T.C. Memo. 2009-280



                       UNITED STATES TAX COURT



ESTATE OF ANNE Y. PETTER, DECEASED, TERRENCE D. PETTER, PERSONAL
 REPRESENTATIVE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE,
                            Respondent



     Docket No. 25950-06.                 Filed December 7, 2009.




     John W. Porter, Keri D. Brown, Stephanie Loomis Price, and

J. Graham Kenney, for petitioner.


     Randall E. Heath and Sandra Veliz, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


     HOLMES, Judge:    Anne Petter inherited a large amount of

valuable stock and set up a company to hold it.1   She divided


     1
         Anne died after trial, so references to her are references
                                                     (continued...)
                                 - 2 -

ownership of the company among herself, trusts for her children’s

benefit, and charities.     She performed this division by

allocating a fixed number of units in the company to herself, a

fixed dollar amount to the trusts, and the rest to the charities.

     Her estate and the Commissioner now agree that the value of

the company was higher than she first reported.     That has

triggered the obligation to reallocate more shares in the company

to the charities.     The question is how to measure the size of the

gift on which tax is owed:     We have to multiply the new value of

the shares by the number of shares going to the charities, but is

it the number of shares before or after the reallocation?

                           FINDINGS OF FACT

     Anne Petter’s uncle was one of the first investors in what

became United Parcel Service of America, Inc. (UPS).     UPS was a

privately owned company for most of its existence, and its stock

was mostly passed within the families of its employees.      When

Anne’s uncle died in 1982, he left her his stock.     It was by then

worth millions.

         Anne had been a schoolteacher most of her life, and after

her windfall, she continued to teach in Washington State, where

she resided almost all her life--including when she filed the

petition in this case.     She also stayed in the same house.   And



     1
      (...continued)
to her estate and her son as its personal representative.
                               - 3 -

she continued to stay close to her children.    She had three–-

Donna Petter Moreland, Terrence Petter (Terry), and David Petter.

Donna has little or no business experience, and worked mostly

inside the home, rearing three young children.    Terry owns a tow

truck business, and has three adult children of his own.2

     These children and grandchildren were the natural objects of

Anne’s affection, and by 1998 she realized that her UPS stock put

her in need of an estate planner.    She first went to her lawyer,

Jim Tannesen, for advice.   But when she told him that she thought

her estate would be worth close to $12 million, Tannesen had the

professional responsibility to suggest a lawyer more experienced

in handling high-value estates.    He referred Anne to Richard

LeMaster, a lawyer with 30 years of estate-planning experience

and advanced degrees in tax law.

I.   Future Planning

     LeMaster first asked Anne what she wanted to do with her

wealth.   She told him that she wanted her estate put “in order”

so it could provide a comfortable life for her children and their

children, and that she wanted to give some money to charity.

Anne also wanted Donna and Terry to learn how to manage the

family’s assets, but she felt they needed help to learn how to

invest and manage money wisely.


     2
       This case does not involve David, who is disabled. Anne
provided separately for him, and those transfers are not at
issue.
                                - 4 -

     LeMaster set to work.    First, he created a life insurance

trust (ILIT) in 1998 to cover any estate taxes.3    Anne

contributed enough to the ILIT in September 1998 for it to buy a

$3.5-million life-insurance policy, with her children and

grandchildren as beneficiaries.    The purpose of the ILIT was to

create a source of ready cash to pay the large estate tax bill

that would arise upon Anne’s death.     LeMaster couldn’t just put

the money in a bank account in Anne’s name; doing that would make

Anne the owner of the money, and it would become yet another

taxable part of the estate.    Instead, he made the trust the owner

and Anne’s heirs the beneficiaries, excluding it from the estate.

     LeMaster then put $4 million of UPS stock in a charitable

remainder unitrust (CRUT) to cover Anne’s day-to-day expenses for

the rest of her life.4   The CRUT gave Anne an annual income of 5



     3
       Anne set up an irrevocable life insurance trust instead of
simply buying a life insurance policy and naming beneficiaries,
which may have estate or gift tax consequences. The ILIT buys a
life insurance policy on the life of the grantor, and the ILIT
then names the beneficiaries. This structure removes the
insurance policy from the grantor’s estate and can allow the
proceeds to flow to the beneficiaries tax free.
     4
       CRUTs are governed by section 664. They must pay a
specified percentage of their fair market value to a beneficiary
at least annually, followed by payment of the remaining trust
corpus to a charity. If a CRUT meets all the regulatory
requirements, the taxpayer may take a charitable deduction equal
to the value of the charitable remainder in the year he creates
the trust. Sec. 1.170A-6(b)(1)(iii), Income Tax Regs. (Unless
otherwise indicated, all section references are to the Internal
Revenue Code in effect for the year at issue, and Rule references
are to the Tax Court Rules of Practice and Procedure.)
                               - 5 -

percent of its assets--dividends being sufficient to fund the

payout without generating immediate capital gains tax.     After she

died, the remainder passed to charity.

II.   The Petter Family Limited Liability Company and the Trusts

      At the heart of the plan, and the center of this case, were

the Petter Family LLC (PFLLC) and the trusts.   LeMaster designed

the PFLLC in 1998 to be a disregarded limited liability company5

incorporated in Washington.   He planned to fund it with UPS stock

at a later date, but then in November 1999 UPS announced it was

going public.   This froze Anne’s UPS stock so she could not

transfer it until the initial public offering was done.6    After

Anne’s stock thawed out in May 2001, she discovered that its

value had risen to $22.6 million.




      5
       A limited liability company, unless it elects to be taxed
as a corporation, is a passthrough entity; its profits and losses
“pass through” the entity to the owners, called members, who pay
individual income tax. An LLC’s owners do not own shares, but
membership “units”. An LLC with just one owner is “disregarded”
if it is recognized under state law (for instance, to limit the
owner’s liability) but ignored under federal tax law, so that the
taxable activities of the company are treated as though the owner
carried out those activities himself. Sec. 301.7701-3(a) and
(b)(1), Proced. & Admin. Regs.
      6
       Companies often impose “lock-up” periods when they make an
initial public offering to prevent existing shareholders from
immediately selling their stock. In theory this prevents a flood
of stock from hitting the market and lowering its price near the
start of public trading. See McIntyre, “IPO Lock-Ups Stop
Insider Selling,” Investopedia,
http://investopedia.com/articles/stocks/07/ipo_lockup.asp?#.
                                    - 6 -

     LeMaster and Anne began finishing their plans for the PFLLC.

LeMaster had drawn up the “Petter Family LLC Operating

Agreement,” which Anne, Donna, and Terry signed.       Anne

contributed 423,136 shares of UPS stock worth $22,633,545 to the

PFLLC.     These shares formed Anne’s capital account, defined in

the Operating Agreement as an “account which will initially

reflect the Member’s interest in the property contributed upon

formation of the Company net of associated liabilities.”        She

received 22,633,545 membership units, divided into three classes

monogrammed with the initials of herself and her children: Class

A, Class D, and Class T.7

         Membership Unit Class                Number of Units
                Class A                            452,671
                Class D                         11,090,437
                Class T                          11,090,437
                  Total                          22,633,545

     The holders of each class of units had the right to elect a

manager by majority vote.        Anne became the manager of the Class A

units, Donna managed Class D, and Terry managed Class T.        A

majority of the managers had to approve decisions about how to

manage the company, with the caveat that no vote could pass


     7
       Although the Operating Agreement for the PFLLC says the
initial capital account for each member is $1,000 per unit, we
find that Anne’s capital account was actually $1 per unit, as she
gave UPS stock worth $22,633,545 and got 22,633,545 units in
return. The discrepancy is immaterial to our holding.
                                 - 7 -

without the approval of the manager in charge of the Class A

units--effectively giving Anne veto power over all corporate

decisionmaking.   Another potentially important provision required

that when members (rather than managers) voted, the vote carried

by a majority of membership units for each class, not just a

majority of members.     This meant, for instance, that if members

outside the family acquired a majority of any class of shares,

they could override the family’s votes and elect their own

manager.

     But the Operating Agreement also made such a loss of control

unlikely:    It restricted what rights could be transferred by gift

or bequest so that transfers outside the Petter family required

manager approval, and transferees took only “Assignees’ Rights”

unless they were accepted as a “Substituted Member” by the

managers.    Assignees had no voting rights but got distributions

of profits and losses.    LeMaster advised Anne that managers owed

fiduciary duties to all members, but owed no such duties to

assignees.   Substituted members had to pay transfer costs and

become parties to the Operating Agreement by executing

instruments of joinder.

     This was undoubtedly the most complex transaction any of the

Petters had been a part of.    Donna struggled to understand it and

even hired an attorney to help her.      That lawyer seems to have

been of some help--LeMaster refers to some changes in the trust
                               - 8 -

structure that Donna’s lawyer prompted him to make--but the

record does not show specifically what they were.   The situation

does not seem to have turned at all adversarial, however, and

Donna did not even remember any specific bits of advice her

lawyer gave.

     Once Anne had all the units in place and divided into

classes, it was time to transfer them to Donna and Terry.    In

late 2001, LeMaster set up two intentionally defective grantor

trusts.   (Although specialists call them “defective,” these types

of trusts are widely used by sophisticated estate planners for

honest purposes.)   Anne’s trusts were defective because they

allowed the trustee of either trust to purchase and pay premiums

on a life insurance policy on the life of the grantor (Anne), in

contravention of section 677(a)(3).    This meant that for income-

tax purposes--though not for any other purpose--Anne would be

treated as the owner of the assets even though they were legally

owned by a trustee, and she herself would remain liable for

income taxes on the trust’s income for the rest of her life.

This arrangement did, however, remove those assets held in trust

from Anne’s estate, reducing her estate-tax liability.   It also

allowed her to make income-tax payments for the trusts without

the IRS’ treating those payments as additional gifts to her

children.   Donna became the trustee of the Donna K. Moreland 2001

Long Term Trust (Donna’s trust), and Terry became the trustee of
                                - 9 -

the Terrence F. Petter 2001 Long Term Trust (Terry’s trust).

Donna’s trust named Donna and her descendants as beneficiaries;

Terry’s named him and his descendants as beneficiaries.

III. Funding the Trusts

     The transfer proceeded in two parts–-first a gift, then a

sale.    On March 22, 2002, Anne gave the trusts PFLLC units meant

to make up 10 percent of the trusts’ assets; then on March 25 she

sold them units worth 90 percent of the trusts’ assets in return

for promissory notes.8

     As part of these transfers, Anne also gave units to two

charities–-the Seattle Foundation and the Kitsap Community

Foundation.   Both are public charities under section 501(c)(3),

which means donors can deduct donations worth up to 50 percent of

their income.   (This is an advantage that public charities have

over private foundations, whose donors can deduct contributions

only up to the lesser of 30 percent of income or what’s left of

their 50 percent public-charity balance.    Sec. 170(b)(1)(A)(vii),

(B), (F).)    Anne chose charities that are community foundations

offering “donor-advised funds.”    Donor-advised funds are owned

and controlled by a charity, but kept separately identified.

Donors can at their leisure later advise the charity where they



     8
       LeMaster said he believed there was a rule of thumb that a
trust capitalized with a gift at least 10 percent of its assets
would be viewed by the IRS as a legitimate, arm’s-length
purchaser in the later sale.
                              - 10 -

want the money to go and how it should be invested.   See sec.

4966(d)(2)(A).   Community foundations accept contributions,

manage investments, and then spread the money across a wide

variety of charitable organizations, easing the administrative

burdens of charitable giving.9   The Seattle Foundation is big

enough that it has the expertise to handle large and complex

gifts like Anne’s, which would have been too complicated for many

of the smaller charities that were the ultimate recipients of her

largesse.

     The division of PFLLC’s units among gifts to the trusts and

community foundations, and gifts and sales to the trusts, meant

that Anne had to value what she was giving and selling.   LeMaster

used a formula clause dividing the units between the trusts and

two charities, to ensure that the trusts did not get so much that

Anne would have to pay gift tax.   There were two sets of gift

documents, one for Donna’s trust which named it and the Kitsap

Community Foundation as transferees; and a similar set for

Terry’s trust which named it and the Seattle Foundation as

transferees.   The formula is laid out in both sets and in several

sections.   Recital C of Terry’s document, for example, provides



     9
       Although community foundations tend to be rather quiet in
their fund-raising, they are rapidly becoming a force in
charitable giving across the country, increasing dollars donated
from half a billion in 1990 to an estimated $4.6 billion in 2008.
Key Facts on Community Foundations, 2 (Foundation Center, May
2009).
                             - 11 -

“Transferor wishes to assign 940 Class T Membership Units in the

Company (the “Units”) including all of the Transferor’s right,

title and interest in the economic, management and voting rights

in the Units as a gift to the Transferees.”   Donna’s document is

similar, except that it conveys Class D membership units.

Section 1.1 of Terry’s transfer document reads:

     Transferor * * *
     1.1.1     assigns to the Trust as a gift the number of Units
               described in Recital C above that equals one-half
               the minimum10 dollar amount that can pass free of
               federal gift tax by reason of Transferor’s
               applicable exclusion amount allowed by Code
               Section 2010(c). Transferor currently understands
               her unused applicable exclusion amount to be
               $907,820, so that the amount of this gift should
               be $453,910; and

     1.1.2     assigns to The Seattle Foundation as a gift to the
               A.Y. Petter Family Advised Fund of The Seattle
               Foundation the difference between the total number
               of Units described in Recital C above and the
               number of Units assigned to the Trust in Section
               1.1.1.

The gift documents also provide in section 1.2:

          The Trust agrees that, if the value of the Units it
     initially receives is finally determined for federal gift
     tax purposes to exceed the amount described in Section
     1.1.1, Trustee will, on behalf of the Trust and as a
     condition of the gift to it, transfer the excess Units to
     The Seattle Foundation as soon as practicable.




     10
       This is a typo. The intention of all the parties
involved was to refer to the maximum amount that could pass free
of gift tax. The Commissioner did not raise any problems that
this language might cause, and we find it to have been a mere
scrivener’s error.
                               - 12 -

The Foundations similarly agree to return excess units to the

trust if the value of the units is “finally determined for

federal gift tax purposes” to be less than the amount described

in section 1.1.1.   Donna’s documents are similar but substitute

the Kitsap Community Foundation for the Seattle Foundation.

     For the March 25, 2002 sale, both trusts split their shares

with the Seattle Foundation.   Recital C of the sale documents

reads:   “Transferor wishes to assign 8,459 Class T [or Class D]

Membership Units in the Company (the “Units”) including all of

the Transferor’s right, title and interest in the economic,

management and voting rights in the Units by sale to the Trust

and as a gift to The Seattle Foundation.”   Section 1.1 reads:

     Transferor * * *
     1.1.1     assigns and sells to the Trust the number of Units
               described in Recital C above that equals a value
               of $4,085,190 as finally determined for federal
               gift tax purposes; and

     1.1.2      assigns to The Seattle Foundation as a gift to the
                A.Y. Petter Family Advised Fund of The Seattle
                Foundation the difference between the total number
                of Units described in Recital C above and the
                number of Units assigned and sold to the Trust in
                Section 1.1.1.

Section 1.2 of the sale documents differs slightly from section

1.2 of the gift documents.   In the sale documents, it reads:

“The Trust agrees that, if the value of the Units it receives is

finally determined to exceed $4,085,190, Trustee will, on behalf

of the Trust and as a condition of the sale to it, transfer the
                              - 13 -

excess Units to The Seattle Foundation as soon as practicable.”11

Likewise, the Seattle Foundation agrees to transfer shares to the

trust if the value is found to be lower than $4,085,190.

     In exchange for the units transferred in the sale documents,

Donna and Terry, as trustees for their trusts, each executed

$4,085,190 installment notes on March 25, 2002.   The notes have a

5.37-percent interest rate and require quarterly payments of

$83,476.30 for principal and accrued interest.    The notes have a

20-year term, expiring on March 25, 2022.   Anne and the children

as trustees signed pledge agreements giving Anne a security

interest in the PFLLC shares transferred under the sale

agreements.   The pledge agreements specify:

          It is the understanding of the Pledgor and the Security
     Party [sic] that the fair market value of the Pledged Units
     is equal to the amount of the loan–-i.e., $4,085,190. If
     this net fair market value has been incorrectly determined,
     then within a reasonable period after the fair market value
     is finally determined for federal gift tax purposes, the
     number of Pledged Units will be adjusted so as to equal the
     value of the loan as so determined.

The parties agree that Donna’s and Terry’s trusts have made

regular quarterly payments since July 2002.    The trusts were able

to make payments because the PFLLC paid quarterly distributions

to all members, crafted so the amounts paid to the trusts covered

their quarterly payment obligations.




     11
       Donna’s sale documents also add “initially” before
“receives” in section 1.2.
                                 - 14 -

      The transfer documents clearly indicate that Anne intended

Donna, Terry, and the two Foundations to be substituted members,

rather than assignees; section 3 of each transfer document reads,

“Upon each Transferee’s execution of this Transfer Agreement, it

will be admitted as a Substituted Member under the terms and

subject to the requirements and limitations of the Operating

Agreement.”

      Both the gift documents and the sale documents have two

signature pages.      The first bears the signatures of Anne (as

transferor), Donna or Terry as trustee of their trusts, and the

president of the Seattle or Kitsap Community Foundation.      The

second set is the “Consent of Managers and Members.”      For the

gift documents, Anne, Donna, and Terry each signed as both

managers and members.      For the sale documents, Anne, Donna, and

Terry signed as consenting managers and members, but the Kitsap

Community Foundation president also signed as a consenting

member.

IV.   The Charities

      We have no doubt that behind these complex transactions lay

Anne’s simple intent to pass on as much as she could to her

children and grandchildren without having to pay gift tax, and to

give the rest to charities in her community.      LeMaster got the

community foundations involved because he knew Bill Sperling, who

was involved in gift planning at the Seattle Foundation, and it
                                  - 15 -

was this relationship that led to LeMaster’s suggestion to the

Petters that they create a donor-advised fund.

       Donna decided that she wanted to donate to the Kitsap

Community Foundation because she lived in Kitsap County and

wanted to make a bigger difference in a smaller community.12      She

also trusted the smaller organization because her father-in-law

was familiar with it, and her lawyer was on its board of

directors.       The Kitsap Community Foundation was tiny compared to

the Seattle Foundation and did not have the expertise to

independently vet the paperwork, so it glommed onto the same

agreements the Petters negotiated with the Seattle Foundation.

       Because the Petter gift consisted of units in the PFLLC,

rather than liquid equities or cash, the Seattle Foundation asked

outside counsel to evaluate whether accepting the units would

jeopardize the tax-exempt status of the donor-advised fund.

Michele Osborne, a lawyer at Davis Wright Tremaine LLP,

negotiated the terms of the transfer for the Seattle Foundation

and, as a practical matter, for the Kitsap Community Foundation

too.    She asked that the transfer documents make clear that the

Foundations would bear no legal costs in connection with the

gift.       She also wanted to clarify that the Foundations would be



       12
       Donna was right about being able to make a difference--in
2004 her donations of $30,000 more than doubled the Foundation’s
total annual grantmaking. In contrast, the Seattle Foundation
held more than $600 million worth of assets.
                               - 16 -

substituted members in the PFLLC, rather than assignees with no

voting rights.   Osborne also recognized that the Foundations

might need distributions from the PFLLC to cover any taxes

triggered by the transaction and warned the Petters that they

would have to monitor the investment mix of the PFLLC to ensure

that the Seattle Foundation did not become exposed to unrelated

business taxable income.13   She suggested some specific changes

to the transfer documents to address her concerns, and LeMaster

accepted them.

     On the date of the gifts and sales to the trusts, Anne sent

letters to the foundations describing her gift.   In them she

requested that the foundations establish A.Y. Petter Family

Advised Funds funded by “that portion of a gift of 940 Class D

[or Class T] Membership Units (the “LLC Units”) in Petter Family

L.L.C. that exceeds a value of $453,910 as of the closing of the

New York Stock Exchange on that date.”   In similar letters

describing the units that she was selling to the trusts, she made

a point of describing her additional gift to the Foundations of

“that portion of a transfer of 8,459 Class D [or Class T]

Membership Units (the “LLC Units”) in Petter Family L.L.C. that

exceeds a value of $4,085,190 at 12:01 am on March 25, 2002.”




     13
       Tax-exempt organizations have to pay taxes on income if
the income comes from a trade or business that is unrelated to
the organization’s charitable purpose. Secs. 511 through 513.
                                - 17 -

     Once the transfers were completed, the Petters directed many

gifts through both the Foundations to such organizations as the

Downtown Action to Save Housing, the Real Change Homeless

Empowerment Project, the Girl Scouts, Junior Achievement, the

Olympic Music Festival, the Kitsap Children’s Musical Theatre,

the Salvation Army, Habitat for Humanity, local food pantries,

and many others.

V.   Appraisal, Unit Distribution, and Audit

     During the planning stages, LeMaster had to estimate the

value of the PFLLC units so he could predict how many units might

go to the trusts and how many might go to the Foundations.     His

method was not sophisticated:    He took the market value of the

UPS stock held by the PFLLC, and discounted it by 40 percent.

Such a discount is a major goal, and often a major problem, of

contemporary estate planning.    Anne could of course have just

transferred and sold her UPS stock outright.    But doing so

would’ve enabled the Commissioner to tax her on its full value--

UPS stock is publicly traded and easy to price.    But a gift of

membership units in an LLC is harder to value because provisions

in the operating agreement restrict members’ rights to sell, and

typically no single member is allowed to sell LLC assets without

approval of the managers.   This creates the possibility of a more

taxpayer-friendly valuation.    See Estate of Erickson v.
                              - 18 -

Commissioner, T.C. Memo. 2007-107 (acknowledging the valuation

benefits associated with family limited partnerships).

     But once the documents were signed and the deal was done,

LeMaster’s estimates needed to be replaced with a formal

appraisal.   He turned to the well-known firm of Moss Adams.   On

April 15, 2002, Moss Adams sent LeMaster the 41-page “Petter

Family LLC Appraisal Report,” valuing the membership units as of

the March 22 gift to the trusts.   Moss Adams’s appraisal compared

the PFLLC to closed-end mutual funds owning domestic stock and

having little or no debt.   Closed-end funds very often trade at a

discount to net-asset value, and Moss Adams’s survey of the range

of those discounts led it to take a valuation discount of 13.3

percent,14 to value the PFLLC at $22.5 million.   From there it

lopped off an additional 46 percent for nonmarketability, reached

by averaging the marketability discounts found in two studies.

The result was a unit value of $536.20.

     On the basis of the Moss Adams valuation, LeMaster allocated

the shares transferred by Anne’s gift and sale:




     14
       Moss Adams determined a general market discount of 3.7
percent for closed-end funds and added 9.6 percent to the
discount rate to account for the PFLLC’s “unique risk factors.”
(The 9.6 percent represented 10 percent of the PFLLC’s discounted
value.) Unique risk factors were those for which, according to
Moss Adams, the PFLLC had more risk than the companies in the
market study--notably lack of asset diversification.
                              - 19 -




          Recipient            Class of Unit      Number of Units
Terry’s trust                          T             8,465.31
Donna’s trust                          D             8,465.31
Seattle Foundation                     T              933.689
Seattle Foundation                     D               840.22
Kitsap Community Foundation            D               93.469


Anne kept the rest:

         Class of Units                     Number of Units
            Class A                              452.671
            Class T                             1,691.44
            Class D                             1,691.44
                Total                          3,835.551

This left the parties with the following interests in the PFLLC:

        Name              Total Number of
                                                Percent Interest
                            Units Owned
        Anne                  3,835.551              16.9463%
    Terry’s trust             8,465.311              37.4016
    Donna’s trust             8,465.311              37.4016
 Seattle Foundation           1,773.909               7.8375
  Kitsap Community
                                 93.469               0.413
    Foundation
                               - 20 -

Although Anne now had a much smaller interest than either of the

trusts, she owned all the class A shares, entitling her to elect

a manager with veto power over any other managers.    And the

Foundations both had minority interests, allowing Terry’s and

Donna’s trusts to retain control over votes for the managers of

the Class T and D units.

     Anne timely filed a gift tax return in August 2003.    She hid

nothing:    On that return, she listed gifts worth $453,910 to

Donna’s and Terry’s trusts; gifts worth $50,128, $450,618, and

$450,618 to the Seattle Foundation; and a gift worth $50,128 to

the Kitsap Community Foundation.    For all of these gifts, her

return indicated that the gifts were units in the PFLLC and “the

value of the limited liability company is based on the fair

market value of the underlying assets with a 46% non-

marketability discount and a 13.3% net asset value adjustment

applied.”    She also listed several cash gifts of $11,000 or less

to her children, grandchildren, and son-in-law.

     She even attached to the return a disclosure statement that

included the formula clauses from the transfer documents, a

spreadsheet of the PFLLC unit allocation, the organizing

documents for the PFLLC, the trust agreements and transfer

documents, letters of intent to the Seattle Foundation and the

Kitsap Community Foundation, the Moss Adams appraisal report,

annual statements of account for her UPS stock, and Forms 8283,
                                 - 21 -

Noncash Charitable Contributions, disclosing her gifts to the

Seattle Foundation and the Kitsap Community Foundation.

     The Commissioner’s audit began in January 2005.        The parties

agree that throughout the audit Anne “complied with every request

for witnesses, information, documents, meetings or interviews” in

a timely manner.   The parties were unable to resolve the issues

during the examination, and in November 2006 the Commissioner

sent Anne a notice of deficiency in gift tax for 2002.

     The Commissioner had several quarrels.        First, he believed

the correct value of a single class T or D membership unit in the

PFLLC was much higher than reported.        He thought it should be

$794.39, which would balloon the total value held by the trusts

and the charities:

                     Number of            Moss Adams
     Owner                                                IRS Value
                       Units                 Value
Terry’s trust        8,465.311       $4,539,099.22      $6,724,758.41
Donna’s trust        8,465.311        4,539,099.22       6,724,758.41
Seattle
                     1,773.909             951,170.01    1,409,175.57
  Foundation
Kitsap
  Community            93.469               50,118.08       74,250.84
  Foundation


     LeMaster had anticipated that the final unit value might be

different from his or Moss Adams’s, and thought he had accounted

for it with all the formula clauses we’ve already described.

Under these clauses, a revaluation would trigger a reallocation
                              - 22 -

of shares from the trusts to the charities, creating–-LeMaster

thought--a greater charitable deduction for Anne but no

additional gift tax.   The Commissioner thinks these formula

clauses are invalid.   If he is right, the units might still be

reallocated to the charities, but Anne would not get an

additional charitable deduction.15   This also would mean that the

shares sold to the trusts were sold for “less than full and

adequate consideration,” and thus were transferred partly by sale

and partly by an additional $1,967,128 gift to each trust,

computed by deducting the price of the installment notes from the

fair market value of the shares transferred.   The Commissioner

thus concluded that Anne had made gifts in the following amounts

to the two trusts:




     15
       The Commissioner did allow an additional $481,890
deduction for the increased value of the shares already given to
the foundations. There appears to be a misplaced decimal in the
notice of deficiency (under “Explanation of Adjustments,” Issue
1, Class D Units, March 25 Gifts). The Commissioner correctly
calculates the additional deduction under issue 2, however, so
the typo does not affect our holding.
                               - 23 -

                           Original
       Transaction                        Adjusted Gift     Difference
                             Gift
Gift to Terry’s
                           $453,910           $672,462       $218,552
  trust
Sale to Terry’s
                              -0-           1,967,128        1,967,128
  trust
Gift to Donna’s
                            453,910            672,462        218,552
  trust
Sale to Donna’s
                              -0-           1,967,128        1,967,128
  trust
  Total taxable
                            907,820         5,279,180        4,371,360
    gift

       Anne filed a timely petition with us, and the parties agreed

on a final valuation of $744.74 per PFLLC unit.      After

reallocation at this value, the units will come to rest, with the

Seattle Foundation owning the largest overall percentage

(although not a majority of any single class):

          Name            Total Units Owned        Percent Interest
Anne                          3,835.551                   16.946%
Terry’s trust                 6,094.879                   26.929
Donna’s trust                 6,094.879                   26.929
Seattle Foundation            6,277.730                   27.736
Kitsap Community
                                330.512                    1.460
  Foundation

       We are asked to decide whether to honor the formula clause

for the gift and the sale; if we honor them, we must also decide

when Anne may take the charitable contribution deduction

associated with the additional units going to the Foundations.
                                - 24 -

                                OPINION

     Anne immediately takes the defensive, denying that the

clauses are void because of public policy.    She points to state

law, saying that this clause works under Washington property laws

to pass a particular dollar value of money to intended

beneficiaries.   Because it works under state law, she says, it

should also be honored under Federal gift tax law as a transfer

in 2002.

     The Commissioner opens fire, saying that the formula clauses

are void because they are contrary to public policy, which would

create an increased gift tax liability for Anne.16

     This is an old argument.    But before launching into our

analysis, we begin with some background on the gift tax.    Section

2501(a)(1) lays the groundwork for a tax “imposed for each

calendar year on the transfer of property by gift during such

calendar year by any individual, resident or nonresident.”

Section 2502(c) tells us the donor pays the tax, not the donee.

Section 2502 explains the cumulative aspects of gift tax, whereby

the tax rate for a gift is set by looking at that year’s gifts in

relation to the donor’s lifetime giving.    Gifts of $10,000 per


     16
       In the midst of this back-and-forth is an argument about
who should bear the burden of proof under section 7491. The
issues in this case, however, are mostly a matter of applying law
to uncontested facts, so we don’t have to address who bears the
burden of proof. See Estate of Christiansen v. Commissioner, 

, 8 n.7 (2008), affd. ___ F.3d___(8th Cir., Nov. 13, 2009).
                              - 25 -

donee per year, increased for inflation, are excluded from the

lifetime cumulative total.   Sec. 2503(b).   Gifts for educational

or medical expenses are also excluded.   Sec. 2503(e).

     Perhaps the most important section for our purposes,

however, is section 2505, the unified credit against gift tax.

In 2002, the year Anne made her gifts, the unified credit allowed

a donor to make lifetime tax-free gifts of up to $1 million.     At

the time she made the gifts, Anne believed she had $907,820

remaining of her unified credit; and the Commissioner nowhere

disputes this.

I.   Savings Clauses: Procter and Its Progeny

     The parties’ argument in this case harks back to the old

case of Commissioner v. Procter, 

(4th Cir. 1944),

revg. a Memorandum Opinion of this Court.    Procter assigned

remainder interests in two trusts to a new trust for the benefit

of his children.   After his death the assets would go to his

children if he outlived his mother and, for one of the trusts, if

he was at least 40 when she died.   The new trust would also repay

a note to Procter’s mother at her death if he was still alive.

The trust document had a clause adjusting the gift:

     [I]t is agreed by all the parties hereto that in that event
     the excess property hereby transferred which is decreed by
     such court to be subject to gift tax, shall automatically be
     deemed not to be included in the conveyance in trust
     hereunder and shall remain the sole property of [the
     taxpayer].
                              - 26 -

  The Fourth Circuit’s opinion in the case became the

cornerstone of a body of law regarding “savings clauses”–-

adjustment clauses requiring that any gift subject to gift tax

revert back to the donor.17

     The Fourth Circuit’s opinion rested on two propositions that

now frequently appear in gift and estate tax cases involving

adjustment clauses.   The first is that the gift was a “present

gift of a future interest in property” and that the formula

therefore created a condition subsequent.

was that the clause was “contrary to public policy”

for three reasons:

     •    The clause had a “tendency to discourage the collection
          of the tax,” since efforts to collect would simply undo
          the gift;

     •    The effect of the clause would be to “obstruct the
          administration of justice by requiring the courts to
          pass upon a moot case;” and

     •    A judicial proclamation on the value of the trust would
          be a declaratory judgment, because “the condition is
          not to become operative until there has been a
          judgment; but after the judgment has been rendered it
          cannot become operative because the matter involved is
          concluded by the judgment.”

       In Christiansen, 

, the daughter specified
that if her disclaimer failed to be a “qualified disclaimer,” she
would take all steps necessary to make it a qualified disclaimer.
We called this a savings clause, but it is clearly not the same
kind of adjustment clause at issue in this case.
                               - 27 -

       The issue came up again when another taxpayer tried to use a

similar clause, this time in a sale.    This adjustment clause

read: “‘If the fair market value of The Colorado Corporation

stock * * * is ever determined by the Internal Revenue Service to

be greater or less than the fair market value determined * * *

above, the purchase price shall be adjusted to the fair market

value determined by the Internal Revenue Service.’”     King v.

United States, 

, 703-04 (10th Cir. 1976).    The Tenth

Circuit found this clause, called a “price-adjustment clause”

because it adjusts the consideration paid in a sale, to be valid.

The Tenth Circuit based its decision on factual determinations

that the stock was difficult to value and the sale occurred in

the ordinary course of business with no donative intent.

       The Tenth Circuit was on its own for a long time, however;

between 1976 and 2006, courts refused to honor either savings

clauses or price-adjustment clauses.    Knight v. Commissioner, 

, 515 & n.4, 516 (2000) (giving no effect to transfer of

FLP shares “equal in value” to $600,000 to trusts, when taxpayers

instead reported on tax returns gift of 22.3-percent interest in

FLP and argued at trial that true value of shares was lower than

that reported in the transfer documents); Ward v. Commissioner,

(1986) (relying on public-policy arguments from

Procter, giving no effect to clause requiring donors to adjust
                              - 28 -

number of shares so total value is $50,000); Harwood v.

Commissioner, 

(1984) (giving no effect to clause

requiring adjustment if “in the opinion of the Attorney for the

trustee a lower value is not reasonably defendable”), affd.

without published opinion 

(9th Cir. 1986).     Even

the Commissioner weighed in, releasing Revenue Ruling 86-41,

1986-1 C.B. 300, which found no difference between a savings

clause like the one in Procter and the price-adjustment clause

like the one in King that required the donee to pay the donor an

amount equal to the excess value transferred as a gift.     The

Commissioner determined that both types of clause were invalid

and would be ignored during audits.

II.   Formula Clauses

      Creative tax planners found more sophisticated ways to

accommodate uncertain valuations in wealth transfers.    In 2003,

we decided a case in which transfer documents specified that the

children of the taxpayer should receive a gift having a “fair

market value” of $6,910,933; anything in excess of that up to

$134,000 would go to a local symphony, and all the rest would go

the Communities Foundation of Texas, Inc.    McCord v.

Commissioner, 

, 364 (2003), revd. 

(5th

Cir. 2006).   Much like Anne’s gift the taxpayer’s gift was of

shares in a limited liability partnership.

  The

donees allocated the shares amongst themselves, and they applied
                                 - 29 -

a large discount.

  Unlike the PFLLC, however, the

partnership retained the rights to buy out the charitable

interests; once the charities had been cashed out, the

partnership no longer owed the charities fiduciary duties and the

charities lost their rights to demand a reallocation.

  In a divided opinion, we found that the value of

the gift was higher than the original appraisal.

  We

also held that the formula did not reallocate the shares later,

but worked only to allocate shares on the basis of the parties’

estimate of their value at the time of the gift rather than later

on.

   We did not find it necessary to consider

Procter.

      The Fifth Circuit reversed because, it held, we had

impermissibly looked at events occurring after the sale date.

McCord v. 

.      The Court pointed to

our reliance on a later agreement between McCord’s children and

the charities that translated the dollar formula in the transfer

documents into percentage interests in the partnership, when we

should have relied only on the initial transfer documents.

also noted with approval Judge Foley’s finding

in his dissent that the Commissioner had not met his burden of

proof.

   (The Commissioner had dropped the Procter-

like arguments on appeal.

     We have since looked at adjustment clauses in Estate of

Christiansen v. Commissioner, affd. ___ F.3d ___ (8th Cir., Nov.

13, 2009).    There, the taxpayer’s daughter structured a

disclaimer of her inheritance to keep part of it and give the

rest to charity.    The formula was quite complicated:

     Christine Christiansen Hamilton hereby disclaims that
     portion of the Gift determined by reference to a fraction,
     the numerator of which is the fair market value of the Gift
     (before payment of debts, expenses and taxes) on April 17,
     2001, less Six Million Three Hundred Fifty Thousand and
     No/100 Dollars ($6,350,000.00) and the denominator of which
     is the fair market value of the Gift (before payment of
     debts, expenses and taxes) on April 17, 2001 (“the
     Disclaimed Portion”). For purposes of this paragraph, the
     fair market value of the Gift (before payment of debts,
     expenses and taxes)on April 17, 2001, shall be the price at
     which the Gift (before payment of debts, expenses and taxes)
     would have changed hands on April 17, 2001, between a
     hypothetical willing buyer and a hypothetical willing
     seller, neither being under any compulsion to buy or sell
     and both having reasonable knowledge of relevant facts for
     purposes of Chapter 11 of the [Internal Revenue] Code, as
     such value is finally determined for federal estate tax
     purposes.

   The Commissioner quibbled with this clause because he

said it worked to reallocate gifts after an audit.   The

Commissioner invoked the standard Procter arguments to try to

defeat the additional charitable deduction claimed by the estate;

viz., that the adjustment clause was a condition subsequent and

that it was void as contrary to public policy.

     But we sided with the taxpayer.    We held that the transfer

to charity was not contingent because it remained 25 percent of

the total estate in excess of $6,350,000, regardless of the
                                - 31 -

estate’s ultimate valuation.

  We also found that

the public-policy arguments were undermined by Commissioner v.

Tellier, 

, 694 (1966), where the Supreme Court warned

against invoking public-policy exceptions to the Code too freely.

The “frustration [of public policy] that would be caused by

allowing the contested deduction must be severe and immediate.”

Christiansen, 

.    In Christiansen, we not only held

the clause not to be void as against public policy, but concluded

instead that public policy weighed in favor of giving gifts to

charities.   We also thought the Commissioner’s fears that

charities would be abused by low-ball estate appraisals were

exaggerated.   Executors, directors of charitable foundations who

owe fiduciary duties to protect charitable interests, and state

attorneys general would all have some incentive to police low-

ball appraisals.

     Although Christiansen was a split decision on other issues,

we were unanimous in concluding that “This case is not Procter.”

Drawing the Line

     To reach a reasonable conclusion in this case, we start with

two maxims of gift-tax law:    A gift is valued as of the time it

is completed, and later events are off limits.     Ithaca Trust Co.

v. United States, 

, 155 (1929).     And gift tax is
                                - 32 -

computed at the value of what the donor gives, not what the donee

receives.

held in McCord that what the taxpayer had

given was a certain amount of property; and that the appraisal

and subsequent translation of dollar values (what the donor gave

each donee) into fractional interests in the gift (what the

donees got) was a later event that a court should not 

.   In Christiansen, we also found that the later

audit did not change what the donor had given, but instead

triggered final allocation of the shares that the donees

received.    

.   The distinction is between a donor

who gives away a fixed set of rights with uncertain value--that’s

Christiansen--and a donor who tries to take property back--that’s

Procter.    The Christiansen formula was sufficiently different

from the Procter formula that we held it did not raise the same

policy problems.

     A shorthand for this distinction is that savings clauses are

void, but formula clauses are fine.      But figuring out what kind

of clause is involved in this case depends on understanding just

what it was that Anne was giving away.     She claims that she gave

stock to her children equal in value to her unified credit and

gave all the rest to charity.    The Commissioner claims that she

actually gave a particular number of shares to her children and

should be taxed on the basis of their now-agreed value.
                                 - 33 -

      Recital C of the gift transfer documents specifies that Anne

wanted to transfer “940 Class T [or Class D] Membership Units” in

the aggregate; she would not transfer more or fewer regardless of

the appraisal value.18   The gift documents specify that the trusts

will take “the number of Units described in Recital C above that

equals one-half the * * * applicable exclusion amount allowed by

Code Section 2010(c).”      The sale documents are more succinct,

stating the trusts would take “the number of Units described in

Recital C above that equals a value of $4,085,190.”      The plain

language of the documents shows that Anne was giving gifts of an

ascertainable dollar value of stock; she did not give a specific

number of shares or a specific percentage interest in the PFLLC.

Much as in Christiansen, the number of shares given to the trusts

was set by an appraisal occurring after the date of the gift.

This makes the Petter gift more like a Christiansen formula

clause than a Procter savings clause.

IV.   Public Policy Again

      Because this formula clause is not sufficiently similar to

that in Procter, we must first ask whether to apply policy

      18
       The contract includes a choice-of-law provision
specifying use of Washington law. Under Washington contract law,
courts should not rely on contract recitals absent ambiguity in
the operative clauses of the contract. Brackett v. Schafer, 

, 297-98 (Wash. 1953). However, the operative provisions
of this contract refer to Recital C, and would be ambiguous if we
did not give consideration to the recital. We therefore hold
that the Recital C clauses in both the gift and sale documents
should be given effect.
                              - 34 -

arguments at all.   As we noted in Christiansen, there is a

general public policy in favor of encouraging gifts to charities.

See United States v. Benedict, 

, 696-97 (1950).     And

the facts in this case show charities sticking up for their

interests, and not just passively helping a putative donor reduce

her tax bill.   The foundations here conducted arm’s-length

negotiations, retained their own counsel, and won changes to the

transfer documents to protect their interests.     Perhaps the most

important of these was their successful insistence on becoming

substituted members in the PFLLC with the same voting rights as

all the other members.   By ensuring that they became substituted

members, rather than mere assignees, the charities made sure that

the PFLLC managers owed them fiduciary duties.19    In McCord, the

taxpayers built into the partnership agreement restrictions on

charitable interests in the partnership (i.e., limited voting


     19
       The Operating Agreement specifies that Managers are to
“have the same fiduciary responsibilities to the Company and its
Members * * * as a partner has to a partnership and its
partners.” The Operating Agreement specifies the use of
Washington law; under Washington law, partners owe the
partnership and the partners “the duty of loyalty and the duty of
care” and can be sued for breach of either. Wash. Rev. Code Ann.
secs. 25.05.165(1), 25.05.170 (West 2005). The duty of loyalty
prevents partners from coopting partnership business
opportunities, transacting business with the partnership as an
adverse party, and competing with the partnership.

duty of care prevents a partner from engaging
in grossly negligent or reckless conduct, intentional misconduct,
or knowing violations of the law.

also have a duty of good faith and fair dealing.

35 -

rights and the right of other partners to buy out the charitable

interests at any time).   

.   In contrast, Anne’s

gift made the charities equal members in the PFLLC, giving the

charities power to protect their interests through suits for

breach of the operating agreement or breach of a manager’s

fiduciary duties, as well as through the right to vote on

questions such as amending the operating agreement and adding new

members.   These features leave us confident that this gift was

made in good faith and in keeping with Congress’s overall policy

of encouraging gifts to charities.

     As in Christiansen, we find that this gift is not as

susceptible to abuse as the Commissioner would have us believe.

Although, unlike Christiansen, there is no executor to act as a

fiduciary, the terms of this gift made the PFLLC managers

themselves fiduciaries for the foundations, meaning that they

could effectively police the trusts for shady dealing such as

purposely low-ball appraisals leading to misallocated gifts.    See

Wash. Rev. Code Ann. secs. 25.05.165(1), 25.05.170 (West 2005).

The directors of the Seattle Foundation and the Kitsap Community

Foundation owed fiduciary duties to their organizations to make

sure that the appraisal was acceptable before signing off on the

gift–-they also had a duty to bring a lawsuit if they later found

that the appraisal was wrong.    See

1986).
                                 - 36 -

      We could envision a situation in which a charity would

hesitate to sue a living donor, and thus risk losing future

donations or the donor’s goodwill.        However, gifts are

irrevocable once completed, and the charities’ cause of action

most likely would have been against the trusts, rather than

against Anne, since the trusts held the additional shares to

which the charities laid claim.

     The Commissioner himself could revoke the foundations’

501(c)(3) exemptions if he found they were acting in cahoots with

a tax-dodging donor.   See, e.g., sec. 503(b).       And Washington’s

attorney general is also charged with enforcing charities’

rights.   See Wash. Rev. Code Ann. secs. 11.110.010, 11.110.120

(West 2006).   We simply don’t share the Commissioner’s fear, in

gifts structured like this one, that taxpayers are using

charities just to avoid tax.20    We certainly don’t find that these

kinds of formulas would cause severe and immediate frustration of

the public policy in favor of promoting tax audits.        See 

.

     Applying the Supreme Court’s admonition to the second and

third policy concerns in Procter, we find a similar lack of

“severe and immediate” threat to public policy.        We do not fear


     20
       Although we don’t look at subsequent events when
evaluating the bona fides of a gift, we note favorably that at
the time of trial the taxpayer was in the process of reallocating
these shares in conformance with the adjusted appraisal.
                                  - 37 -

that we are passing on a moot case; because of the potential

sources of enforcement, we have little doubt that a judgment

adjusting the value of each unit will actually trigger a

reallocation of the number of units between the trusts and the

foundation under the formula clause.       So we are not issuing a

merely declaratory judgment.

       Anne also points out several other instances in which the

IRS and Congress specifically allow formula clauses like this

one.       She argues that if Congress allows these clauses in other

contexts, there can’t be a general public policy against using

formula provisions.       For instance, the following sections

specifically sanction formula clauses:

       •       Section 1.664-2(a)(1)(iii), Income Tax Regs., provides:
               “The stated dollar amount [of a payment to the
               recipient of a charitable remainder annuity trust] may
               be expressed as a fraction or a percentage of the
               initial net fair market value of the property
               irrevocably passing in trust as finally determined for
               Federal tax purposes.” See also Rev. Rul. 72-395, sec.
               5.01, 1972-2 C.B. 340, 344 (including acceptable sample
               formula clause).

       •       Revenue Procedure 64-19, 1964-1 C.B. (Part 1) 682,
               sanctions the use of formula clauses in marital
               deduction bequests.

       •       The Commissioner’s generation-skipping transfer
               regulations provide that executors may “allocate the
               decedent’s GST exemption by use of a formula.” Sec.
               26.2632-1(d)(1), GST Regs.

       •       The gift-tax qualified-disclaimer regulations include
               an example of an allowable fractional formula where the
               numerator is the “smallest amount which will allow A’s
               estate to pass free of Federal estate tax and the
                              - 38 -

          denominator is the value of the residuary estate.”
          Sec. 25.2518-3(d), Example (20), Gift Tax Regs.

     •    Finally, the gift-tax regulations’ definition of
          qualified annuity interests says that the “fixed
          amount” to be given to the beneficiary can include “a
          fixed fraction or percentage of the initial fair market
          value of the property transferred to the trust, as
          finally determined for federal tax purposes.” Sec.
          25.2702-3(b)(1)(ii)(B), Gift Tax Regs.

     The Commissioner argues that the validity of these other

types of formula clauses tells us nothing about the validity of

the formula clause at issue here.   He says:   “The absence of an

authorization of the formula clause under the instant situation

is intentional, as the use of formula clauses in this situation

is contrary to public policy, and frustrates enforcement of the

internal revenue laws.”   He seems to be saying that Congress and

the Treasury know how to allow such gifts, and their failure to

explicitly allow formula clauses under the Code and regulations

governing gift tax means that they have implicitly banned them.

But the Commissioner does not point us to any Code section or

regulation generally prohibiting formula clauses in gift

transfers, or denying charitable deductions for donors who use

these formula clauses in transfers to charities.   The

Commissioner also fails to address the argument that Anne is

actually making; the mere existence of these allowed formula

clauses, which would tend to discourage audit and affect

litigation outcomes the same way as Anne’s formula clause, belies
                                - 39 -

the Commissioner’s assertion that there is some well-established

public policy against the formula transfer Anne used.

     The Commissioner does distinguish all the similar clauses

used elsewhere in the tax regulations as involving situations

where money passing under those formulas will not escape

taxation; money passing through a gift tax-free by reason of the

marital deduction, for instance, will probably be taxed when the

surviving spouse dies.     But this is not always true.   Consider

section 664, governing charitable remainder trusts, in which the

remaining corpus of the trust will pass to charity tax-free, as

it does in the gift here.    Sec. 664(c).    We are therefore not

persuaded that this distinction works to separate valid from

invalid formula clauses.

     Another difference the Commissioner cites is that the

sanctioned clauses “involve the assignment of a fixed percentage

or fraction of a certain value, not an open ended amount

exceeding a certain dollar value.”       Again, we fail to see how

Anne’s gift to the trusts was not an “assignment of a * * *

fraction of a certain value.”    Anne’s initial gift to her

children could have been expressed as a gift of the number of

units equal to the lesser of 940 or the fraction with the

numerator of $453,910 and the denominator of the value of a unit

as finally determined for Federal tax purposes.      Her gift to the

foundations would then be expressed as 940 less the fraction
                              - 40 -

where the numerator is $453,910 and the denominator is the value

of a unit as finally determined for Federal tax purposes, or:

                        453,910
                      ___________
             940 -    (Value of a      =   charitable gift
                     unit for tax
                       purposes)


The sales could be expressed in a similar mathematical formula.

In fact, only the charities could take a gift of an “open ended

amount;” the children’s gifts and sales were capped at the dollar

amounts set in the transfer documents.     We are again unpersuaded.

We refuse to hold against Anne simply because she chose to

express her intended allocation of the gift in plain English,

rather than the kind of mathematical formula outlined in

regulations for other types of transfers.

     In summary, Anne’s transfers, when evaluated at the time she

made them, amounted to gifts of an aggregate and set number of

units, to be divided at a later date based on appraised values.

The formulas used to effect these transfers were not void as

contrary to public policy, as there was no “severe and immediate”

frustration of public policy as a result, and indeed no

overarching public policy against these types of arrangements in

the first place.
                                - 41 -

V. Timing

     We finally face the difficult question of evaluating when

Anne may claim a deduction for her gift of the additional units

to the Foundations.    The amount of a charitable deduction is the

fair market value of the property donated at the time of the

contribution.    Sec. 1.170A-1(c), Income Tax Regs.   But the

regulations also specify that, absent the delivery of an endorsed

stock certificate directly to the donee or its agent, the date of

a gift of stock is the date the stock is transferred on the books

of the issuing corporation.     Sec. 1.170A-1(b), Income Tax Regs.

We don’t know when exactly the PFLLC transferred the shares on

its books.

     Here we have a conundrum, for the events of the gift

happened as follows:

     •      March 22, 2002–-Gift of 940 shares, split between
            trusts and foundations. Letters of intent to
            foundations.

     •      March 25, 2002–-Sale to trusts

     •      April 15, 2002–-Moss Adams appraisal report

     •      Later in 2002–-The Seattle Foundation “books” the value
            of the allocated shares on the basis of the Moss Adams
            appraisal. The Kitsap Community Foundation’s records
            recognize the A.Y. Petter Family Advised Fund as of
            December 31, 2002. In May 2003, Richard Tizzano,
            president of the Kitsap Community Foundation, signed
            Anne’s Form 8283 for 2002, acknowledging receipt of
            PFLLC units on March 22, 2002.

     •       Fall 2007–-Bill Sperling notified of new appraisal for
             PFLLC units and beginning of reallocation.
                                - 42 -

     •    February 2008–-Tax Court trial.    Reallocation ongoing.

Anne says she should be able to take the entire charitable

deduction at the time of the gift, in 2002.    The Commissioner

says that only some of the stock went to the charities in 2002,

which means Anne or her estate should take a deduction for the

gift of the rest of the stock in some later year not before us.

     Section 25.2511-2(a), Gift Tax Regs., provides:    “The gift

tax is not imposed upon the receipt of the property by the donee,

nor is it necessarily determined by the measure of enrichment

resulting to the donee from the transfer, nor is it conditioned

upon ability to identify the donee at the time of the transfer.”

Anne made a gift for which, at the time of transfer, the

beneficiaries could be named but the measure of their enrichment

could not yet be ascertained.    The Commissioner is comfortable

with this ambiguity when considering whether the gift is

completed or not, and states that tax treatment should not change

simply because a donee’s identity becomes known at a date later

than the date of the transfer.    By analogy, we see no reason a

donor’s tax treatment should change based on the later discovery

of the true measure of enrichment by each of two named parties,

one of whom is a charity.   In the end, we find it relevant only

that the shares were transferred out of Anne’s name and into the

names of the intended beneficiaries, even though the initial

allocation of a particular number of shares between those
                              - 43 -

beneficiaries later turned out to be incorrect and needed to be fixed.

     The Commissioner bases his argument partly on Procter, in

which a later audit acted as a condition subsequent to undo part

of the 

, although he does distinguish the

two by saying that the reallocation provisions in Anne’s transfer

documents were conditions precedent.   Anne disputes this, saying,

“The rights Mrs. Petter transferred to the charities were fixed

and determinable on the valuation date.   * * *   There were no

conditions precedent that increased, decreased, terminated, or

modified those rights.”   This must be true; Anne transferred a

set number of shares, to be divided according to valuations set

at a later date.   Regardless of what might trigger a

reallocation, Anne’s transfer could not be undone by any

subsequent events.

     Washington state law confirms this–-under Washington law,

courts are “‘“keen-sighted” to discover an intention to make an

unconditional and immediate gift to a charity,’” and will find a

condition precedent only when the gift document expresses a clear

intention to do so.   Sisters of Charity of the House of

Providence v. Columbia County Hosp. Distr. (In re Trust of

Booker), 

, 323-24 (Wash. Ct. App. 1984) (quoting

Garland v. Seattle Trust Co., 

, 744 (Wash. 1918); see

also Richardson v. Danson, 

, 805 (Wash. 1954) (“‘It

has been said that a condition which would ordinarily be
                               - 44 -

considered precedent may be construed as a condition subsequent

where the gift is to a charity’” (quoting Butts v. Seattle-First

Natl. Bank (In re Quick’s Estate), 

, 491 (Wash.

1949)).    We are also not convinced that the reallocation was a

condition precedent, based on Washington law holding that

conditions precedent require the donee to perform some action

before the property will become vested and because Anne never

expressed an intention to create anything but an immediately

vested gift.   See 

.

     The allocation of units based on the Moss Adams appraisal,

as an event occurring after the date of the gift, is outside the

relevant date of the transfer, so anything that worked to change

that allocation after the fact is not relevant to our current

inquiry.   We also don’t consider dispositive the date when the

charities “booked” the value of the units, or the amounts the

charities booked at the time of the initial transfer, both

because those actions also occurred after the transfer and

because Anne had no control over the Foundations’ internal

accounting practices.   We therefore agree with Anne that the

appropriate date of the gift for tax purposes is March 22, 2002.

The parties will submit calculations reflecting the amount of the

gift and corresponding charitable deduction.


                                     Decision will be entered

                                under Rule 155.