Proposed Regulations May Spark Year-End Transfers

Treasury has recently issued Proposed Regulations under Section 2704. Section 2704 affects the valuation of interests in corporations and partnerships. Most notably, the proposed changes would disregard restrictions on liquidation that are not mandated by federal or state law and disregard the ability of most nonfamily member owners to block the removal of covered restrictions. Combining these two rules may result in gifts of interests in family held entities to be valued in a fashion similar to the “fair value” standard rather than the “fair market value” standard previously applicable.

The Proposed Regulations rules are proposed to apply transfers occurring after the date the regulations are published as final regulations. Comments will be considered at a public hearing currently for December 1, 2016. So, the Proposed Regulations should not take effect until after that date – probably no earlier than 2017.

One should make a careful determination whether they should make transfers of interests in closely-held entities before the end of 2016 to avoid the application of the proposed rules to the valuation of the gift. Even those transfer could be caught by the proposed rules if the transferring person dies within three years of the transfer and after the date that the proposed regulations become final.

See, Proposed Section 2704 Regulations Would Impose Major Restrictions on Valuation Discount Planning for a more detailed discussion of the proposal.