Suzanne J. Pierre v. Commissioner

133 T.C. No. 2

• Court: United States Tax Court
• Decided: August 24, 2009
• Docket: 753-07
• Status: Unknown

Opinion

133 T.C. No. 2

UNITED STATES TAX COURT

SUZANNE J. PIERRE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 753-07. Filed August 24, 2009.

P transferred cash and publicly traded securities to LLC, a New York limited liability company, in exchange for a 100-percent interest in LLC. P subsequently made four transfers of her interest in LLC to trusts established for the benefit of her son and granddaughter: P transferred as a gift a 9.5-percent interest in LLC to each trust and then sold a 40.5- percent interest in LLC to each trust in exchange for a promissory note. In valuing the transfers for Federal gift tax purposes, P applied substantial discounts for lack of marketability and control and therefore paid no gift tax on the transfers.

R argues, inter alia, that the transfers should be treated as transfers of the underlying assets of LLC because a single-member limited liability company is a disregarded entity under the “check-the-box” regulations of secs. 301.7701-1 through 301.7701-3, Proced. & Admin. Regs. -2-

Held: For purpose of application of the Federal gift tax, the transfers are to be valued as transfers of interests in LLC, and LLC is not disregarded under the “check-the-box” regulations to treat the transfers as transfers of a proportionate share of assets owned by LLC.

Kathryn Keneally and Meryl G. Finkelstein, for petitioner.

Lydia A. Branche, for respondent.

WELLS, Judge:1 Respondent determined deficiencies of

$1,130,216.11 and $24,969.19 in petitioner’s Federal gift tax and

generation-skipping transfer tax for 2000 and 2001, respectively.

The issue to be decided is whether certain transfers of interests

in a single-member limited liability company (LLC) that is

treated as a disregarded entity pursuant to sections 301.7701-1

through 301.7701-3, Proced. & Admin. Regs.,2 known colloquially

and hereinafter referred to as the check-the-box regulations, are

valued as transfers of proportionate shares of the underlying

assets owned by the LLC or are instead valued as transfers of

1 The Chief Judge reassigned this case for Opinion and decision to Judge Thomas B. Wells from Judge Diane L. Kroupa, who presided over the trial. Judge Kroupa does not disagree with our fact findings as they relate to the legal issue addressed in this Opinion. 2 The check-the-box regulations refer to an entity with a “single owner”. The New York statute that created the LLC in issue refers to owners of LLCs as “members”. See N.Y. Ltd. Liab. Co. Law art. VI (McKinney 2007). For purposes of this Opinion, no difference in meaning is intended by the use of the terms “owner” and “member”. -3-

interests in the LLC, and, therefore, subject to valuation

discounts for lack of marketability and control.3

FINDINGS OF FACT

Some of the facts and certain exhibits have been stipulated

by the parties. The facts stipulated by the parties are

incorporated in this Opinion and are so found. Petitioner

resided in New York at the time she filed the petition.

Petitioner received a $10 million cash gift from a wealthy

friend in 2000. Petitioner wanted to provide for her son Jacques

Despretz (Mr. Despretz) and her granddaughter Kati Despretz (Ms.

Despretz) but was concerned about keeping her family’s wealth

intact. Richard Mesirow (Mr. Mesirow) helped petitioner develop

a plan to achieve her goals.

On July 13, 2000, petitioner organized the single-member

Pierre Family, LLC (Pierre LLC). Petitioner respected the

formalities of formation in the State of New York, and Pierre LLC

was validly formed under New York law. Petitioner did not elect

to treat Pierre LLC as a corporation for Federal tax purposes by

filing a Form 8832, Entity Classification Election, and therefore

filed no corporate return for Pierre LLC.

3 In this Opinion, we decide only the legal issue set forth above. The following issues were argued by the parties but will be addressed in a separate opinion: (1) Whether the step transaction doctrine applies to collapse the separate transfers to the trusts and (2) the appropriate valuation discount, if any. -4-

On July 24, 2000, petitioner created the Jacques Despretz

2000 Trust and the Kati Despretz 2000 Trust (sometimes

collectively referred to as the trusts).

On September 15, 2000, petitioner transferred $4.25 million

in cash and marketable securities to Pierre LLC.

On September 27, 2000, 12 days after funding Pierre LLC,

petitioner transferred her entire interest in Pierre LLC to the

trusts. She first gave a 9.5-percent membership interest in

Pierre LLC to each of the trusts to use a portion of her then-

available credit amount and her GST exemption. She then sold

each of the trusts a 40.5-percent membership interest in exchange

for a secured promissory note. The notes each had a face amount

of $1,092,133. Petitioner set this amount using the appraisal by

James F. Shuey of James F. Shuey & Associates that valued a 1-

percent nonmanaging interest in Pierre LLC at $26,965. Mr. Shuey

determined the value of a 1-percent interest by applying a 30-

percent discount to the value of Pierre LLC’s underlying assets.

However, petitioner admits that because of an error in valuing

the underlying assets, a discount of 36.55 percent was used in

valuing the LLC interest for gift tax purposes.

Petitioner filed a Form 709, United States Gift (and

Generation-Skipping Transfer) Tax Return, for 2000 and reported

the gift to each trust of a 9.5-percent Pierre LLC interest. She

reported the value of the taxable gift to each trust as $256,168 -5-

(determined by multiplying a 9.5-percent interest times the

$26,965 appraised value of a 1-percent nonmanaging interest in

Pierre LLC).

Respondent examined petitioner’s gift tax return and issued

a deficiency notice for 2000 and 2001. Respondent determined

that petitioner’s gift transfers of the 9.5-percent Pierre LLC

interests to the trusts are properly treated as gifts of

proportionate shares of Pierre LLC assets valued at $403,750

each, not as transfers of interests in Pierre LLC. Respondent

further determined that petitioner made gifts to the trusts of

the 40.5-percent interests in Pierre LLC to the extent that the

value of 40.5 percent of the underlying assets of Pierre LLC

exceeded the value of the promissory notes from the trusts.

Respondent valued each of these transfers at $629,117 after

taking into account the value of the promissory notes.

OPINION

I. The Parties’ Contentions

The parties do not dispute that Pierre LLC was a validly

formed LLC pursuant to New York State law, which recognized

Pierre LLC as an entity separate from petitioner under New York

State law.4 They also agree that, at the time of the transfers,

4 Although respondent argues that the step transaction doctrine should apply to the gift and sale transfers in issue, respondent explicitly limits the proposed application of the step transaction doctrine to the events of Sept. 27, 2000, and thus (continued...) -6-

Pierre LLC is to be disregarded as an entity separate from its

owner “for federal tax purposes” under the check-the-box

regulations. The parties disagree, however, about whether the

check-the-box regulations require that Pierre LLC be disregarded

for Federal gift tax valuation purposes.

Respondent argues that, because Pierre LLC is a single-

member LLC that is treated as a disregarded entity under the

check-the-box regulations, petitioner’s transfers of interests in

Pierre LLC should be “treated” as transfers of cash and

marketable securities, i.e., proportionate shares of Pierre LLC’s

assets, rather than as transfers of interests in Pierre LLC, for

purposes of valuing the transfers to determine Federal gift tax

liability. Accordingly, respondent contends that petitioner made

gifts equal to the total value of the assets of Pierre LLC less

the value of the promissory notes she received from the trusts.5

Petitioner argues that, for Federal gift tax valuation

purposes, State law, not Federal tax law, determines the nature

of a taxpayer’s interest in property transferred and the legal

rights inherent in that property interest. Accordingly,

4 (...continued) does not advocate applying the step transaction doctrine to disregard Pierre LLC. As noted above, the step transaction issues will be addressed in a separate opinion. 5 Respondent argues that the four transfers in issue should be collapsed into one transfer pursuant to the step transaction doctrine. As noted above, this issue will be addressed in a separate opinion. -7-

petitioner contends that we must look to State law to determine

what property interest was transferred and then value the

property interest actually transferred to apply the Federal gift

tax provisions to that value to ascertain gift tax liability.

Petitioner argues that, under New York State law, a membership

interest in an LLC is personal property, and a member has no

interest in specific property of the LLC. N.Y. Ltd. Liab. Co.

Law sec. 601 (McKinney 2007). Accordingly, petitioner argues

that she properly valued the transferred interests in Pierre LLC

for purposes of valuing her transfers to the trusts and that she

properly applied lack of control and lack of marketability

discounts in valuing6 the transferred LLC interests.

Petitioner also contends that respondent bears the burden of

proof on all fact issues because she has met the requirements of

section 7491.7 As the only issue decided in this Opinion is

decided as a matter of law, we need not decide in this Opinion

which party bears the burden of proof.8

6 As noted above, issues of valuation will be addressed in a separate opinion. 7 Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue. 8 The issues regarding which party bears the burden of proof will be addressed, if necessary, in a separate opinion. -8-

II. The Historical Gift Tax Valuation Regime

We begin with a brief summary of the longstanding statutes,

regulations, and caselaw that constitute the Federal gift tax

valuation regime. Section 2501(a) imposes a tax on the transfer

of property by gift. The amount of a gift of property is the

value of the property at the date of the gift. Sec. 2512(a). It

is the value of the property passing from the donor that

determines the amount of the gift. Sec. 25.2511-2(a), Gift Tax

Regs. “The value of the property is the price at which such

property would 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.” Sec.

25.2512-1, Gift Tax Regs. Where property is transferred for less

than adequate and full consideration in money or money’s worth,

the amount of the gift is the amount by which the value of the

property transferred exceeds the value of the consideration

received. Sec. 2512(b).

In addition to the statutes and regulations, there is

significant Supreme Court precedent interpreting them and guiding

the implementation of the Federal gift and estate tax.9 The

Supreme Court, in Bromley v. McCaughn, 280 U.S. 124 (1929), held

9 The Federal estate tax is interpreted in pari materia with the Federal gift tax. See Estate of Sanford v. Commissioner, 308 U.S. 39, 44 (1939) (citing Burnet v. Guggenheim, 288 U.S. 280, 286 (1933)). -9-

that the imposition of a gift tax is within the constitutional

authority of Congress. The holding in Bromley turned on a

finding that the gift tax is an excise tax rather than a direct

tax. As the Supreme Court stated in Bromley v. McCaughn, supra

at 135-136:

The general power to “lay and collect taxes, duties, imposts, and excises” conferred by Article I, § 8 of the Constitution, and required by that section to be uniform throughout the United States, is limited by § 2 of the same article, which requires “direct” taxes to be apportioned, and section 9, which provides that “no capitation or other direct tax shall be laid unless in proportion to the census” directed by the Constitution to be taken. * * *

* * * a tax imposed upon a particular use of property or the exercise of a single power over property incidental to ownership, is an excise which need not be apportioned * * *

* * * [The gift tax] is a tax laid only upon the exercise of a single one of those powers incident to ownership, the power to give the property owned to another. * * *

The Supreme Court has also provided guidance as to the

appropriate roles of Federal and State law in the valuation of

transfers. A fundamental premise of transfer taxation is that

State law creates property rights and interests, and Federal tax

law then defines the tax treatment of those property rights. See

Morgan v. Commissioner, 309 U.S. 78 (1940). It is well

established that the Internal Revenue Code creates “‘no property

rights but merely attaches consequences, federally defined, to

rights created under state law.’” United States v. Nat. Bank of -10-

Commerce, 472 U.S. 713, 722 (1985) (quoting United States v.

Bess, 357 U.S. 51, 55 (1958)). In Morgan v. Commissioner, supra

at 80-81, the Supreme Court stated:

State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed. Our duty is to ascertain the meaning of the words used to specify the thing taxed. If it is found in a given case that an interest or right created by local law was the object intended to be taxed, the federal law must prevail no matter what name is given to the interest or right by state law.

In Morgan, the Court disregarded the State law

classification of a power of appointment as “special” where the

rights associated with that power of appointment under State law

(i.e., the power to appoint to anyone, including the holder’s

estate and creditors) were properly classified under Federal law

as a general power of appointment. As is standard in Federal

estate and gift tax cases, the interest was created by State law,

respected by the Court, and taxed pursuant to the Federal estate

and gift tax provisions. In short, the Court ignored the label,

not the interest created, and determined whether the interest

fell within the Federal statute. This Court, in Knight v.

Commissioner, 115 T.C. 506 (2000), followed the Supreme Court

precedent discussed above. As we said in Knight v. Commissioner,

supra at 513 (citing United States v. Nat. Bank of Commerce,

supra at 722, United States v. Rodgers, 461 U.S. 677, 683 (1983),

and Aquilino v. United States, 363 U.S. 509, 513 (1960)): “State -11-

law determines the nature of property rights, and Federal law

determines the appropriate tax treatment of those rights.”

Pursuant to New York law petitioner did not have a property

interest in the underlying assets of Pierre LLC, which is

recognized under New York law as an entity separate and apart

from its members. N.Y. Ltd. Liab. Co. Law sec. 601.

Accordingly, there was no State law “legal interest or right” in

those assets for Federal law to designate as taxable, and Federal

law could not create a property right in those assets.

Consequently, pursuant to the historical Federal gift tax

valuation regime, petitioner’s gift tax liability is determined

by the value of the transferred interests in Pierre LLC, not by a

hypothetical transfer of the underlying assets of Pierre LLC.

III. The Check-the-Box Regulations and Single-Member LLCs

We next turn to the question of whether the check-the-box

regulations alter the historical Federal gift tax valuation

regime discussed above. Pursuant to the Internal Revenue Code,

the income of a C corporation is subject to double taxation (once

at the corporate level and once at the shareholder level) while

the income of partnerships and sole proprietorships is taxed only

once (at the individual taxpayer level). See Littriello v.

United States, 484 F.3d 372, 375 (6th Cir. 2007). An LLC is a

relatively new business structure, created by State law, that has

some features of a corporation (i.e., limited personal liability) -12-

and some features of a partnership (i.e., management flexibility

and pass-through taxation). McNamee v. Dept. of the Treasury,

488 F.3d 100, 107 (2d Cir. 2007). Section 7701, underpinning the

check-the-box regulations, defines entities for purposes of the

Internal Revenue Code “where not otherwise distinctly expressed

or manifestly incompatible with the intent thereof”. Section

7701 does not make it clear whether an LLC falls within the

definition of a partnership, a corporation, or a disregarded

entity taxed as a sole proprietorship.

Before the promulgation of the check-the-box regulations,

the proliferation of revenue rulings, revenue procedures, and

letter rulings relating to the classification of LLCs and

partnerships for Federal tax purposes made the existing

regulations “unnecessarily cumbersome to administer”. Dover

Corp. & Subs. v. Commissioner, 122 T.C. 324, 330 (2004). Those

existing regulations, known as the “Kintner Regulations”, had

been in place since 1960.10 In McNamee v. Dept. of the Treasury,

10 In Richlands Med. Association v. Commissioner, T.C. Memo. 1990-660, affd. without published opinion 953 F.2d 639 (4th Cir. 1992), we summarized the “Kintner Regulations” as follows:

The Kintner Regulations * * * set forth six characteristics ordinarily found in a corporation which distinguish it from other organizations. Those characteristics are (1) associates, (2) an objective to carry on business and divide the gains therefrom, (3) continuity of life, (4) centralization of management, (5) limited liability, and (6) free transferability of interests. The regulations go on to note that, in some (continued...) -13-

supra at 108-109, the Court of Appeals for the Second Circuit,

the court that would be the venue for any appeal of the instant

case absent stipulation to the contrary, stated:

The Kintner regulations had been adequate during the first several decades after their adoption. But, as explained in the 1996 proposal for their amendment, the Kintner regulations were complicated to apply, especially in light of the fact that

many states ha[d] revised their statutes to provide that partnerships and other unincorporated organizations may possess characteristics that traditionally have been associated with corporations, thereby narrowing considerably the traditional distinctions between corporations and partnerships under local law.

Simplification of Entity Classification Rules, 61 Fed. Reg. 21989, 21989-90 (proposed May 13, 1996). * * *

To simplify the classification of hybrid entities, such as

LLCs, the check-the-box regulations were promulgated. Section

301.7701-1(a)(1), Proced. & Admin. Regs., provides:

10 (...continued) cases, other factors may be found which may be significant in classifying an organization.

* * * Although the regulations cite the Supreme Court decision in Morrissey v. Commissioner, 296 U.S. 344 (1935), for the proposition that corporate status will exist if an organization “more nearly resembles” a corporation than a partnership or trust, the regulations adopt a mechanical test for determination of corporate status. Under that test, each of the four characteristics “apparently bears equal weight in the final balancing,” Larson v. Commissioner, * * * [66 T.C.] at 172, and an entity will not be taxed as a corporation unless it possesses more corporate than noncorporate characteristics. Section 301.7701- 2(a)(3), Proced. and Admin. Regs.; Larson v. Commissioner, supra at 185. * * * -14-

Classification of organizations for federal tax purposes.--(a) * * * --(1) * * * The Internal Revenue Code prescribes the classification of various organizations for federal tax purposes. Whether an organization is an entity separate from its owners for federal tax purposes is a matter of federal tax law and does not depend on whether the organization is recognized as an entity under local law. [Emphasis added].

Section 301.7701-3(a) and (b), Proced. & Admin. Regs., provides:

Classification of certain business entities.--(a) * * * A business entity * * * can elect its classification for federal tax purposes as provided in this section. An eligible entity * * * with a single owner can elect to be classified as an association or to be disregarded as an entity separate from its owner. Paragraph (b) of this section provides a default classification for an eligible entity that does not make an election. * * *

(b) Classification of eligible entities that do not file an election.--(1) * * * Except as provided in paragraph (b)(3) of this section, unless the entity elects otherwise, a domestic eligible entity is--

* * * * * * *

(ii) Disregarded as an entity separate from its owner if it has a single owner.

[Emphasis added.]

Accordingly, the default classification for an entity with a

single owner is that the entity is disregarded as an entity

separate from its owner. Sec. 301.7701-3(b)(1)(ii), Proced. &

Admin. Regs. There is no question that the phrase “for federal

tax purposes” was intended to cover the classification of an

entity for Federal tax purposes, as the check-the-box regulations

were designed to avoid many difficult problems largely associated

with the classification of an entity as either a partnership or a -15-

corporation; i.e., whether it should be taxed as a pass-through

entity or as a separately taxed entity. Simplification of Entity

Classification Rules, 61 Fed. Reg. 21989-21990 (May 13, 1996).

The question before us now is whether the check-the-box

regulations require us to disregard a single-member LLC, validly

formed under State law, in deciding how to value and tax a

donor’s transfer of an ownership interest in the LLC under the

Federal gift tax regime described above.

IV. Whether the Check-the-Box Regulations Alter the Historical Federal Gift Tax Valuation Regime

Respondent points to a number of cases as support for the

proposition that, pursuant to the check-the-box regulations,

valid State law restrictions must be ignored for the purpose of

determining the interest being transferred under the Federal

estate and gift tax regime. Respondent cites McNamee v. Dept. of

the Treasury, 488 F.3d 100 (2d Cir. 2007), a case decided by the

Court of Appeals for the Second Circuit. However, respondent’s

reliance on McNamee is misplaced. In McNamee, the Court of

Appeals held that State law cannot abrogate the Federal tax

obligations of the owner of a disregarded entity under the check-

the-box regulations. Id. at 111 (citing Littriello v. United

States, 484 F.3d at 379). In issue in McNamee was the

requirement to pay withholding taxes for a single-member LLC’s

employees. The Court of Appeals held that the owner of the

single-member LLC there in issue was liable for the disregarded -16-

entity’s taxes; it did not hold that an entity is to be

disregarded in deciding what property interests are transferred

under State law for Federal gift tax valuation purposes when an

owner of an entity disregarded under the check-the-box

regulations transfers an interest in that entity.11

Similarly, respondent’s reliance on Shepherd v.

Commissioner, 115 T.C. 376 (2000), affd. 283 F.3d 1258 (11th Cir.

2002), and Senda v. Commissioner, 433 F.3d 1044 (8th Cir. 2006),

affg. T.C. Memo. 2004-160, is not convincing, as the facts of

those cases differ significantly from the facts of the instant

case. In Shepherd v. Commissioner, supra at 384, we looked to

applicable State law to decide what property rights were

conveyed. In Shepherd, the property the taxpayer possessed and

transferred was his interests in leased land and bank stock. Id.

at 385. Because the creation of the taxpayer’s sons’ partnership

interests preceded the completion of the gift to the partnership,

we found that the taxpayer made indirect gifts to his sons of his

11 For the same reasons, Littriello v. United States, 484 F.3d 372 (6th Cir. 2007), and Med. Practice Solutions, LLC v. Commissioner, 132 T.C. __ (Mar. 31, 2009) (an Opinion of this Court following McNamee v. Dept. of the Treasury, 488 F.3d 100 (2d Cir. 2007)), are not controlling for the purpose of determining what interest is being transferred under the Federal gift tax valuation regime. Both of these cases, like McNamee, involve the classification of a single-member LLC (i.e., whether it is a pass-through entity or a separately taxed entity) for purposes of liability for employment taxes. Neither case addresses the valuation of transferred interests in a single- member LLC for purposes of Federal gift tax valuation. -17-

interests in the land and bank stock. Id. at 389. The Court of

Appeals for the Eleventh Circuit, in its opinion affirming

Shepherd, highlighted the distinction between the facts of

Shepherd and a hypothetical set of facts (more similar to the

facts under consideration in the the instant case) when it noted

that

Thus, instead of completing a gift of land to a preexisting partnership in which the sons were not partners and then establishing the partnership interests of his sons (which would result in a gift of a partnership interest), Shepherd created a partnership in which his sons held established shares and then gave the partnership a taxable gift of land (making it an indirect gift of land to his sons).

Shepherd v. Commissioner, 283 F.3d at 1261 (fn. ref. omitted).

In the instant case, petitioner completed a gift of cash and

securities to Pierre LLC at a time when the trusts were not

members of Pierre LLC and then later transferred interests in

Pierre LLC to the trusts, which established the interests of the

trusts in Pierre LLC.12 Accordingly, Shepherd is consistent with

the requirement that State law determines the interest being

12 Petitioner contributed the stock and securities to Pierre LLC approximately 12 days before she transferred the Pierre LLC interests to the trusts. In Holman v. Commissioner, 130 T.C. 170 (2008), we found that the indirect gift analysis of Shepherd v. Commissioner, 115 T.C. 376 (2000), affd. 283 F.3d 1258 (11th Cir. 2002), and Senda v. Commissioner, T.C. Memo. 2004-160, affd. by 433 F.3d 1044 (8th Cir. 2006), did not apply where assets were transferred to a partnership 5 days before the gifts of the partnership interests. -18-

transferred. In the instant case, as discussed above, pursuant

to New York law, petitioner transferred interests in Pierre LLC.

Senda v. Commissioner, supra, is also distinguishable. In

Senda, the taxpayers were unable to establish whether they had

transferred partnership interests to their children before or

after they contributed stock to the partnership. Citing Shepherd

v. Commissioner, supra, the Court of Appeals for the Eighth

Circuit noted that the sequence was critical “because a

contribution of stock after the transfer of partnership interests

is an indirect gift”. Senda v. Commissioner, supra at 1046.

Both Shepherd and Senda stand for the proposition that a

transfer of property to a partnership for less than full and

adequate consideration may represent an indirect gift to the

other partners. In the instant case, petitioner contributed the

cash and securities to Pierre LLC before transfers to the trusts

were made and the trusts became members of Pierre LLC.

Consequently, Shepherd and Senda are not controlling.

Petitioner relies heavily on Estate of Mirowski v.

Commissioner, T.C. Memo. 2008-74. We do not find Estate of

Mirowski to be controlling because the Commissioner did not rely

on the check-the-box regulations with respect to the transfer of

the LLC interests there in issue. However, we do note that in

Estate of Mirowski we refused to adopt an interpretation that

“reads out of section 2036(a) in the case of any single-member -19-

LLC the exception for a bona fide sale * * * that Congress

expressly prescribed when it enacted that statute.” If

respondent’s interpretation were to prevail in the instant case,

such an interpretation could create a similar result.13

The multistep process of determining the nature and amount

of a gift and the resulting gift tax under the Federal gift tax

provisions described above, i.e., (1) the determination under

State law of the property interest that the donor transferred,

(2) the determination of the fair market value of the transferred

property interest and the amount of the transfer to be taxed, and

(3) the calculation of the Federal gift tax due on the transfer,

is longstanding and well established. Neither the check-the-box

regulations nor the cases cited by respondent support or compel a

conclusion that the existence of an entity validly formed under

applicable State law must be ignored in determining how the

transfer of a property interest in that entity is taxed under

Federal gift tax provisions.

While we accept that the check-the-box regulations govern

how a single-member LLC will be taxed for Federal tax purposes,

i.e., as an association taxed as a corporation or as a

disregarded entity, we do not agree that the check-the-box

13 As noted above, see supra note 9, the Federal estate tax must be interpreted in pari materia with the Federal gift tax. -20-

regulations apply to disregard the LLC in determining how a donor

must be taxed under the Federal gift tax provisions on a transfer

of an ownership interest in the LLC. If the check-the-box

regulations are interpreted and applied as respondent contends,

they go far beyond classifying the LLC for tax purposes. The

regulations would require that Federal law, not State law, apply

to define the property rights and interests transferred by a

donor for valuation purposes under the Federal gift tax regime.

We do not accept that the check-the-box regulations apply to

define the property interest that is transferred for such

purposes. The question before us (i.e., how a transfer of an

ownership interest in a validly formed LLC should be valued under

the Federal gift tax provisions) is not the question addressed by

the check-the-box regulations (i.e., whether an LLC should be

taxed as a separate entity or disregarded so that the tax on its

operations is borne by its owner). To conclude that because an

entity elected the classification rules set forth in the check-

the-box regulations, the long-established Federal gift tax

valuation regime is overturned as to single-member LLCs would be

“manifestly incompatible” with the Federal estate and gift tax

statutes as interpreted by the Supreme Court. See sec. 7701.

We note that Congress has enacted provisions of the Internal

Revenue Code, see secs. 2701, 2703, that disregard valid State -21-

law restrictions in valuing transfers. Where Congress has

determined that the “willing buyer, willing seller” and other

valuation rules are inadequate, it expressly has provided

exceptions to address valuation abuses. See chapter 14 of the

Internal Revenue Code, sections 2701 through 2704, which

specifically are designed to override the standard “willing

buyer, willing seller” assumptions in certain transactions

involving family members.

By contrast, Congress has not acted to eliminate entity-

related discounts in the case of LLCs or other entities generally

or in the case of a single-member LLC specifically. In the

absence of such explicit congressional action and in the light of

the prohibition in section 7701, the Commissioner cannot by

regulation overrule the historical Federal gift tax valuation

regime contained in the Internal Revenue Code and substantial and

well-established precedent in the Supreme Court, the Courts of

Appeals, and this Court, and we reject respondent’s position in

the instant case advocating an interpretation that would do so.

Accordingly, we hold that petitioner’s transfers to the trusts

should be valued for Federal gift tax purposes as transfers of

interests in Pierre LLC and not as transfers of a proportionate

share of the underlying assets of Pierre LLC. -22-

To reflect the foregoing,

An appropriate order will

be issued.

Reviewed by the Court.

COHEN, FOLEY, VASQUEZ, THORNTON, MARVEL, GOEKE, WHERRY, GUSTAFSON, and MORRISON, JJ., agree with this majority opinion. -23-

COHEN, Judge, concurring: As the author of the Opinion for

the Court in Med. Practice Solutions, LLC v. Commissioner, 132

T.C. __ (2009), I write to explain why my agreement with the

majority opinion here is consistent with the conclusion in that

case, which followed McNamee v. Dept. of the Treasury, 488 F.3d

100 (2d Cir. 2007). Briefly, I agree with the majority that

McNamee and Med. Practice Solutions, LLC are classification cases

that appropriately applied the check-the-box regulations of

section 301.7701-3(b)(1)(ii), Proced. & Admin. Regs., in deciding

whether the single owner/member of an LLC or the LLC was liable

for employment taxes on the wages of the employees of the business

in question. In contrast, this case involves the issue of the

valuation for transfer tax purposes of certain interests in a

single-owner LLC that that owner transferred. See majority op. p.

15. (McNamee and Med. Practice Solutions, LLC, along with

Littriello v. United States, 484 F.3d 372 (6th Cir. 2007), and

others cited in Med. Practice Solutions, LLC, will be referred to

as the employment tax cases).

The check-the-box regulations might be applied to determine

for gift tax purposes whether the owner of a single-member LLC or

the LLC is the transferor of the assets used in the business or

the activities for which the LLC was formed. In that event, the

determination would parallel the determination in the employment

tax cases as to who is liable for the Federal tax in dispute and -24-

would consider whether the LLC should be “disregarded” under those

regulations. The only transfer at issue here, however, is the

transfer by the owner of the LLC of certain interests that she

held in that LLC.

Transfer tax disputes, including this one, more frequently

involve differences over the fair market value of property, and

fair market value is determined by applying the “willing buyer,

willing seller” standard to the property transferred. See

majority op. pp. 8-11. Where the property transferred is an

interest in a single-member LLC that is validly created and

recognized under State law, the willing buyer cannot be expected

to disregard that LLC. See, e.g., Knight v. Commissioner, 115

T.C. 506, 514 (2000) (“We do not disregard * * * [a] partnership

because we have no reason to conclude from this record that a

hypothetical buyer or seller would disregard it.”).

Of course, Congress has the ability to, and on occasion has

opted to, modify the willing buyer, willing seller standard. See,

e.g., secs. 2032A, 2701, 2702, 2703, 2704; Holman v. Commissioner,

130 T.C. 170, 191 (2008) (applying section 2703 to disregard

restrictions in a partnership agreement). In Kerr v.

Commissioner, 113 T.C. 449, 470-474 (1999), affd. 292 F.3d 490

(5th Cir. 2002), we explained that the special valuation rules

were a targeted substitute for the complexity, breadth, and

vagueness of prior section 2036(c). We reaffirmed the willing -25-

buyer, willing seller standard, Kerr v. Commissioner, supra at

469, and concluded that the special provision in section 2704(b)

did not apply to disregard the partnership restrictions in issue,

id. at 473; see also Estate of Strangi v. Commissioner, 115 T.C.

478, 487-489 (2000), affd. on this issue, revd. and remanded on

other grounds 293 F.3d 279 (5th Cir. 2002).

The majority opinion, majority op. pp. 13-15, discusses the

adoption of the check-the-box regulations as a targeted substitute

for the complexity of the Kintner regulations in classifying

hybrid entities and thereby determining the tax consequences to

those entities and their owners of the business or the activities

for which those entities were formed. A targeted solution to a

particular problem should not be distorted to achieve a

comprehensive overhaul of a well-established body of law.

If the regulations expressly provided that single-owner LLCs

would be disregarded in determining the identity of the property

transferred and the value of that transferred property, we could

debate the validity of the regulations and the degree of deference

to be given to various expressions of an agency’s position. Here

we are dealing only with respondent’s litigating position. The

majority does not question the validity of the check-the-box

regulations. The majority holds only that those regulations do

not control the valuation issue in this case. See majority op.

pp. 19-20. -26-

The argument that the majority opinion disregards the plain

meaning of the phrase “for federal tax purposes” in section

301.7701-3(a), Proced. & Admin. Regs., is unpersuasive. The plain

meaning of the text of a regulation is the starting point for

determining the meaning of that regulation. See Walker Stone Co.

v. Secy. of Labor, 156 F.3d 1076, 1080 (10th Cir. 1998) (“When the

meaning of a regulatory provision is clear on its face, the

regulation must be enforced in accordance with its plain

meaning.”). We see here, however, (1) ambiguity in the specific

phrase “federal tax purposes” and (2) ambiguity in the term

“disregarded”, both of which make plain meaning elusive.

First, the regulation does not provide that an entity will be

disregarded “for all Federal tax purposes”. Instead, the

regulation implements a statute that, by its terms, applies except

where “manifestly incompatible with the intent” of the Internal

Revenue Code. Sec. 7701(a). The language of the regulation

requires a determination of which “federal tax purposes” are

implicated and whether a given purpose might be manifestly

incompatible with the Internal Revenue Code.

Second, the regulation states that an entity will be

“disregarded as an entity separate from its owner”. Sec.

301.7701-3(a) and (b)(1)(ii), Proced. & Admin. Regs. (emphasis

added). That sentence might mean that a disregarded entity is

exempt from tax, that its transactions are disregarded and -27-

therefore not reported for tax purposes, or that transfers of

interests in the entity are disregarded for Federal gift tax

purposes and not taxed. While none of those meanings is likely,

the ambiguity is inherent. Of course, the regulation must be

interpreted in the light of the other principles of the Internal

Revenue Code. Those other principles include the valuation

principles discussed in the majority opinion. Respondent’s

proposed application of the regulation is manifestly incompatible

with those principles.

The majority’s approach is consistent with the principle that

a regulation will be interpreted to avoid conflict with a statute.

See LaVallee Northside Civic Association v. V.I. Coastal Zone

Mgmt. Commn., 866 F.2d 616, 623 (3d Cir. 1989); see also Smith v.

Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994); Phillips Petroleum Co.

v. Commissioner, 97 T.C. 30, 35 (1991), affd. without published

opinion 70 F.3d 1282 (10th Cir. 1995). It is also consistent with

the express limitation of section 7701(a) on the scope of

regulations that define terms. See majority op. p. 21. The

majority’s interpretation of the scope of the check-the-box

regulations harmonizes the classification purpose of those

regulations with the statutory rules and case precedents that

firmly establish the meaning of fair market value in transfer tax

cases and the willing buyer, willing seller standard as the

hallmark of that meaning. -28-

Some final words about deference. As the majority opinion

indicates, majority op. p. 12, section 7701(a) precludes the

application of the definitions of the terms in that section where

they are “manifestly incompatible with the intent” of the Internal

Revenue Code. This case does not involve the question in Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984), of deference to the Commissioner’s interpretation of a

statute that the Commissioner is charged with administering.

Nothing in the check-the-box regulations or in the cases cited by

respondent persuades us that those regulations require us to

disregard a single-owner LLC where, as is the case here, to do so

would be “manifestly incompatible” with the intent of other

provisions of the Internal Revenue Code.

Judge Halpern in his dissenting opinion does not address the

majority’s conclusion that respondent’s interpretation of the

regulation is manifestly incompatible with other provisions of the

Code. He asserts that “respondent’s position in this case * * *

is consistent with the Commissioner’s administrative position for

at least 10 years”. Dissenting op. p. 35. He cites Rev. Rul. 99-

5, 1999-1 C.B. 434, which describes the Federal income tax

consequences of a transfer under sections 721-723, 1001(a), and

1223. The ruling and the sections cited do not deal with transfer

taxes generally or gift tax specifically. Moreover, the Internal

Revenue Service has reversed itself with respect to application of -29-

the check-the-box regulations in employment tax situations and has

adopted new rules as of January 1, 2009. See McNamee v. Dept. of

the Treasury, 488 F.3d at 109; Littriello v. United States, 484

F.3d 372 (6th Cir. 2007); Med. Practice Solutions, LLC v.

Commissioner, 132 T.C. at __ (slip op. at 7).

We have never accorded deference to the Commissioner’s

litigating position, as contrasted to (1) contemporaneous

expressions of intent when the regulations were adopted and (2)

consistent administrative interpretations before the litigation.

See Gen. Dynamics Corp. & Subs. v. Commissioner, 108 T.C. 107,

120-121 (1997). Respondent does not argue here that respondent’s

interpretation of the regulation is entitled to deference.

Neither the cases--Oteze Fowlkes v. Adamec, 432 F.3d 90, 97 (2d

Cir. 2005), United States v. Miller, 303 F.2d 703, 707 (9th Cir.

1962), and Lantz v. Commissioner, 132 T.C. ___, ___ n.10 (2009)

(slip op. at 23-24)--nor the so-called hornbook law on which Judge

Halpern relies in his dissenting opinion requires us to give

deference to respondent’s litigating position that the check-the-

box regulations apply in this case. We have no reason to believe

that respondent’s litigating position here is an interpretation of

those regulations that reflects “the * * * fair and considered

judgment [of the Secretary of the Treasury] on the matter in

question.” Auer v. Robbins, 519 U.S. 452, 462 (1997) (where the

Supreme Court of the United States ordered the Secretary of Labor -30-

to file an amicus brief in a case between private litigants

involving the interpretation of a regulation that the Secretary

had promulgated, the Supreme Court accepted the Secretary’s

interpretation since in the circumstances of the case “There is

simply no reason to suspect that the interpretation does not

reflect the agency’s fair and considered judgment on the matter in

question.”). Moreover, Judge Halpern’s reliance on a footnote in

Lantz v. Commissioner, supra, is misplaced. We there concluded

that a taxpayer’s pursuit of a particular type of relief would be

fruitless in the face of the Commissioner’s position, the validity

of which had not been challenged. Neither case cited in that

footnote adopts the litigating position of the party as distinct

from preexistent and consistent administrative interpretations.

See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945);

Phillips Petroleum Co. v. Commissioner, 101 T.C. 78, 97 (1993),

affd. without published opinion 70 F.3d 1282 (10th Cir. 1995).

WELLS, FOLEY, VASQUEZ, THORNTON, MARVEL, GOEKE, WHERRY, and GUSTAFSON, JJ., agree with this concurring opinion. -31-

HALPERN, J., dissenting:

I. Introduction

We here face a task common in courts reviewing the actions of

an administrative agency; i.e., we must construe an agency’s

statute and regulations and consider the agency’s interpretation

of those authorities. I agree with neither the approach the

majority takes nor the conclusion it reaches. I agree with much

of what Judge Kroupa writes but wish to emphasize how my approach

differs from that of the majority.

II. The Language of the Regulation

That regulations, like statutes, are interpreted pursuant to

canons of construction is a basic principle of regulatory

interpretation. E.g., Black & Decker Corp. v. Commissioner, 986

F.2d 60, 65 (4th Cir. 1993), affg. T.C. Memo. 1991-557. In every

case involving questions of statutory or regulatory

interpretation, the starting point is the language itself. E.g.,

Bd. of Educ. v. Harris, 622 F.2d 599, 608 (2d Cir. 1979) (quoting

Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330

(1978)). The regulations we here construe are sections 301.7701-1

through -3, Proced. & Admin. Regs. (the so-called check-the-box

regulations). We are particularly concerned with the language in

section 301.7701-2(a), Proced. & Admin. Regs., describing what

happens when a business entity with only one owner is disregarded

as an entity separate from that owner; viz, “its activities are -32-

treated in the same manner as a sole proprietorship, branch, or

division of the owner.” Given that Pierre LLC’s owner,

petitioner, is an individual, Pierre LLC’s activities are treated

in the same manner as those of a sole proprietorship. See id.

Missing from the instruction (sometimes, the activities

instruction), however, is its scope. Ostensibly, section

301.7701-1(a)(1), Proced. & Admin. Regs., provides that scope,

stating that the activities instruction applies for “federal tax

purposes”.

Section 2501(a) imposes a tax on the transfer of property by

gift. The tax is an excise tax imposed on the value of the

property transferred. See id.; Dickman v. Commissioner, 465 U.S.

330, 340 (1984) (“The gift tax is an excise tax on transfers of

property”.). Section 2512(a) provides that the amount of a gift

of property is the value of the property on the date of the gift.

Respondent argues that, because petitioner elected to treat Pierre

LLC as a disregarded entity, petitioner is properly “treated as

transferring cash and marketable securities, as opposed to Pierre

LLC interests, for federal gift tax purposes.” Petitioner

responds: “[T]he issue is the gift tax treatment of transfers of

interests in an LLC”, “not the imposition of a tax due as a result

of the activities of a single-member LLC.” In effect, petitioner

argues that the activities instruction is irrelevant to any

inquiry concerning her transfers of interests in the LLC, since -33-

that inquiry concerns her own activities and not her LLC’s

activities.

Petitioner’s position bespeaks a distinction between a sole

proprietor and her business that the activities instruction will

not bear. A sole proprietorship is generally understood to have

no legal identity apart from the proprietor. 18 C.J.S.,

Corporations, sec. 4 (2007) (“A sole proprietorship has no

separate legal existence or identity apart from the sole

proprietor.”). Judge Richard A. Posner applied that rule of unity

nicely in Smart v. Intl. Bhd. of Elec. Workers, Local 702, 315

F.3d 721, 723 (7th Cir. 2002): “Two plaintiffs are listed, but

one is a sole proprietorship and the other the proprietor, so they

are one, not two, in the eyes of the law * * *, and the one is the

proprietor * * * not the proprietorship.” I would read the

activities instruction as plainly saying that Pierre LLC and

petitioner constitute only one actor (i.e., petitioner) for

Federal tax purposes (which, of course, encompass the Federal gift

tax), so that any gift by petitioner of an interest in Pierre LLC

is, as respondent argues, a gift of an interest in that LLC’s cash

and marketable securities.1 Others may find the activities

1 Treating the transfer of an interest in a single-member disregarded entity as a transfer of an interest in the entity’s assets is in no way inconsistent with applying the “willing buyer, willing seller” standard for valuation purposes, see sec. 25.2512-1, Gift Tax Regs., as Judge Cohen suggests in her concurring opinion, p. 24. The willing buyer and willing seller (continued...) -34-

instruction to be ambiguous, so I will proceed as if the

instruction is not clear from the plain language of the

regulation. I reject (and the majority does not contend) that the

regulation plainly precludes considering the LLC’s property (or at

least interests therein) as the property petitioner transferred

when she transferred interests in the LLC.

III. The Intent of the Secretary

If we accept that the activities instruction is ambiguous,

then we must construe that provision. With respect to that task:

“It is axiomatic that any regulation should be construed to

effectuate the intent of the enacting body.” United States v.

Miller, 303 F.2d 703, 707 (9th Cir. 1962). Indeed, hornbook law

holds:

In construing an administrative rule or regulation, the court must necessarily look to the administrative construction thereof where the meaning of the words used is in doubt, and the courts will ordinarily show deference to such construction and give it controlling weight.

1 (...continued) are purely hypothetical figures. See Estate of Newhouse v. Commissioner, 94 T.C. 193, 218 (1990). That the hypothetical willing buyer is deemed to purchase an interest in the entity’s assets (to value a hypothetical gift of that interest) is not inconsistent with the fact that a real buyer (and, by extension, a donee) would receive an interest in what has become a two- member unincorporated entity; i.e., for Federal tax purposes, a partnership. See sec. 301.7701-3(f)(2), Proced. & Admin. Regs. Thus, respondent’s position does not require the real buyer to disregard the LLC, for it is an interest in an LLC with which he winds up. -35-

73 C.J.S., Public Administrative Law and Procedure, sec. 212

(2004) (emphasis added); accord Oteze Fowlkes v. Adamec, 432 F.3d

90, 97 (2d Cir. 2005) (“An agency’s interpretation of its own

statute and regulation must be given controlling weight unless it

is plainly erroneous or inconsistent with the regulation.”

(citations and internal quotation marks omitted)); Lantz v.

Commissioner, 132 T.C. __, __ n.10 (2009) (slip op. at 23-24 n.10)

(the same).

There is ample evidence that the Secretary, in the person of

the Commissioner, construes the activities instruction to require

that the wrapper be disregarded in determining the property the

owner of a single-member disregarded entity transfers when she

transfers an interest in the entity. That is, of course,

respondent’s position, which, because it is consistent with the

Commissioner’s administrative position for at least 10 years,

cannot be dismissed as a mere litigating position.2

Implementation of the check-the-box regulations has required the

Commissioner to issue numerous interpretations. Ten years ago, in

Rev. Rul. 99-5, 1999-1 C.B. 434, the Commissioner addressed the

Federal income tax consequences of the sale by A, the owner of a

2 In Lantz v. Commissioner, 132 T.C. __, __ (2009) (slip op. at 35) (Halpern, J. dissenting), I dismissed the Commissioner’s interpretation of sec. 301.9100-1(c), Proced. & Admin. Regs., as no more than a litigating position without merit, since it was “‘plainly erroneous’ and ‘inconsistent with the regulation’”. That is not so here. -36-

single-member disregarded entity (an LLC), of a 50-percent

ownership interest in the entity to B, with the result that the

disregarded entity was converted into a partnership. The

Commissioner held that B’s purchase of 50 percent of A’s ownership

interest in the LLC is treated as the purchase of a 50-percent

interest in each of the LLC’s assets, “which are treated as held

directly by A for federal tax purposes.” Id. Therefore, the

Commissioner continued: “Under § 1001, A recognizes gain or loss

from the deemed sale of the 50% interest in each asset of the LLC

to B.” Id. In the intervening 10 years, the Commissioner has

issued numerous letter rulings consistent with, and relying on,

his interpretation in Rev. Rul. 99-5, supra, that a transfer by

the owner of all or a part of his interest in a single-member

disregarded entity is to be treated as the transfer by the owner

of a proportional interest in the entity’s assets.3 Rev. Rul. 99-

3 E.g., Priv. Ltr. Rul. 200825008 (Mar. 7, 2008) (limited partnership’s distribution of membership interests in LLC, a single-member disregarded entity, “will be treated as a distribution of LLC’s assets and liabilities to the Partners”); Priv. Ltr. Rul. 200824009 (Mar. 6, 2008) (trust’s distribution to beneficiaries A and B of interests in X, a single-member disregarded entity, “should have been treated as a non-taxable pro rata distribution of d% of X’s assets to A and e% of X’s assets to B * * * as if such assets had been distributed outright from Trust to A and B”); Priv. Ltr. Rul. 200709036 (Nov. 28, 2006) (“Although Taxpayer transferred its interest in * * *, a disregarded entity, the sale of such interest is treated as a sale of the assets of the disregarded entity for federal income tax purposes.”); Priv. Ltr. Rul. 200251008 (Sept. 11, 2002) (For purposes of sec. 1031 like-kind exchange provisions: “[T]ransfer of all the interest in * * * [disregarded entity] will be treated (continued...) -37-

5, supra, and the letter rulings are cited not as precedent, see

sec. 6110(k)(3), but to show the Commissioner’s consistency over a

decade in disregarding the wrapper and treating the transfer of an

interest in a single-member disregarded entity as a transfer of an

interest in the disregarded entity’s assets, see, e.g., Hanover

Bank v. Commissioner, 369 U.S. 672, 686 (1962) (“[Private letter]

rulings do reveal the interpretation put upon the statute by the

agency charged with the responsibility of administering the

revenue laws.”). Granted, the interpretations address sales and

other dispositions for purposes of the income tax, and the

Commissioner apparently has made no interpretation particular to

section 2501(a) and the gift tax. Yet, as the Court of Appeals

for the District of Columbia Circuit recently observed in Murphy

v. IRS, 493 F.3d 170, 185 (D.C. Cir. 2007) (admittedly an income

tax case, but the court was speaking generally about gifts): “A

gift is the functional equivalent of a below-market sale”. See

also sec. 25.2512-8, Gift Tax Regs. (“Transfers reached by the

gift tax * * * embrace * * * sales, exchanges, and other

dispositions of property for * * * [an inadequate]

consideration”.). Simply put, the difference between a sale and a

gift is a difference in degree, not in kind.

3 (...continued) as a transfer of the assets of * * * [disregarded entity].”). -38-

Given the assumed ambiguity of the activities instruction in

section 301.7701-2(a), Proced. & Admin. Regs., and the deference

we show to the Secretary’s construction of his regulations, I

accept respondent’s reading of the activities instruction as a

plausible construction. That is, because petitioner elected to

treat Pierre LLC as a disregarded entity, petitioner is properly

“treated as transferring cash and marketable securities, as

opposed to Pierre LLC interests, for federal gift tax purposes.”

I next consider the validity of the regulation.

IV. Chevron Deference

I review the validity of the regulation because, although the

majority denies that it seeks to invalidate the regulation, I

believe that it does not simply reject the meaning respondent

ascribes to the activities instruction but, rather, accepts that

meaning and rejects the activities instruction itself as an

invalid construction of the statute.4

4 The majority at least conditionally accepts respondent’s reading of the check-the-box regulations: “If the check-the-box regulations are interpreted and applied as respondent contends, they go far beyond classifying the LLC for tax purposes.” Majority op. p. 20. Indeed, the majority speculates that the result of respondent’s reading would be to “[overturn] the long- established Federal gift tax valuation regime * * * as to single- member LLCs”. Majority op. p. 20. That, the majority concludes, “would be ‘manifestly incompatible’ with the Federal estate and gift tax statutes as interpreted by the Supreme Court. See sec. 7701.” Majority op. p. 20. The majority thus seems to accept respondent’s reading of the check-the-box regulations but to conclude that that reading, and thus the activities instruction itself, is invalid because “manifestly incompatible” with the (continued...) -39-

The validity of the check-the-box regulations, at least as

they applied to imposing employment tax obligations directly on

the owner of a single-member disregarded entity, has been upheld

by this Court, Med. Practice Solutions, LLC v. Commissioner, 132

T.C. __ (2009), and two U.S. Courts of Appeals, McNamee v. Dept.

of the Treasury, 488 F.3d 100 (2d Cir. 2007), and Littriello v.

United States, 484 F.3d 372 (6th Cir. 2007).5 Barring stipulation

to the contrary, appeal of this case will lie to the Court of

Appeals for the Second Circuit. See sec. 7482(b)(1)(A), (2).

In McNamee, the taxpayer had elected to treat his single-

member LLC as a disregarded entity. The Commissioner sought to

recover employment taxes from the taxpayer that the LLC had failed

to pay, on the ground that the LLC was disregarded for Federal tax

purposes. The taxpayer objected that no regulation could deprive

him of the protection from liability that local law afforded him

as a member of an LLC and argued that the check-the-box

regulations “‘directly contradict the relevant statutory

provisions of the Internal Revenue Code’”. McNamee v. Dept. of

4 (...continued) Internal Revenue Code. In this section of this separate opinion, I show that the regulation in issue, including the activities instruction, is a valid interpretation of the statute. In sec. III., supra, of this separate opinion, I have set forth the reasons respondent’s reading of that regulation must be accepted. 5 For employment taxes related to wages paid on or after Jan. 1, 2009, a disregarded entity is treated as a corporation for purposes of employment tax reporting and liability. Sec. 301.7701-2(c)(2)(iv), Proced. & Admin. Regs. -40-

the Treasury, supra at 104. The relevant statutory provisions

were the first three paragraphs of section 7701(a), defining the

terms “Person”, “Partnership”, and “Corporation”. Id. at 106.6

In upholding the check-the-box regulations against challenge

in McNamee v. Dept. of the Treasury, supra at 105, the Court of

Appeals applied the following standard:

In reviewing a challenge to an agency regulation interpreting a federal statute that the agency is charged with administering, the first duty of the courts is to determine “whether the statute’s plain terms ‘directly addres[s] the precise question at issue.’” National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 986 * * * (2005) * * * (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 * * * (1984)). “If the statute is ambiguous on the point, we defer . .

6 In pertinent part, sec. 7701(a) provides as follows:

SEC. 7701. DEFINITIONS.

(a) When used in this title, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof--

(1) Person.--The term “person” shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.

(2) Partnership * * *.--The term “partnership” includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a trust or estate or a corporation * * *

(3) Corporation.--The term “corporation” includes associations * * * -41-

. to the agency’s interpretation so long as the construction is ‘a reasonable policy choice for the agency to make.’” National Cable, 545 U.S. at 986 * * * (quoting Chevron, 467 U.S. at 845 * * *). * * *

The Court of Appeals found the definitions ambiguous with

respect to the classification of single-member LLCs. Id. at 106-

107. Emphasizing the taxpayer’s choice in having his LLC

disregarded or treated as a corporation, the court concluded that

the check-the-box regulations “[provided] a flexible response to a

novel business form” and “are [not] arbitrary, capricious, or

unreasonable.” Id. at 109. In other words, notwithstanding the

protection from the liabilities of his LLC that Mr. McNamee

enjoyed under local law, see id. at 107, nothing in the relevant

section 7701(a) definitions deprived the Secretary of the

authority to write a regulation permitting Mr. McNamee to waive

that protection, at least as it pertained to the employment tax

liabilities of the entity, in exchange for escaping the double

taxation that would result if he failed to make that waiver, see

id. at 109, 111. The Court of Appeals thus rejected Mr. McNamee’s

contention that the limited liability rights he enjoyed under

local law protected him from the Commissioner’s action to collect

his LLC’s unpaid payroll taxes. Id. at 111.

Contrary to the majority’s suggestion that State law, not

Federal law, defines for valuation purposes under the Federal gift

tax the property rights and interests a donor transfers (see

majority op. p. 19), McNamee v. Dept. of the Treasury, supra, -42-

stands for the proposition that Federal law, in the form of the

check-the-box regulations, does define the property rights and

interests so transferred. In other words, the Court of Appeals in

McNamee construed the check-the-box regulations to modify the

bundle of rights that Mr. McNamee enjoyed under local law and that

constituted ownership of the LLC.

We are not at this point discussing the meaning of the

activities instruction, having settled that in section III.,

supra, of this separate opinion. We are considering only the

validity of the regulation, section 301.7701-2(a), Proced. &

Admin. Regs., setting forth that instruction. In the light of

McNamee v. Dept. of the Treasury, supra,7 I find that the first

three paragraphs of section 7701(a), which, as in that case,

appear to be the relevant statutory provisions, do not plainly

speak to the question of whether, for gift tax purposes, the

Secretary may write a regulation requiring that the wrapper be

disregarded in determining what property the owner of a single-

member disregarded entity transfers when she transfers an interest

in the entity. As to the question of what constitutes the bundle

of rights enjoyed by the owner of a single-member disregarded

7 In considering the persuasive value of another court’s opinion, we must consider not only the result but the rationale for that result. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (“When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.”). -43-

entity, the Court of Appeals clearly stated that, at least for

payroll tax purposes (under the preamendment version of the

regulation), the limited liability that local law accorded the

owner is ignored. McNamee v. Dept. of the Treasury, 488 F.3d at

111. Indeed, section 301.7701-1(a)(1), Proced. & Admin. Regs.,

provides: “Whether an organization is an entity separate from its

owners for federal tax purposes is a matter of federal tax law and

does not depend on whether the organization is recognized as an

entity under local law.” If the definitions in section 7701(a)(1)

through (3) are consistent with disregarding one right in the

bundle of rights enjoyed by the owner of a single-member

disregarded entity, why are they not consistent with disregarding

more than one right in that bundle; indeed, why are they not

consistent with disregarding the entirety of the bundle (i.e., the

wrapper) that separates the owner from the underlying assets?

McNamee thus convinces me that, in the context of this case, the

check-the-box regulations are not arbitrary, capricious, or

unreasonable, and, therefore, are valid.

As I point out in section III., supra, of this separate

opinion, the Commissioner has plainly taken the position that,

pursuant to the check-the-box regulations, for purposes of the

income tax, the wrapper is disregarded and the owner of a single-

member disregarded entity transferring an interest in the entity

is deemed to transfer an interest in the underlying assets of the -44-

entity. Neither petitioner nor the majority suggests that

transfers of interests in single-member disregarded entities

cannot be treated as described. While the income tax provisions

of the Internal Revenue Code are not to be construed as though

they were in pari materia with the gift tax provisions,

Farid-Es-Sultaneh v. Commissioner, 160 F.2d 812, 814 (2d Cir.

1947), revg. 6 T.C. 652 (1946), there is nothing in the

definitions in section 7701(a)(1) through (3) of “Person”,

“Partnership”, and “Corporation” that indicates that those terms

should have different meanings for purposes of the income and gift

tax provisions of the Internal Revenue Code.

While the majority does not acknowledge that it is addressing

the validity of the check-the-box regulations, I believe that it

is rejecting the activities instruction as an invalid construction

of the statute. See supra note 4 and accompanying text. Its

reason for doing so is that “the Commissioner cannot by regulation

overrule the historical Federal gift tax valuation regime

contained in the Internal Revenue Code and substantial and well-

established precedent in the Supreme Court, the Courts of Appeals,

and this Court”. Majority op. p. 21. While certainly the

Secretary cannot by regulation overrule the Internal Revenue Code,

judicial construction of a statute must, except in one instance,

give way to later administrative construction:

A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to -45-

Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. * * *

Natl. Cable & Telecomms. Association v. Brand X Internet Servs.,

545 U.S. 967, 982 (2005).

Moreover, while application of the check-the-box regulations

to section 2501(a) may well result in a radical departure from

settled rules, as the majority suggests, see majority op. p. 21,

the majority fails to acknowledge that, at the time of their

adoption, the check-the-box regulations represented a radical

departure for income tax purposes from prior caselaw and

regulatory precedent, beginning with the seminal Supreme Court

case of Morrissey v. Commissioner, 296 U.S. 344 (1935). The

Supreme Court in Morrissey used various factors to classify

business trusts as either true trusts or associations taxable as

corporations (associations). Subsequent regulations extended the

factors approach to the classification of other business entities.

The check-the-box regulations, in effect, overrule Morrissey by

providing that, with certain exceptions, an unincorporated

organization comprising two or more associates may elect its

classification, as a partnership or corporation, for Federal tax

purposes, regardless of the number of corporate characteristics it

possesses under State (or foreign) law. Moreover, the right of an

unincorporated single-member organization with a preponderance of

corporate characteristics, which constitutes an entity separate -46-

from its owner under State (or foreign) law, to elect to be

disregarded for Federal income tax purposes was unprecedented

under the then-existing law.8 The check-the-box regulations thus

constituted a radical departure from existing jurisprudence that

prompted many commentators to question their validity. See Dover

Corp. & Subs. v. Commissioner, 122 T.C. 324, 331 n.7 (2004). That

concern has been put to rest by McNamee v. Dept. of the Treasury,

488 F.3d 100 (2d Cir. 2007), Littriello v. United States, 484 F.3d

372 (6th Cir. 2007), and Med. Practice Solutions, LLC v.

Commissioner, 132 T.C. __ (2009), all of which concerned single-

member disregarded entities. If the check-the-box regulations

trump Supreme Court precedent regarding the role of State law in

determining entity classification for Federal income or employment

tax purposes, then surely they must also supersede judicial

precedent respecting State law concepts of property rights for

8 See, e.g., Hynes v. Commissioner, 74 T.C. 1266, 1286 (1980) (State law trust with a single beneficiary classified as an association because it possessed a preponderance of corporate characteristics, including associates and a joint profit motive); Barnette v. Commissioner, T.C. Memo. 1992-371 (German GmbH wholly owned by U.S. corporation classified as an association because it possessed a preponderance of the remaining four corporate characteristics after disregarding the two corporate characteristics absent from both one-man corporations and sole proprietorships; viz, “associates” and an objective to carry on a business for “joint” profit), affd. without published opinion 41 F.3d 667 (11th Cir. 1994); see also Wirtz & Harris, “Tax Classification of the One-Member Limited Liability Company”, 59 Tax Notes 1829 (June 28, 1993). -47-

Federal gift (and estate) tax purposes. Yet that is precisely the

conclusion the majority denies.

Respondent’s interpretation of section 301.7701-2(a), Proced.

& Admin. Regs., is a valid construction of section 7701(a)(1)

through (3).

V. Conclusion

As stated above, section 2501(a) imposes a tax on the

transfer of property by gift and section 2512(a) provides that the

amount of a gift of property is the value of the property on the

date of the gift. We are here required to identify for purposes

of those provisions the property petitioner transferred when she

conveyed two 9.5-percent interests in Pierre LLC to two trusts.

Respondent argues that, because petitioner elected to treat Pierre

LLC as a disregarded entity, she is properly treated as

transferring two 9.5-percent undivided interests in the LLC’s

assets rather than two 9.5-percent interests in the LLC itself.

Respondent relies on the check-the-box regulations as authority to

so identify the property petitioner transferred. After applying

traditional tools of statutory and regulatory construction to the

pertinent language of the regulations, I agree with respondent as

to the identity of the property transferred.

In conclusion, I note that, when identifying the property

transferred for purposes of the gift tax, applying the check-the-

box regulations in the manner respondent construes them will not -48-

always be adverse to taxpayers. If the donor transfers a

controlling interest in her single-member disregarded entity

holding, say, real property, the discount attaching to the

undivided interest in the real property deemed transferred may

exceed the discount, if any, attaching to the controlling interest

nominally transferred.9 The check-the-box regulations put the

choice of entity classification in the hands of the taxpayer.

That the taxpayer bears any burden along with the benefits seems

only fair.

KROUPA and HOLMES, JJ., agree with this dissenting opinion.

9 Here it appears that petitioner has not claimed a discount on account of any undivided interest in property transferred. - 49 -

KROUPA, J., dissenting: The majority opinion allows an

octogenarian taxpayer to give away $4.25 million in cash and

marketable securities at a substantial discount in gift taxes

because she put them in a limited liability company (LLC), despite

a regulation telling us that “for federal tax purposes,” that LLC

should be “disregarded.” The majority is either ignoring the

plain language of the regulation or silently invalidating it. I

must respectfully dissent.

The majority fails to apply the plain language of sections

301.7701-1 through 301.7701-3, Proced. & Admin. Regs.

(collectively the check-the-box regulations), which require that a

single-member LLC be disregarded for “federal tax purposes.” As

the trier of fact, I find no fault with the facts upon which the

majority addresses the legal issue. I take exception, however, to

how the majority frames the legal issue. Neither party argued

that the regulations are invalid. Yet the majority has, in

effect, invalidated the check-the-box regulations for Federal gift

tax purposes without providing the necessary legal analysis to do

so.

I. The Plain Language of the Check-the-Box Regulations

The check-the-box regulations provide that an “entity with a

single owner can elect to be classified as an association or to be

disregarded as an entity separate from its owner.” Sec. 301.7701-

3(a), Proced. & Admin. Regs. The regulations further provide that - 50 -

“[w]hether an organization is an entity separate from its owners

for federal tax purposes is a matter of federal tax law and does

not depend on whether the organization is recognized as an entity

under local law.”1 Sec. 301.7701-1(a)(1), Proced. & Admin. Regs.

(emphasis added). The crux of my dispute with the majority is how

the majority interprets these provisions.

The majority ignores the plain language of the check-the-box

regulations and holds instead that Pierre LLC must be respected as

an entity separate from petitioner for Federal gift tax purposes.

The majority fails to discuss, however, what it means for an

entity not to be “separate” from its owner. The regulations

provide that the owner of a disregarded entity is treated as the

owner of its property. See sec. 301.7701-3(g)(1)(iii) and (iv),

Proced. & Admin. Regs. Likewise, the Court of Appeals for the

Second Circuit, the court to which this case is appealable,2 has

said “‘if the entity is disregarded, its activities are treated in

the same manner as a sole proprietorship * * * of the owner.’”

McNamee v. Dept. of the Treasury, 488 F.3d 100, 107-108 (2d Cir.

1 The Commissioner has set forth specific, limited exceptions in the regulations to this general rule that took effect after the year at issue. See sec. 301.7701-2(c)(2)(iii), (iv), and (v), Proced. & Admin. Regs. He has also issued Chief Counsel Advice 199930013 (Apr. 18, 1999) concluding that a single-member LLC could not be disregarded for collection purposes under secs. 6321 and 6331. 2 Petitioner resided in New York when she filed the petition. See sec. 7482(b)(1)(A). - 51 -

2007) (quoting section 301.7701-2(a), Proced. & Admin. Regs.).

Yet the majority ignores these authorities and minimizes the

check-the-box regulations as simply rules of classification for

Federal income tax purposes. See majority op. pp. 11-15, 20. In

doing so, the majority limits the phrase “federal tax purposes” to

Federal income tax purposes. See majority op. pp. 19-20. The

majority’s interpretation is wrong for several reasons.

First, the check-the-box regulations do not read “for federal

income tax purposes.” Instead, the regulations are drafted

broadly. The check-the-box regulations apply to the entire Code.

See sec. 7701(a). Had the drafters of the check-the-box

regulations intended that they apply only for income tax purposes,

the drafters would have used the phrase “federal income tax

purposes.” This phrase is used extensively throughout the

regulations. See, e.g., sec. 1.6050K-1(e)(2), Income Tax Regs.;

sec. 53.4947-1(b)(2)(iii), Foundation Excise Tax Regs.; sec.

301.6362-5(c)(1)(i), Proced. & Admin. Regs. The drafters

expressed their intent when they chose not to limit the

regulations’ scope to Federal income tax.

In addition, the drafters could have specifically excluded

gift tax from the regulations’ scope had the drafters intended

that result. They did not do so when the regulations were

originally drafted. See T.D. 8697, 1997-1 C.B. 215. They also

did not do so when the regulations were subsequently amended - 52 -

specifically to exclude employment and certain excise taxes from

the regulations’ scope concerning disregarded entity status. See

sec. 301.7701-2(c)(2)(iv) and (v), Proced. & Admin. Regs.; T.D.

9356, 2007-2 C.B. 675 (effective January 1, 2009). Tellingly,

the preamble to the amended regulations states that single-owner

entities “generally would continue to be treated as disregarded

entities for other federal tax purposes” after amendment. See

Notice of Proposed Rulemaking, 70 Fed. Reg. 60475 (Oct. 18, 2005).

I fail to see how “for other federal tax purposes” means “for

other Federal tax purposes except gift tax purposes.”

The check-the-box regulations expressly tell us to treat the

owner of a single-member LLC as the owner of its assets. Sec.

301.7701-3(g)(1)(iii) and (iv), Proced. & Admin. Regs. In

addition, the owner of a disregarded entity that elects to have

the entity treated as a corporation is deemed to have contributed

all of the assets and liabilities of the entity to a corporation

in exchange for stock. Sec. 301.7701-3(g)(1)(iv), Proced. &

Admin. Regs. Similarly, a single-member corporation that elects

to be disregarded is treated as distributing all of its assets and

liabilities to its single owner. Sec. 301.7701-3(g)(1)(iii),

Proced. & Admin. Regs. The check-the-box regulations consistently - 53 -

treat single owners who choose noncorporate status for their LLCs

as holding the property of these disregarded entities.3

The majority also fails to address other guidance from the

Commissioner that treats the owner of a single-member LLC as the

owner of its underlying property. Rev. Rul. 99-5, 1999-1 C.B.

434, describes the Federal tax consequences when a disregarded

single-member LLC becomes an entity with more than one owner and

is classified as a partnership for Federal tax purposes. The

ruling requires that the single owner be treated as selling an

interest in each of the assets if an interest in the LLC is sold.

Id. The ruling also states that, if the interest is obtained

through a capital contribution, the single owner is treated as

having contributed all of the assets of the LLC to the new

partnership for an interest. Id. In both instances, the single

owner is treated as the owner of the assets of the LLC as required

under the check-the-box regulations.

The majority further ignores the Commissioner’s consistent

treatment of single-member LLC owners as the owners of the LLC’s

underlying assets. The Commissioner has issued numerous private

3 There is nothing radical about this. It is essentially a limited form of piercing the corporate veil “for federal tax purposes.” The State-law concept of piercing the corporate veil means, and the regulations echo, that a “court will disregard the corporate entity * * * and treat as identical the corporation and the individual or individuals owning all its stock and assets.” 14 N.Y. Jur.2d Business Relationships sec. 34 (2009). - 54 -

letter rulings on this issue.4 For example, the owner of a

single-member LLC is treated as owning the LLC’s underlying assets

for purposes of determining like-kind exchange treatment on the

exchange of property under section 1031(a)(1), though the owner

has no State law property interest in the LLC’s assets.5 See

Priv. Ltr. Rul. 200732012 (May 11, 2007); Priv. Ltr. Rul.

200251008 (Sept. 11, 2002); Priv. Ltr. Rul. 200131014 (May 2,

2001); Priv. Ltr. Rul. 200118023 (Jan. 31, 2001); Priv. Ltr. Rul.

199911033 (Dec. 18, 1998); Priv. Ltr. Rul. 9807013 (Nov. 13,

1997); Priv. Ltr. Rul. 9751012 (Sept. 15, 1997). Despite the

Commissioner’s consistent treatment of single owners as the owners

of the LLCs’ underlying property, the majority insists that the

check-the-box regulations do not apply to determine what property

the single owner owns for Federal gift tax purposes. See majority

op. p. 20.

I know of no provision in the Code that requires us to treat

the term “property” used in section 1031(a)(1) differently for

4 Private letter rulings may be cited to show the practice of the Commissioner. See Rowan Cos. v. United States, 452 U.S. 247, 261 n.17 (1981); Hanover Bank v. Commissioner, 369 U.S. 672, 686- 687 (1962); Dover Corp. & Subs. v. Commissioner, 122 T.C. 324, 341 n.12 (2004). 5 This treatment has not been limited to like-kind exchange situations. See Priv. Ltr. Rul. 200134025 (May 22, 2001) (single member of a disregarded entity is treated as the owner of property it receives for purposes of the exemptions under sec. 514(b)(1)(A) and (c)(9)); Priv. Ltr. Rul. 9739014 (June 26, 1997) (a single-member LLC is a qualified subchapter S shareholder because the LLC is disregarded under the regulations). - 55 -

purposes of section 2501, which imposes a tax on the transfer of

property by gift. The Supreme Court has already told us that the

meaning of the word “property” in the Code is a Federal question

and Federal courts are “in no way bound by state courts’ answers

to similar questions involving state law.” United States v.

Craft, 535 U.S. 274, 288 (2002). The majority’s reliance on what

it calls the longstanding gift tax regime to create such a

difference addresses neither the plain language nor the intent of

the check-the-box regulations.

II. The Majority Invalidates the Regulations for Federal Gift Tax Purposes

The majority concludes that the check-the-box regulations do

not apply for Federal gift tax purposes. See majority op. p. 20.

I disagree. I do not minimize a plain language interpretation of

the regulations as merely respondent’s litigating position. To do

so promotes a distinction without a difference. Instead, I

interpret “federal tax purposes” to mean “federal tax purposes,”

including Federal gift taxes.

The majority, in effect, invalidates the check-the-box

regulations to the extent that the term “federal tax purposes”

encompasses Federal gift tax. The majority does not, however,

provide the necessary analysis to do so. How could they, given

that this Court and the Courts of Appeals for the Second and Sixth

Circuits have recently blessed the regulations as “eminently

reasonable”? McNamee v. Dept. of the Treasury, 488 F.3d at 109; - 56 -

Littriello v. United States, 484 F.3d 372, 378 (6th Cir. 2007);

see Med. Practice Solutions, LLC v. Commissioner, 132 T.C. __

(2009). Instead, the majority concludes that the Commissioner

cannot by regulation overrule the Federal gift tax regime as

interpreted by this Court and others. See majority op. p. 21.

The majority must provide further analysis. An agency may

promulgate regulations that overcome the judiciary’s prior

construction of a statute, even an entire “regime’s” worth of

construction, unless that prior construction followed from the

statute’s unambiguous terms. See Natl. Cable & Telecomms.

Association v. Brand X Internet Servs., 545 U.S. 967, 982 (2005);

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 863-864 (1984) (an agency may change its prior interpretation

of a statute to meet changing circumstances); Dickman v.

Commissioner, 465 U.S. 330, 343 (1984) (“it is well established

that the Commissioner may change an earlier interpretation of the

law, even if such a change is made retroactive in effect”). Thus,

the majority’s reliance on the longstanding gift tax regime before

the issuance of the check-the-box regulations is not enough to

invalidate the regulations if the related statute is ambiguous.

The Court of Appeals for the Second Circuit has already held

that section 7701 is ambiguous as to the Federal tax treatment of

single-member LLCs. McNamee v. Dept. of the Treasury, supra at

107. Further, the court concluded that the check-the-box - 57 -

regulations reasonably interpret, and fill gaps in, an ambiguous

statute and are entitled to deference under Chevron U.S.A., Inc.

v. Natural Res. Def. Council, Inc., supra. McNamee v. Dept. of

the Treasury, supra at 105-107; see Littriello v. United States,

supra at 376-378. The majority ignores this relevant Second

Circuit precedent and concludes, without discussion of any degree

of deference, that an entity’s classification for income tax

purposes is irrelevant to how a donor must be taxed under the

Federal gift tax provisions on a transfer of an ownership interest

in the LLC. See majority op. pp. 19-20.

The majority misstates the issue. The majority writes that:

While we accept that the check-the-box regulations govern how a single-member LLC will be taxed for Federal tax purposes, i.e., as an association taxed as a corporation or as a disregarded entity, we do not agree that the check-the-box regulations apply to disregard the LLC in determining how a donor must be taxed under the Federal gift tax provisions on a transfer of an ownership interest in the LLC. * * *

Majority op. pp. 19-20. The check-the-box regulations determine

whether a single-member entity exists at all for Federal tax

purposes rather than how that entity will be taxed.

The majority distinguishes between the “classification” and

the “valuation” of an entity. But that distinction is false. The

gift tax regulations provide guidance on how to value interests in

a corporation, a partnership, and a proprietorship. See secs.

25.2512-2 and 25.2512-3, Gift Tax Regs. They do not provide

guidance on how to value an interest in a single-member LLC. - 58 -

Accordingly, we must first “classify” the entity, and only then

can we “value” its interests. I submit that the ambiguity of

section 7701 extends to gift tax valuation. The majority cannot

trivialize the check-the-box regulations by dismissing them as

irrelevant.

III. The Majority’s Reliance on the Gift Tax Regime

The majority concludes that it would be manifestly

incompatible with the gift tax regime if we did not respect Pierre

LLC for gift tax purposes because New York law provides that a

member has no interest in specific property of the LLC while a

membership interest in an LLC is personal property. N.Y. Ltd.

Liab. Co. Law sec. 601 (McKinney 2007). I disagree. The check-

the-box regulations provide the Federal tax consequences of what

is, in effect, an agreement between the taxpayer and the

Commissioner to treat an entity in a certain way for Federal tax

purposes despite the entity’s State law classification. There is

simply no LLC interest left to value for Federal gift tax purposes

when a single-member LLC elects to be disregarded. It therefore

does not matter whether State law recognizes an LLC as a valid

entity or provides that a member has no interest in any of the

specific property of the LLC. See sec. 301.7701-1(a)(1), Proced.

& Admin. Regs. The check-the-box regulations specifically say

that Federal law determines whether a single-member entity is

recognized as separate from its owner. Id. - 59 -

The majority dismisses relevant precedent from two Federal

Courts of Appeals addressing this conflict between State law

rights of single-member LLC owners and the consequences of

disregarded entity status under the check-the-box regulations.

See McNamee v. Dept. of the Treasury, 488 F.3d 100 (2d. Cir.

2007); Littriello v. United States, 484 F.3d 372 (6th Cir. 2007).

The Court of Appeals for the Second Circuit rejected a taxpayer’s

argument that he was not liable for his single-member LLC’s unpaid

payroll taxes because Connecticut law provided that the owner is

not personally liable for the LLC’s debts. See McNamee v. Dept.

of the Treasury, supra. The court noted that, while State laws of

incorporation control various aspects of business relations, they

may affect, but do not necessarily control, the application of

Federal tax provisions. Id. at 111 (quoting Littriello v. United

States, supra at 379). Accordingly, a single-member LLC is

entitled to whatever advantages State law may extend, but State

law cannot abrogate its owner’s Federal tax liability. Id.

The majority minimizes this relevant analysis in McNamee and

Littriello. The majority summarily concludes that it is not

relevant because the courts did not specifically address gift tax.

See majority op. p. 15. The courts had no reason to address gift

tax issues. That does not mean, however, that the courts’

analyses should be ignored. - 60 -

Both the McNamee and Littriello courts recognized that the

check-the-box regulations applied equally to the nonincome-tax

issue of employment tax liability. Determining an owner’s

liability for employment taxes is as far removed from determining

the owner’s income tax liability as is determining the owner’s

gift tax liability. The Code imposes both Federal employment tax

liability and Federal gift tax liability separate and apart from

determining a taxpayer’s income tax liability. The majority fails

to recognize that the single owner’s liability for employment

taxes turns upon disregarding the LLC for Federal tax purposes

rather than upon the identity of the taxpayer. See Med. Practice

Solutions, LLC v. Commissioner, 132 T.C. at __ (slip op. at 5) (a

single-member LLC “and its sole member are a single taxpayer or

person to whom notice is given”); see also McNamee v. Dept. of the

Treasury, supra at 111 (an entity disregarded as separate from its

owner “cannot be regarded as the employer”); Littriello v. United

States, supra at 375, 378 (recognizing a single owner as the

individual who “owns all the assets, is liable for all debts, and

operates in an individual capacity”). Despite the majority’s

wish, Pierre LLC does not exist apart from petitioner for gift tax

purposes, and petitioner should be treated as holding its assets.

Further, the Second and Sixth Circuit Courts of Appeals

stressed that the taxpayer could have escaped personal liability

for the LLC’s tax debt if the taxpayer had simply elected - 61 -

corporate status for the single-member LLC. McNamee v. Dept. of

the Treasury, supra at 109-111; Littriello v. United States, supra

at 378. The same principle applies here. Petitioner could have

elected to treat Pierre LLC as a corporation. She did not. The

Supreme Court has repeatedly recognized that “while a taxpayer is

free to organize his affairs as he chooses, nevertheless, once

having done so, he must accept the tax consequences of his choice,

whether contemplated or not.” Commissioner v. Natl. Alfalfa

Dehydrating & Milling Co., 417 U.S. 134, 149 (1974). I would hold

petitioner to her choice.

Finally, the majority overlooks the broad scope of the gift

tax statutes in concluding that the check-the-box regulations are

manifestly incompatible with the gift tax regime. Congress

intended to use the term “gifts” in its most comprehensive sense.

Commissioner v. Wemyss, 324 U.S. 303, 306 (1945). The gift tax

applies whether the gift is direct or indirect. Sec. 2511.

Accordingly, transfers of property by gift, by whatever means

effected, are subject to Federal gift tax. Dickman v.

Commissioner, 465 U.S. at 334. Moreover, we have used substance

over form principles to get to the true nature of the gift where

the substance of a gift transfer does not fit its form. See Kerr

v. Commissioner, 113 T.C. 449, 464-468 (1999), affd. on another

issue 292 F.3d 490 (5th Cir. 2002); Astleford v. Commissioner,

T.C. Memo. 2008-128; Estate of Murphy v. Commissioner, T.C. Memo. - 62 -

1990-472. We have also used the step transaction doctrine, which

has been called “‘well-established’” and “‘expressly sanctioned’”

in the area of gift tax where intra-family transactions often

occur. See Senda v. Commissioner, 433 F.3d 1044, 1049 (8th Cir.

2006) (quoting Commissioner v. Clark, 489 U.S. 726, 738 (1989)),

affg. T.C. Memo. 2004-160. The majority would instead have us

apply the opposite approach, accepting petitioner’s own label

rather than the substance of her choice.

Despite this broad expanse of gift taxes, the majority would

require Congressional action before any State law property right

could be disregarded for Federal gift tax purposes. See majority

op. pp. 20-21. The majority cites four special valuation statutes

(sections 2701-2704) to imply that Congress will take action when

necessary to overcome the “willing buyer, willing seller” gift tax

valuation rule. See majority op. p. 21. I know of no authority,

however, that prevents the promulgation of regulations affecting

the so-called gift tax regime.

IV. Conclusion

The plain language of the regulations requires Pierre LLC to

be “disregarded as an entity separate from its owner.” Unlike the

majority, I give meaning to these words. I do not minimize this

language by labeling it a classification. A plain language

interpretation of the check-the-box regulations must prevail. It - 63 -

is an interpretation of relevant regulations. It is not

manifestly incompatible with the gift tax statutes.

For the foregoing reasons, I respectfully dissent.

COLVIN, HALPERN, GALE, HOLMES, and PARIS, JJ., agree with this dissenting opinion.