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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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The Wandry Taxpayers Found The Formula

April 2012 | Issue 57


Taxpayers making gifts of hard-to-value property will sometimes employ a “formula clause” which enables them to retroactively adjust the size of their gift based on a value determination carried out subsequently to when the gift was made.  This is usually done in order to keep the overall size of the gift within the bounds of a gift tax exclusion.

The IRS has taken a dim view of formula clauses, attacking them without success in Estate of Christiansen, Estate of Petter, and Estate of McCord. In these three cases, the formulas provided that any excess value created by the formulas was to be given to charity.

A Recent Case

A more recent case, Wandry v. Commissioner – T. C. Memo. 2012-88, March 26, 2012, also involves a formula clause, but one differing from the others in that it does not pour the excess value over into a charity.

In August, 2001, petitioners, Joanne and Albert Wandry, formed Norseman Capital, LLC, a Colorado limited liability company.  Norseman held cash, marketable securities and a family business.

On January 1, 2004, petitioners executed gift documents transferring gifts of membership units of Norseman to their children and grandchildren.  The documents specified the dollar value of each gift, with the number of units gifted to be based on the fair market value of the units of Norseman as finally determined by the IRS or a court of law.

The IRS Weighs In

The IRS issued a notice of deficiency related to these gifts.  It argued that the Norseman gifts represented a transfer of fixed percentage interests of Norseman rather than a specified dollar value.  This, they said, creates a condition subsequent to a completed gift and voids the adjustment clause as being contrary to public policy.

The Court’s Decision

The court, for various reasons, rejected this argument, drawing a distinction between a “savings clause,” which a taxpayer may not use to avoid the imposition of gift tax, and a “formula clause,”  as was used in this case, which the court held to be valid.

The court also commented on the charitable gift aspect of the case, stating that “this factor contributed to our conclusion, but it was not determinative.  The lack of a charitable component in the cases at hand does not result in a ‘severe and immediate’ public policy concern.”

The Takeaway

Wandry is the first case dealing with a formula clause that doesn’t have a charitable element.  It worked for the petitioners.  It might be worth taking a look at to see if it can work for your clients.

IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction(s) or tax-related matter(s) addressed herein.