantially

lower fair market value than the assets contributed to the partnership (a 50%

discount in that case).10 The court described the exchange as “a classic informed

trade-off.” Id. at 266; see Estate of Thompson v. Commissioner, 382 F.3d at 381

(recognizing that the discounted value of the partnership interest does not

automatically constitute inadequate consideration). It stated that the exchange

involved financial considerations other than the transferor’s ability to immediately

sell the newly acquired assets “for 100 cents on the dollar.” Kimbell, 371 F.3d

10

Petitioners incorrectly argue that Kimbell rejected the roughly equivalent

test when the transferor receives financial benefits other than the purchase price.

The court in Kimbell recognized the roughly equivalent test. None of the Court of

Appeals cases cited by petitioners expressly rejected the roughly equivalent test.

-90-

[*90] at 266. It noted that investors who make such an investment do so for

benefits such as management expertise, security or preservation of assets, and

capital appreciation. Id. Petitioners refer to these financial benefits as intangible

benefits.

As discussed above with respect to the legitimate, nontax purposes of the

split-dollar agreements, the split-dollar agreements provided financial benefits

other than the ability to immediately sell the split-dollar rights or to collect on the

split-dollar rights, i.e., repayment plus inside buildup, such as management

succession and efficiency and capital accumulation. The split-dollar agreements

as part of the 2006 plan provided incentives for Bud and J.D. to remain at

Interstate. Overall, the 2006 plan protected against foreseeable risks to Interstate’s

business.

An underlying problem of respondent’s case is that he did not provide

expert testimony on the value of the split-dollar rights on the transfer date except

for a rebuttal of Mr. Stephanson’s investment value, described infra.11 He argued

11

Mr. Stephanson determined a discount rate of 4.54% for the investment

value on the basis of yields on tax-exempt municipal bonds. Respondent argues

that the death benefits would have been taxed when paid to the CMM trust

because it was not a beneficiary of the policies. Petitioners argue that it was a

beneficiary. Mr. Burns’ rebuttal changed only the tax treatment of the death

benefits, increased the discount rate to 6.1% to account for the tax, and determined

(continued...)

-91-

[*91] that consideration should be based on a fair market value standard but did

not provide expert testimony on the split-dollar rights’ fair market value on the

transfer date. Instead, he argues that the value that the estate reported for the split-

dollar rights approximately three years later establishes that the CMM trust did not

receive adequate and full consideration. We agree with respondent that a rational

investor would not give up approximately $23 million in value to achieve the

nontax purposes achieved through the split-dollar agreements. However, we do

not rely on the estate’s reported value to determine the amount of consideration in

the bargained-for exchange on the transfer date and do not agree that the claimed

value is the fair market value of the split-dollar rights.

We measure the adequacy of consideration on the transfer date, not the

decedent’s death date. Estate of D’Ambrosio v. Commissioner, 101 F.3d 309, 313

(3d Cir. 1996), rev’g 105 T.C. 252 (1995). As the Court of Appeals for the Third

Circuit there observed:

11

(...continued)

an investment value of approximately $21.2 million. We do not need to determine

either whether the CMM trust was a beneficiary or the correct tax treatment of a

payout of death benefits to the CMM trust because we do not adopt the investment

value. Nor is it necessary to address respondent’s alternative argument that the

opined investment value, $27 million, is not roughly equivalent to the $30 million

in premium payments.

-92-

[*92] There is no way to know ex ante what the value of an asset will be at

the death of a testator; although the date of death can be estimated

through the use of actuarial tables, the actual appreciation of the

property is unknowable * * * . Consequently, there is no way to ever

be certain in advance whether the consideration is adequate and thus

no way to know what tax treatment a transfer will receive. * * *

Id.

We first consider whether the CMM trust received adequate and full

consideration as part of a bona fide sale on the transfer date and, if it did, we then

decide the fair market values of the split-dollar rights on the valuation date.

When we examine intervening events between the transfer date and the

valuation date, which were significant, it is clear that the fair market values were

not the same on the two dates. Don credibly testified that although Mrs.

Morrissette had been diagnosed with Alzheimer’s disease the previous year, she

was in good health. Ken was diagnosed with terminal cancer and was no longer

insurable. We would be remiss not to at least acknowledge that Mrs. Morrissette

could have outlived any one of her sons. The split-dollar agreements were a safe

investment with an adequate interest rate.

c. Investment Value Standard

Petitioners presented an investment value of $27 million as a measure of

adequate and full consideration. Investment value measures value on the basis of

-93-

[*93] the perspective of the individual investor and thus differs from fair market

value, which relies on the perspective of hypothetical persons. Petitioners argue

that we should consider Mrs. Morrissette’s unique investment goals and individual

circumstances when determining whether she received adequate and full

consideration. To support this proposition, petitioners cite caselaw, including

Kimbell, holding that adequate and full consideration is not determined on the

basis of the willing buyer and willing seller standard.

Kimbell recognizes that an intrafamily transfer does not automatically

disqualify a transfer from the bona fide sale exception. To this end, Kimbell and

our caselaw establish an arm’s-length standard. The adequate and full

consideration requirement is met where the exchange is on terms similar to those

that would occur in an arm’s-length transaction. Estate of Bongard v.

Commissioner, 124 T.C. at 122-123.

As the experts testified, a transferor for adequate and full consideration may

have financial considerations other than obtaining the highest price. See Kimbell,

371 F.3d at 266. Such financial considerations are measurable by objective

evidence without the need to adopt a value from Mrs. Morrissette’s perspective.

Accordingly, we do not adopt the investment value offered by Mr. Stephanson.

-94-

[*94] d. Adequacy of the Consideration

We hold that the CMM trust received adequate and full consideration on the

basis of the split-dollar agreements’ repayment terms that included interest earned

in the form of inside buildup of the insurance policies. The minimum interest rates

and the actual appreciation in the policies’ cash values were higher than the

interest rates that the CMM trust had been earning on the money. Respondent

does not argue that the repayment terms were inadequate. The split-dollar

agreements also provide the additional benefit of deferral of tax on the policies’

inside buildup and the tax-exempt payout of the death benefits to the beneficiaries.

Respondent argues that Estate of Cahill involved “essentially the exact same

circumstances”. In that case, the decedent, at age 90, obtained a five-year bank

loan to pay the entire amount of the $10 million in premiums. Here we have a 75-

year-old family business and a decedent with assets sufficient to pay a substantial

portion of the premiums. Here also, the decedent owned assets and other sources

of income to repay the small loan she did obtain.

In addition, Estate of Cahill did not involve active business operations with

related financial considerations such as management efficiency and succession,

capital accumulation and long-held grudges that put those financial considerations

at risk. The split-dollar agreements provided financial benefits similar to those

-95-

[*95] present in Kimbell including management expertise, security and

preservation of assets, and capital appreciation. Kimbell, 371 F.3d at 266.

Kimbell accepted theses types of financial benefits as reducible to a money value.

The CMM trust and Mrs. Morrissette received financial benefits from the

split-dollar agreements including retained family control over Interstate, a smooth

management succession, organizational stability, and protection of Interstate’s

capital by providing a source of funding to pay estate tax on the brothers’ deaths.

Mrs. Morrissette placed a high value on keeping Interstate within the family. The

financial benefits were significant and are relevant to ascertaining the

consideration received. Kimbell accepted similar benefits without quantifying

them. Id. at 266-267 (finding that partnership interest discounted at 50% of the

value of the assets contributed to the partnership was adequate and full

consideration without quantifying the value of the other financial benefits

present).

Finally, respondent argues that the aggregate reported value of $7.5 million

demonstrated the lack of adequate and full consideration. We do not rely on the

reported values of the split-dollar rights to determine the amount of the

consideration received and, for the reasons stated below, find that the estate

substantially undervalued the split-dollar rights for reporting purposes. With the

-96-

[*96] expert testimony, there is no need for us to rely on the reported value three

years after the transfer date to ascertain the adequacy of the consideration.

Estate tax saving was not achieved through execution of the split-dollar

agreements alone but rather through the undervaluation of the split-dollar rights.

In exchange for $30 million, the dynasty trusts agreed to purchase life insurance

and repay the CMM trust. The transactions created contract rights, and Mrs.

Morrissette retained the contract rights during her lifetime and held them at the

time of her death. She no longer had use of or access to the $30 million. The

split-dollar agreements changed the nature of the CMM trust’s relationship with

the funds it transferred. See Estate of Thompson v. Commissioner, 382 F.3d at

377 (finding the decedent’s relationship to the transferred assets remained the

same after the transfer).

B. Section 2703 Special Valuation Rule

The first step in the valuation process is to determine the property includible

in the gross estate. The parties agree that the split-dollar rights are assets that are

includible in the gross estate. The estate included the split-dollar rights in the

gross estate but reported values for the rights substantially discounted from the

$30 million in premiums that the CMM trust paid. By doing so, the estate

significantly undervalued the split-dollar rights.

-97-

[*97] Before we determine the fair market values of the split-dollar rights, we

must consider application of the special valuation rules of section 2703. Section

2703(a) provides that the value of any asset includible in the gross estate shall be

determined without regard to (1) any option, agreement, or other right to acquire

or use the property at a price less than its fair market value or (2) any restriction on

the right to sell or use such property. Section 2703(b) provides an exception

where the restriction is a bona fide business arrangement, not a device to transfer

property to members of the decedent’s family for less than adequate and full

consideration, and comparable to the terms of similar arrangements in

arm’s-length transactions.

The parties filed cross-motions for partial summary judgment with respect

to the application of section 2703(a). We denied both motions in an order dated

February 19, 2019, citing Estate of Cahill v. Commissioner, at *28. We held that

section 2703(a) would apply to disregard the mutual termination restriction unless

the section 2703(b) exception is satisfied.12

12

Respondent contends that once we disregard the mutual termination

restriction, the split-dollar rights would have values equal to the cash surrender

values. Because the sec. 2703(b) exception applies, we do not need to determine

the values of the split-dollar rights under the assumption of a unilateral

termination right.

-98-

[*98] Petitioners have established that the section 2703(b) exception applies in

this case. Under the exception, the restriction must be part of a bona fide business

arrangement, not a device to transfer property at less than adequate and full

consideration, and for terms comparable to similar arrangements entered into at

arm’s length. Sec. 2703(b); sec. 25.2703-1(b)(4), Gift Tax Regs.

1. Bona Fide Business Arrangement

A bona fide business arrangement is not defined in the Code or the

regulations. Sec. 2703(b)(1). We have held that a restrictive arrangement must

further some business purpose. Amlie v. Commissioner, T.C. Memo. 2006-76. As

discussed above, the family members credibly testified that the split-dollar

agreements were entered into for valid business purposes and the mutual

termination restriction was added so that no brother could jeopardize the valid

business purposes of the agreements. The split-dollar agreements were intended to

address flaws in the 1996 plan, past disputes, and Interstate’s future management

while attempting to accomplish Mrs. Morrissette’s wish for the company remain

within her family for generations. See Estate of Gloeckner v. Commissioner, 152

F.3d 208, 214 (2d Cir. 1998), rev’g on other grounds T.C. Memo. 1996-148; Kress

v. United States, 382 F. Supp. 3d 820, 839 (E.D. Wis. 2019) (recognizing

-99-

[*99] maintenance of family ownership and control of a business as a valid

business purpose).

The family members credibly testified about the difficulties created within

Interstate’s management and for its employees. Ken credibly testified that he

would have engaged in the split-dollar agreements even if they had not provided

any estate tax saving. It is not clear that the brothers would have agreed to

terminate the split-dollar agreements during Mrs. Morrissette’s life so that the

CMM trust would receive repayment. Assuming that the split-dollar agreements

are viewed as written, the dynasty trusts would receive nothing upon a termination

of the split-dollar agreements.

Furthermore, the CMM trust had valid business reasons for entering into the

split-dollar agreements. Planning for future liquidity needs of a decedent’s estate

constitutes a business purpose under section 2703(b)(1). Amlie v. Commissioner,

T.C. Memo. 2006-76. We find that the mutual termination restriction furthered

the business purposes of the split-dollar agreements and had a significant effect in

supporting those business purposes.

2. Testamentary Device

Under the second prong of the exception, the restriction must not be a

device to transfer property for less than adequate and full consideration in money

-100-

[*100] or money’s worth. Sec. 2703(b)(2). Some facts indicate a testamentary

purpose of the split-dollar agreements. However, under the second prong of the

exception, we consider whether the mutual termination restriction is a device, not

whether the split-dollar agreements in their entirety were a device. Whether a

restriction constitutes a testamentary device depends in part on the fairness of the

consideration received by the transferor when it executed the transaction. See

Estate of True v. Commissioner, T.C. Memo. 2001-167, aff’d, 390 F.3d 1210

(10th Cir. 2004). Respondent does not seek to disregard the split-dollar

agreements in their entirety.

Under the totality of the facts and circumstances, we find that the mutual

termination restriction was not a device to transfer funds at less than adequate and

full consideration. As discussed above, the split-dollar agreements contained

repayment terms that a reasonable investor would have accepted. They provided

inside buildup at a guaranteed interest rate of 3% and in fact provided interest

between 4.75% and 5.4%, higher than the CMM trust had been earning on the

transferred funds. The inside buildup appreciated at rates comparable to those of

long-term bonds. The split-dollar agreements were stable investments that also

provided for tax deferral on the inside buildup. Petitioners argue that the inside

buildup would have been tax exempt although we do not decide that question.

-101-

[*101] Each of these facts negates a finding that the mutual termination restriction

was a device to transfer property for less than adequate and full consideration.

The gift tax treatment of the split-dollar agreements does not change our

conclusion that split-dollar agreements entered into at arm’s length between

unrelated parties would contain a mutual termination restriction comparable to the

one at issue here. To do otherwise, we would need to ignore the insureds were

also senior executives in a successful 75-year-old business who had not only run

the company for nearly 40 years but also significantly developed it.

For reasons stated above with respect to the section 2036 and 2038

exceptions, the CMM Trust received other financial benefits from the premium

payments. The CMM trust received value through continued family control and

management succession and avoidance of uncertainty including possible future

litigation. The turmoil among the family members who served as senior

management executives exposed the fair market value of Interstate to risk that a

prudent investor would have considered. Buddy, who was Interstate’s CEO, had

sought a buyout for years, and the split-dollar agreements provided for one. In

respondent’s view, the CMM trust benefited only because of estate tax saving.

This is clearly not the case, on the basis of the record. The CMM trust received

adequate and full consideration when it executed the split-dollar agreements. The

-102-

[*102] CMM trust relinquished rights over the transferred amounts for additional

certainty about Interstate’s future.

Petitioners argue that the split-dollar agreements were not devices to evade

tax because the net death rights were transferred in accordance with the split-

dollar regulations. Compliance with the regulations does not itself establish that

the split-dollar agreements were not a device to evade tax. See Estate of Cahill v.

Commissioner, T.C. Memo. 2018-84. First, we note that the exception focuses not

on the restriction as part of a bona fide business arrangement and not on the split-

dollar agreements as a whole. Irrespective of the statutory or regulatory wording,

the fact that the split-dollar agreements reduced the estate tax on Mrs.

Morrissette’s estate does not require a finding that the agreements were

testamentary devices. The CMM trust through its cotrustees did not enter into the

split-dollar agreements with an intent to evade estate tax. The cotrustees believed

the terms to be fair at the time the CMM trust executed the split-dollar agreements

including the mutual termination restriction. Accordingly, the mutual termination

restriction satisfies the second requirement of the exception.

-103-

[*103] 3. Comparability With Arm’s-Length Transactions

The comparability prong requires that the restriction would have been part

of an arm’s-length transaction between unrelated parties. Sec. 2703(b)(3); sec.

25.2703-1(b)(4)(i), Gift Tax Regs. Thus, the issue for the third prong of the

section 2703 exception is whether unrelated parties in an arm’s-length transaction

would include a mutual termination restriction in a split-dollar agreement that is

comparable to the mutual termination restriction at issue.

The regulations instruct that the restriction must be comparable to one

struck in a fair bargain among unrelated parties in the same business and that such

a bargain occurs when it conforms with the general practices of negotiated

agreements in that same business. Sec. 25.2703-1(b)(4)(i), Gift Tax Regs. The

regulations caution against using “isolated comparables”. Id. subdiv. (ii). We

have described the third prong of the exception as “more of a safe harbor than an

absolute requirement that multiple comparables be shown.” Amlie v.

Commissioner, T.C. Memo. 2006-76, slip op. at 41.

Respondent offered split-dollar agreements entered into as employee

compensation by publicly traded corporations. Public corporations do not

necessarily meet the regulations’ directive to consider the same business. Mr.

Burns did not provide an analysis of the business of the public corporations or

-104-

[*104] whether any were in the same business as Interstate. The fact that the

corporations were public alone causes us to question whether we should rely on

the agreements as comparable. Interstate has been a family business for over 75

years. Split-dollar agreements entered into by public corporations have little

relevance to ascertaining whether a closely held corporation or its majority

shareholder would include a mutual termination restriction in a split-dollar

agreement. In 2006 Mrs. Morrissette owned 75% of Interstate directly or

indirectly.

However, this is not the only problem that we have with the corporate

filings. On respondent’s instruction, Mr. Burns limited his review to policies

owned by the employer. Here, Interstate did not own the policies and did not have

any ownership rights to the policies. The dynasty trusts owned the policies, and

the split-dollar agreements placed restrictions on their ownership rights. They did

not convey any ownership rights in the policies to the CMM trust. The fact that

the economic benefit regime deems the CMM trust the policy owner for gift or

income tax purposes is irrelevant. We consider the agreements as written just as

Mr. Burns considered the public split-dollar agreements as written. Respondent

has not articulated a convincing reason for placing such a restriction on Mr.

Burns’ testimony.

-105-

[*105] Finally, we do not agree with Mr. Burns’ characterization that 84% of the

reviewed agreements provide a unilateral termination right to the employer or gave

the employer full unilateral access to the cash surrender values. Twenty-six

agreements provided some type of restriction of the employers’ rights to

unilaterally terminate the split-dollar agreements. Vesting for years of service is

one such restriction which is particularly relevant here given the fact that the

brothers were senior executives. Petitioners ask us to consider whether a closely

held corporation would provide life insurance benefits to its senior executives who

had worked within the business for over 40 years. Such consideration is

appropriate. Long-term senior executives would likely demand a mutual

termination restriction comparable to the one at issue, and the reviewed

agreements provide vesting provisions. The mutual termination restriction would

ensure the executives’ rights to the net death benefits similar to vesting in

employment compensation packages on the basis of years of service. In total,

approximately 30% of the public agreements imposed some restriction on the

employer’s termination rights. The termination rights of another 13% are not as

clear as respondent argues.

As discussed above, on these facts we hold the split-dollar agreements were

entered into at arm’s length especially in the light of the brothers’ acrimonious

-106-

[*106] relationships and disputes over Interstate’s ownership. We are satisfied

that a split-dollar agreement entered into by a closely held business and its long-

term senior executives at arm’s length may contain a mutual termination

restriction similar to the one in the split-dollar agreements at issue. Accordingly,

we hold that the third requirement of the section 2703(b)(3) exception has been

met.

On this record, we conclude that the requirements of the section 2703(b)

exception are satisfied and section 2703 does not require disregard of the mutual

termination restriction for purposes of determining the fair market values of the

split-dollar rights.

C. Fair Market Value

For the reasons stated above, resolution of this case requires a determination

of the fair market values of the split-dollar rights. There are two differences in the

experts’ computations: computation of the probability-adjusted expected values of

the policies and of the applicable discount rates to determine the present value of

those expected returns. The latter difference is the reason for substantially all of

the differences in the experts’ opined fair market values. We address each

difference separately.

-107-

[*107] 1. Probability-Adjusted Expected Value

Each expert determined a probability-adjusted expected value for each year

of the brothers’ life expectancies by estimating an expected cash surrender value

for each year and multiplying that value by the brothers’ probabilities of mortality

that year. The experts differed on both factors.

a. Expected Cash Surrender Values

Mr. Stephanson’s and Mr. Burns’ expected cash surrender values differed

slightly. Dr. Khetan’s values differed more significantly. Respondent concedes

that Mr. Stephanson’s calculations are reasonable but objects to Dr. Khetan’s

computations. Respondent argues that Dr. Khetan’s blended yield inappropriately

decreases the expected cash surrender values, making his computations unreliable.

A second concern with Dr. Khetan’s expected cash surrender values is that

he did not use policy illustration yields that were issued closest in time to the

valuation date. Typically, we consider information available on or closest in time

to the valuation date and facts that were reasonably known on the valuation date.

Estate of Gilford v. Commissioner, 88 T.C. 38, 52-53 (1987). Generally,

valuations based on subsequent events that were not foreseeable on the valuation

date are not helpful. Messing v. Commissioner, 48 T.C. 502, 509 (1967).

-108-

[*108] On the basis of these two objections, we do not rely on Dr. Khetan’s

expected cash surrender values. We agree with Mr. Burns’ testimony that the

blended yield inappropriately lowers the expected cash surrender values over the

course of the brothers’ life expectancies. While an investor might consider the

minimum interest rate, use of the blended yield places too much weight on the

actual yields’ decreasing. Policy illustration yields are merely projections, and Dr.

Khetan did not analyze how policy illustration yields differed from actual yields.

On the record, we cannot predict whether actual yields would increase or decrease

after the valuation date. Moreover, we account for uncertainty in connection with

an investment in the split-dollar rights through the discount rate. Use of the

blended yield decreased Dr. Khetan’s opined fair market values by $1.3 million.

b. Probability of Mortality

Both Mr. Stephanson and Dr. Khetan used the IRS mortality table for the

probabilities of mortality. Respondent concedes that it is appropriate to use the

IRS table. See Estate of Van Horne v. Commissioner, 720 F.2d 1114, 1116 (9th

Cir. 1983) (recognizing that IRS actuarial tables are favored in part because they

“provide a needed degree of certainty and administrative convenience in

ascertaining property values” (quoting Bank of Cal. v. United Stat

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