On Discounted Partnership Interests and Adequate Consideration

Early cases involving the government\u27s invocation of section 2036(a) to combat the use of family limited partnerships to intentionally suppress the value of a decedent\u27s gross estate focused on whether the decedent retained the beneficial enjoyment of the partnership property under section 2036(a)(1) or, perhaps, the right to control such beneficial enjoyment under section 2036(a)(2). In recent years, however, the focus of the section 2036(a) inquiry in the family limited partnership context has shifted almost exclusively to the issue of whether the decedent\u27s contribution of property to the entity satisfies the statute\u27s parenthetical exception for a bona fide sale for an adequate and full consideration in money or money\u27s worth. This article details how this statutory exception-meant to exempt from estate tax scrutiny only those transfers that do not serve to deplete the transferor\u27s gross estate-has come to be interpreted as applying to transfers that intentionally depress the transfer-tax value of the decedent\u27s assets, so long as (1) the decedent received a pro-rata partnership interest as a result of the contribution, and (2) there existed as at least one legitimate and substantial non-tax reason for forming the entity. The article highlights the shortcomings of such an expansive interpretation of the section 2036(a) exception and then offers an interpretation that is more consistent with the exception\u27s statutory text, regulatory guidance, and legislative purpose