Potential buyers will generally pay more for individual assets than for a corporation's stock. A buyer does this to obtain a higher tax basis for the assets than the corporation had and to avoid hidden liabilities. If the acquired company sells the assets, however, it will owe corporate income tax on any gain. On the other hand, if the shareholders sell the stock, it will owe less tax, but the basis of the assets carries over to the buyer.
Despite this reality, until recently the IRS and the courts had never allowed a reduction in the value of corporate stock for taxes due on an asset sale or corporate liquidation. Two recent cases have allowed such a discount for the first time.
Courts Allow Discounts
In Estate of Artemus Davis, 110 TC 530 (1998), Davis (one of the founders of the Winn-Dixie grocery chain) created a holding company to own some of his publicly traded Winn-Dixie shares and other assets. He did this many years before the transaction in question.
In 1992, Davis gave nearly 26% interests in the holding company to each of his two sons. At that time, the holding company owned $70 million of Winn-Dixie stock and $10 million of other assets.
Davis claimed substantial discounts on the gift tax returns he filed to report the transfers. The discounts were for lack of marketability and minority interest, as well as for the corporate taxes due if the Winn-Dixie stock were to be sold. All of these discounts reduced the value by more than 60% when compared to the value of the holding company's assets.
The Service challenged this valuation, and assessed additional gift taxes of more than $5.2 million. Davis died in 1995; his estate continued to fight the Service over the valuation.
The Tax Court, after considering opinions from three appraisers (hired by the estate and the IRS), held that a discount for taxes was appropriate.
In 1986, Congress had changed the tax law, eliminating the General Utilities doctrine (a way for...