Gift, Estate, & Income Tax Compliance

February 1, 2019

Mercer Capital’s Value Matters® 2019-02

Estate of Powell v. Commissioner

Estate of Nancy H. Powell, Deceased, Jeffrey J. Powell, Executor, Petitioner v. Commissioner of Internal Revenue, Respondent. 148 T.C. No.18  (May 18, 2017)

CASE SUMMARY

  • Nancy Powell died August 15, 2008
  • On August 6, 2008, Jeffrey Powell (Nancy Powell’s son) created a limited partnership, NHP Enterprises LP (“NHP”) and named himself general partner. 
  • Jeffrey then transferred approximately $10 million in cash and securities from his mother’s revocable trust to NHP in exchange for a 99% limited partnership interest. 
  • On August 7, Jeffrey obtained a doctor’s note that allowed him to act as agent under his mother’s durable power of attorney for property due to his mother’s incapacity.  He used the power of attorney to create a charitable lead annuity trust (“CLAT”) and transferred the 99% limited partnership interest to the CLAT.  The CLAT paid the annuity interest to the Nancy H. Powell Foundation for the remainder of his mother’s life.  The CLAT named Jeffrey and his brother as remainder beneficiaries upon his mother’s death. 
  • The power of attorney Jeffrey used contained two significant provisions: 
    • Jeffrey had the power to “[t]o grant, convey, sell, transfer, mortgage deed in trust, pledge and otherwise deal in all property real and personal, which the principal may own.” 
    • The POA also authorized Mr. Powell “[t]o make gifts on the principal’s behalf, including, but not limited to, forgiveness of loans, to a class composed of the principal’s children, any of such children’s issue, or any or all to the full extent of the federal annual gift tax exclusion under Internal Revenue Code Section 2503(b) or any successor statute.”
  • Jeffrey later filed a gift tax return for the transfer to the CLAT. He determined the value of the 99% limited partnership interest to be $7.5 million after a 25% discount for lack of marketability and lack of control. This resulted in a gift to the reminder beneficiaries of just over $1.6 million. The IRS issued deficiency notices for the gift tax return and the estate tax return.

KEY ISSUE

  • Misuse of Powers of Attorney 
    • Here the decedent’s son used a power of attorney that granted him the power to make gifts of up to the $14,000 annual gift exclusion to the principal’s family members to make a gift of $7.5 million to his family and his mother’s private foundation. This misuse of the power of attorney caused the Tax Court to disallow the gift. 

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Mercer Capital to Sponsor ACTEC Florida Fellows Meeting
Mercer Capital to Sponsor ACTEC Florida Fellows Meeting
Mercer Capital is pleased to sponsor ACTEC’s 2026 Florida Fellows Meeting, taking place Wednesday, August 19, 2026, at The Breakers in Palm Beach, Florida. Tim Bronza, CPA, ASA, and Sujan Rajbhandary, CPA, ABV, will represent the firm at the meeting.ACTEC, the American College of Trust and Estate Counsel, is an organization of trust and estate lawyers and law professors in the United States and around the world. Its Fellows are committed to maintaining excellence in the trust and estate legal field and improving the practice of trust and estate law.The 2026 Florida Fellows Meeting will feature an afternoon of educational programming, networking, and discussion during ACTEC’s return to The Breakers. This year’s program includes sessions on trust litigation, single-member LLC planning, and the legal, ethical, and practical challenges attorneys face when counseling clients on disinheritance.Tim Bronza serves as Managing Director of Mercer Capital’s Florida office. He has extensive experience valuing business interests for federal gift, estate, and income tax purposes and leads sophisticated valuation engagements across corporate and fiduciary contexts.Sujan Rajbhandary is a Senior Vice President with Mercer Capital and a member of the firm’s Gift, Estate & Income Tax Group. He has 20 years of experience advising closely held businesses, family-owned enterprises, and public companies on valuation and tax planning matters. He is a regular contributor to Mercer Capital’s Value Matters Newsletter.Mercer Capital regularly works with owners, fiduciaries, and professional advisors on valuation and advisory matters involving trusts, estates, tax planning, transactions, and disputes. The firm is pleased to support educational programs that help professionals navigate complex financial issues in estate and trust matters.Mercer Capital looks forward to connecting with attendees in Palm Beach. To learn more about this year’s conference, visit the Florida Fellows Meeting website: https://events.rdmobile.com/Events/Details/19947
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