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June 2017 | Issue 86 Background Constellis Group,  Inc. is a private security firm.  In December 2013, the Company formed an Employee Stock Ownership Plan (“ESOP”), which purchased 100% of Constellis’s voting stock.  Wilmington Trust NA was named Trustee of the ESOP.  Less than a year after the ESOP was created, the ESOP sold all […] More...


March 2017 | Issue 85 Introduction Richard and Steven Parker are brothers who ran a flower business in Scotch Plains, New Jersey.  Richard is the President of Parker Interior Plantscapes (“PIP”), which installs and services plants and flowers in commercial settings.  Steven is the President of Parker Wholesale Florists (“PWF”), which is a garden center.  […] More...

Dell Appraisal Spawns a Multitude of Valuation Approaches

February 2017 | Issue 84 Introduction A Delaware Chancery appraisal case involving computer company Dell Inc. gave rise to a multitude of valuation measurements.  It is instructive to see how the court sorted through them in coming up with its final appraisal conclusion.  The case is In re Appraisal of Dell Inc., 2016 Del. Ch. LEXIS […] More...

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Tax Court Says OK to 50% Valuation Discount

July, 2006 | Issue 4

In a recent Tax Court case, a successful showing of “arm’s-length” transactions helped buttress taxpayers’ use of an appraisal featuring a 50% lack-of-marketability discount.

Members of the Huber family made gifts of stock of J. M. Huber Corp. during the period 1997 to 2000. The IRS believed that the value of the stock was under reported on the gift tax returns. The result was a Tax Court case called Huber, et al. v. Commissioner (T.C. Memo. 2006-960), decided May 9, 2006.

J. M. Huber Corp. (Huber) is a privately-held diversified company based in Edison, New Jersey. The company at the time in question had annual sales of in excess of $500 million and approximately 250 shareholders. It is one of the largest family-owned companies in America.

The donors of the Huber stock valued the stock for gift tax purposes based on a report prepared by an independent appraiser. The company had engaged this appraiser since 1993 to prepare annual valuations of its stock. These valuations were used for a variety of purposes, including; (1) valuing gifts of Huber shares made to non-profit organizations, (2) valuing stock options granted to the company’s CEO, (3) fixing the compensation of Huber’s board members, (4) evaluating the performance of Huber as a whole, (5) valuing shares that are bought back by Huber from its shareholders, and (6) valuing shares in transactions between Huber shareholders.

The appraiser had used a consistent method for preparing its valuation. It compared Huber to comparable publicly-traded companies. It then applied a 50% lack-of-marketability discount from the freely-traded value of the shares to arrive at its valuation.

IRS Position
The IRS agreed with the freely-traded values of Huber shares established by the appraiser. They took issue, however, with the 50% lack-of-marketability discount. They proposed discounts ranging from 25% to 45% during the years in question.

The IRS also rejected the appraiser’s values on the grounds that sales at these values were not arm’s-length transactions.

Court Analysis
The Court began its analysis based on the following premise: “In determining the value of unlisted stocks, actual arm’s-length sales of the stock in the normal course of business within a reasonable time before or after the valuation date are the best criteria of market value.”

The Court then proceeded to examine some of the more than 90 transactions that had taken place in Huber stock from 1994 to 2000, all based on the appraiser’s value. It examined the relationships between the parties, the presence or lack of compulsion on the part of the seller, the reasonableness of the shareholders’ reliance on the appraiser’s value, and the intent of the parties with respect to the sales.

The Court concluded that while there were close family relationships between parties in some of the sales, this is neutralized by the fact that many of the transactions took place between parties that were hardly related or unrelated and who had fiduciary obligations to obtain the best price.

The Court also satisfied itself as to the lack of compulsion on the part of the sellers, their intent, and the degree to which they were informed of the appraiser’s opinion.

Having satisfied itself on these matters, the Court expressed itself as follows; “We conclude that the sales of Huber stock established in the record are arm’s-length sales that demonstrate the best reference for the valuation of Huber shares on petitioners’ gift tax returns.”