Estate of Armstrong v. United States , 277 F.3d 490 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ESTATE OF FRANK ARMSTRONG, JR., 
Frank Armstrong, III, Executor;
FRANK ARMSTRONG, JR., Trust For
Benefit of Frank Armstrong, Jr.,
Frank Armstrong, III, Trustee,
Plaintiffs-Appellants,  No. 01-1305
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CA-98-101-5)
Argued: October 30, 2001
Decided: January 15, 2002
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and Malcom J. HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Wilkinson and Judge Howard joined.
COUNSEL
ARGUED: Stephen L. Pettler, Jr., HARRISON & JOHNSTON,
Winchester, Virginia, for Appellants. Joan Iris Oppenheimer, Tax
2 ESTATE OF ARMSTRONG v. UNITED STATES
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee. ON BRIEF: Aubrey J. Owen, OWEN &
TRUBAN, P.L.C., Winchester, Virginia, for Appellants. Claire Fal-
lon, Acting Assistant Attorney General, Richard Farber, Ruth E. Pla-
genhoef, United States Attorney, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
At the age of 91, Frank Armstrong, Jr. gave very substantial gifts
of stock to his four children and, primarily through a trust he created,
paid millions of dollars in gift taxes on those gifts. Armstrong died
less than three years later, triggering estate taxes on those gift taxes.
In addition, the IRS assessed additional gift taxes on the grounds that
Armstrong undervalued the stock when the original gift taxes were
paid. Armstrong’s estate and the trust bring this action seeking a
refund of both the original and the additional gift taxes. They main-
tain that the donee children’s purported obligation to pay additional
gift taxes and potential liability for estate taxes on gift taxes markedly
reduced the value of the gifts and thus should reduce the gift taxes
attributable to them pursuant to the "net gift" doctrine. We agree with
the district court that, given the speculative and illusory nature of the
donees’ obligation to pay gift and estate taxes, the net gift doctrine
does not apply here. Accordingly, we affirm.
I.
The parties stipulated to all relevant facts, and so "[t]he material
facts in this matter are undisputed." Brief of Appellants at 9.
A.
In 1991, Frank Armstrong, Jr., then 91 years old, and his four chil-
dren agreed that Armstrong would carry out his estate plan through
inter vivos transfers of his stock in National Fruit Products, Inc., a pri-
vately held corporation in which Armstrong owned the controlling
ESTATE OF ARMSTRONG v. UNITED STATES 3
interest. The children welcomed this approach because of their con-
cern that Armstrong "might take further actions which would be detri-
mental to the value of National Fruit shares as a family business" and
to them "as heirs of the stock." The events giving rise to this concern
included Armstrong’s recent transfer of real estate to two young
women with whom Armstrong had kept company and his naming of
a new executor unfamiliar to the children.
In structuring the gifts of stock, Armstrong, the children, and
National Fruit extensively consulted with counsel and repeatedly
negotiated with each other. They obtained an appraisal of the value
of Armstrong’s National Fruit stock and "numerous projections of the
tax consequences" of "various scenarios." On the advice of counsel,
Armstrong and the children expressly declined to adopt an arrange-
ment requiring the children to pay all gift taxes on the gross gifts they
received — that is, a traditional net gift arrangement. The children
further declined, also on advice of counsel, to enter into a written
agreement to pay the estate taxes on the gift taxes that would be trig-
gered should Armstrong die within three years of making the gifts.
Indeed, throughout these consultations and negotiations, the children
made clear that they wanted the transfers structured to reduce their
gift and estate tax liabilities and to "minimize" their own "direct cash
outlay." Armstrong, for his part, would agree to the stock transfers
only if, inter alia, he received continuing income comparable to his
prior dividend payments and was personally exonerated from the
expenses and taxes resulting from the stock transfers.
Through the agreed-upon stock transfers, Armstrong was com-
pletely divested of all his National Fruit stock, and control of the cor-
poration was shifted to the children. The stock transfers were carried
out over two tax years as follows. In December 1991 (the "1991 trans-
action"), Armstrong conveyed 5,725 shares of his National Fruit com-
mon stock to each of his four children and 100 shares to each of his
eleven grandchildren. In addition, National Fruit redeemed all of
Armstrong’s preferred stock for approximately $1,534,150 in cash,
plus a private annuity payable to Armstrong. The bulk of the cash
from the preferred stock redemption was paid to charitable organiza-
tions in donations, although $219,150 was later used to fund the
Trust.
4 ESTATE OF ARMSTRONG v. UNITED STATES
In January 1992 (the "1992 transaction"), Armstrong transferred
more than 12,000 additional shares of his National Fruit common
stock to each of his children. Armstrong also again transferred 100
unredeemed shares to his grandchildren, this time apportioned from
the otherwise equal allotments of their respective parents, and trans-
ferred approximately 5,000 shares of his common stock to two trusts,
a generation-skipping trust and an employee trust, which are not rele-
vant to the current action. National Fruit redeemed Armstrong’s
remaining common stock, as represented by a promissory note given
to Armstrong in the amount of $6,065,300. Then, using the $219,150
from the previous redemption of preferred shares, Armstrong created
a grantor trust and assigned the promissory note to that Trust. Under
the trust agreement, an irrevocable trust was created naming Arm-
strong as "the beneficiary." The trust agreement provides for quarterly
income payments to Armstrong and that the Trustee "shall pay" the
gift and income tax owed by Armstrong in connection with the 1991
and 1992 transactions.
Also as part of the 1991 and 1992 transactions, the children entered
into a transferee liability agreement. That agreement provides that the
children would pay "the additional gift taxes . . . arising by reason of
any proposed adjustment to the amount of the 1991 and 1992 gifts."
Thus, this agreement appeared to impose on the children the obliga-
tion to pay any additional gift taxes in the event the Internal Revenue
Service (IRS) subsequently determined that Armstrong had underval-
ued the gifted stock on his tax returns. However, an attorney who
advised Armstrong and his children "regarding the gifts of stock" sub-
mitted an affidavit on behalf of the Estate and the Trust in which he
stated that the parties agreed that Armstrong would "use a grantor
trust to assure payment of taxes . . . in connection with a proper final
determination thereof" and the donees would only be "secondarily lia-
ble" for these taxes. This same attorney concluded that "[t]he donor
. . . and the donees intended" that the arrangement ultimately agreed
upon "would protect the donees . . . from having to pay taxes."
In his gift tax returns for 1991 and 1992, Armstrong valued the
transferred stock at $100 per share and reported gift tax liability of
$1,229,483 in 1991 and $3,027,090 in 1992. The Trust and Arm-
strong himself paid all of these taxes; the Trust paid the lion’s share,
ESTATE OF ARMSTRONG v. UNITED STATES 5
a total of more than $4.2 million for the two years, while Armstrong
individually paid just over $40,000. The children paid no gift taxes.
On July 29, 1993, less than three years after the 1991 and 1992
transactions, Armstrong died. He had suffered recurring pulmonary
problems prior to the 1991 and 1992 transactions, although the parties
stipulated that he did not suffer from any life-threatening conditions
at the time of the stock transfers.
Following Armstrong’s death, the IRS valued the gifted stock, as
of the date of the transfers, at $109 per share. This change in valua-
tion resulted in increased gift tax liability of approximately $118,800
for 1991 and $304,910 for 1992. The children paid none of the addi-
tional gift taxes; rather, once again the Trust paid all gift taxes, with
interest.
In computing the value of Armstrong’s estate, the executor did not
include in the estate assets the gift taxes of over $4 million that Arm-
strong and the Trust had paid on the stock gifts during the three years
prior to his death. The IRS determined that the Internal Revenue Code
required inclusion of those gift taxes in the estate and assessed an
estate tax deficiency of some $2.35 million. Since the stock transfers
rendered the estate without assets to pay this deficiency, the IRS
assessed each donee child with liability for the estate tax deficiency
to the extent of the value of the stock transferred to each.1
B.
On April 15, 1996, Frank Armstrong, III, Armstrong’s eldest son
and the CEO of National Fruit, on behalf of the Estate as its Executor
and the Trust as its Trustee, filed claims for refund of all the gift taxes
paid in connection with the 1991 and 1992 transactions. The Estate
sought a refund of the original gift taxes paid on the stock transferred
1
The Estate and children challenged these determinations in tax court.
The tax court upheld the donee children’s transferee liability. See Arm-
strong v. Comm’r, 114 T.C. 94, 96 n.4, 102 (2000). This transferee liabil-
ity attached by law pursuant to 26 U.S.C. § 6324(a)(2), independent of
any liability the children assumed pursuant to the transferee liability
agreement. Id. at 102.
6 ESTATE OF ARMSTRONG v. UNITED STATES
in the amount of some $1,348,283 with respect to the 1991 transfers
and some $3,332,000 with respect to the 1992 transfers; the Trust
sought a refund of the additional gift taxes in the amount of some
$118,800 with respect to 1991 transfers and some $304,910 with
respect to the 1992 transfers. An identical premise drove the refund
claims: the obligation of Armstrong’s children to pay additional gift
taxes and estate taxes as a condition of the gifts had substantially
reduced the value of the gifts and, accordingly, the resulting gift
taxes. The IRS disallowed the claims.
The Estate and the Trust then filed suit in the district court for
refund of all gift taxes. In addition to arguing that the children’s
responsibility for additional gift taxes and estate taxes reduced the
value of the transferred stock, the Estate and the Trust also alleged
that the transfers did not constitute valid gifts and that the encum-
brances on the transferred stock greatly diminished the marketability
of the stock, rendering it of only nominal value. The Estate and the
Trust cast their claims under a variety of legal theories. For example,
they contended that the children’s obligation to pay additional gift and
estate taxes created liens or transferee liability at law, the children’s
express or implied assumption of Armstrong’s obligations reduced the
stock’s value, and the stock transfers were incomplete. The taxpayers
even alleged, remarkably, that Armstrong had retained the power to
revoke the transfers "by refusing to accept heroic measures and proce-
dures for prolonging his life or by otherwise acting, or refusing to act,
in a manner calculated to eliminate his chances of surviving for three
years" after the stock transfers.
A magistrate judge recommended that the district court either dis-
miss or grant summary judgment to the Government on each of the
taxpayers’ claims. After the Estate and Trust filed timely objections
to this recommendation, the district court conducted a careful de novo
review. The court first determined to dismiss two of the taxpayers’
claims for lack of subject matter jurisdiction because the claims had
not been presented in the administrative proceeding. See 26 U.S.C.A.
7422(a) (West 1989); 26 C.F.R. § 301.6402-2(b)(1) (2001) (requiring
the basis for all tax refund suits in federal court to be timely presented
first to the IRS). Specifically, the court dismissed the argument that
the tax consequences of the gifts had eliminated the market for the
stock, as well as the taxpayers’ efforts to deny that the gifts were ever
ESTATE OF ARMSTRONG v. UNITED STATES 7
made, declaring that the taxpayers’ "own unwavering reference to the
transfers as gifts through the refund claim process" and their "failure
to assert in the administrative claim the ground that there was no valid
gift" or that the stock had no value was fatal to their ability to make
such claims in the current action.
The district court then recognized that the validity of all of the tax-
payers’ remaining contentions rested on determination of whether the
donee children’s asserted obligations to pay additional gift and estate
taxes reduced the value of the National Fruit stock at the time of the
transfers. The court concluded that the donees’ asserted obligations
did not reduce the value of the transferred stock, and that the net gift
rules did not apply, and therefore granted summary judgment on the
remaining claims to the Government. The Estate and the Trust appeal.
We review the district court’s grant of summary judgment de novo.
Miller v. AT&T Corp., 250 F.3d 820, 830 (4th Cir. 2001).
II.
Resolution of this appeal requires that we determine whether the
donee children’s asserted obligation to pay additional gift taxes and
estate taxes associated with the 1991 and 1992 transactions reduced
the value of Armstrong’s gifts to them at the time of the stock trans-
fers.
The Internal Revenue Code generally imposes a gift tax on prop-
erty, excluding certain minimal amounts, see 26 U.S.C.A. § 2503(b)
(West 1989), that an individual transfers as a gift during any tax year.
26 U.S.C.A. § 2501(a)(1) (West 1989). When property is given, the
tax is based on its value at the time of the transfer. 26 U.S.C.A.
§ 2512(a) (West 1989). By statute, the donor is responsible for pay-
ment of the gift tax, 26 U.S.C.A. § 2502(c) (West 1989), but a donee
may contractually assume liability for the donor’s gift tax obligations.
See, e.g., Diedrich v. Comm’r, 457 U.S. 191 (1982); Rev. Rul. 75-72,
1975-1 C.B. 310 (1975); Rev. Rul. 80-111, 1980-1 C.B. 208 (1980).
When a donee agrees to pay the donor’s gift tax obligations as a
condition of receiving the gift, the donee need only pay gift taxes on
the net gift. Rev. Rul. 75-72. The net gift is determined by deducting
the amount of the gift tax obligation from the value of the transferred
8 ESTATE OF ARMSTRONG v. UNITED STATES
property. Id. The rationale for the net gift doctrine is that a donor who
has required the donees to pay gift taxes on transferred property "did
not intend that the amount of the value of the property necessary for
the gift tax liability would be a gift." Harrison v. Comm’r, 17 T.C.
1350, 1357 (1952).
Because the value of property at the time of transfer is the basis for
calculating the gift tax, a donee seeking the benefit of net gift princi-
ples must demonstrate that payment of the gift taxes was a condition
on the gift at the time of transfer. Rev. Rul. 75-72. Any obligation of
the donee to pay gift taxes that is speculative or illusory evidences
that the obligation was not a true condition on the gift at the time of
the transfer, and so did not diminish the value of the transferred prop-
erty, in which case the entire value of the property is a gift subject to
gift taxes. See Robinette v. Helvering, 318 U.S. 184, 188 (1943)
(holding that net gift principles do not apply to "contingent" liability);
Rev. Rul. 75-72 (providing that net gift principles require "the result-
ing [gift] tax . . . actually be paid by the donee or from the subject
property").
A.
The Estate and the Trust initially argue that net gift principles
apply to reduce the value of the transferred stock by the amount of
additional gift taxes paid by the Trust after Armstrong’s death. The
taxpayers maintain that the transferee liability agreement required the
children to pay these additional gift taxes and this obligation created
a "retained interest in the donor and therefore a ‘net gift.’"
The first problem with this contention is that the children’s obliga-
tion to pay the additional gift taxes was both contingent and highly
speculative. When a condition on a gift is contingent, the Supreme
Court has held that the value of the gift is not to be reduced for gift
tax purposes. See Robinette, 318 U.S. at 188 (1943) (refusing to allow
taxpayer to reduce the tax value of a gift by the value of a "reversion-
ary interest" because the value of the reversion was "contingent").
In the typical arrangement in which "net gift" principles apply —
an arrangement that Armstrong and his children specifically rejected
— the donor transfers property to the donee on the condition that the
ESTATE OF ARMSTRONG v. UNITED STATES 9
donee pay all resulting gift taxes. See Rev. Rul. 75-72. In such a situ-
ation, there is no dispute that the donee is liable for the gift tax, even
if the total amount of the tax is not determined until a later juncture.
See, e.g., Harrison, 17 T.C. at 1353-54, 1356 (recognizing donee’s
ability to deduct additional gift taxes due under statement of defi-
ciency in calculating net gift). Here, however, Armstrong’s children
only had an obligation to pay additional gift taxes in the event of an
undervaluation of the transferred property, an event all parties sought
to avoid by careful valuation of the stock and adequate funding of the
Trust. In fact, the children fully expected and intended, according to
the counsel who advised them with respect to the 1991 and 1992
transactions, that they were protected "from having to pay taxes and
expenses incurred as a result" of the transactions. Because the donees’
obligation to pay additional gift taxes was premised solely on under-
valuation, a probability no one expected to arise, the obligation was
contingent and too speculative to justify application of net gift princi-
ples.
Moreover, even were we to hold that the donee children’s obliga-
tion to pay the additional gift taxes was not speculative, the Estate and
the Trust would not be entitled to a refund because of gift taxes paid
based on net gift principles. This is so because in addition to being
contingent, the children’s obligation to pay the additional gift taxes
was illusory.
In fact, the Trust — the same entity that paid the initial gift taxes
— paid the additional gift taxes. Furthermore, as the Estate and Trust
concede, the Trust paid the additional gift taxes "pursuant to the terms
of the Grantor Trust," which Armstrong established coincident with
the stock transfers. That the terms of the grantor trust agreement pro-
vided for the payment of the additional gift taxes, and the Trust in fact
paid them, renders unpersuasive the taxpayers’ contention that the
transferee liability agreement created a true obligation on the children
to pay the additional gift taxes.
The taxpayers would have us credit the terms of the transferee lia-
bility agreement (imposing liability for additional gift taxes on the
donee children), ignoring not only the contrary provision of the
grantor trust agreement (imposing this same liability on the Trust),
but also the reality that the Trust in fact paid the additional gift taxes
10 ESTATE OF ARMSTRONG v. UNITED STATES
and the donee children have paid no gift taxes. This we will not do.
See Seward’s Estate v. Comm’r, 164 F.2d 434, 436-37 (4th Cir. 1947)
("Taxation . . . is a practical matter and in this field the courts will
not be bound by legal refinements in the literal interpretation of con-
tracts when there is evidence that they do not express the real intent
of the parties. . . . [T]he practical interpretation placed upon a contract
by the subsequent acts of the parties themselves may be taken into
consideration."). As a practical matter, the children obtained the full
value of the stock transfers because their father established a trust
charged with paying the gift taxes on these transfers and that Trust in
fact paid the gift taxes, thus belying the suggestion that the children
obtained only a net gift.
The taxpayers attempt to avoid this conclusion by arguing that the
Trust’s payment of the gift taxes constituted payment by the children
because the Trust was established by the children and for their benefit.2
The undisputed facts belie this characterization. First, the very title of
the Trust — the "Frank Armstrong, Jr. Trust for the Benefit of Frank
Armstrong, Jr." — demonstrates that it was created for the benefit of
Armstrong, not his children. Second, the written terms of the trust
agreement entirely accord with its title — Armstrong is the named
donor and sole beneficiary during his life. Third, Armstrong funded
the Trust with his own property, which did not originate with or even
pass through the hands of the children. Fourth, except for the $40,000
in gift taxes paid by Armstrong himself, the Trust paid all of the gift
taxes attributable to the gifts made by Armstrong, as donor. Fifth, the
donee children specifically consented to "go[ing] forward with the
transaction[s] on Armstrong’s terms" after weighing the potential
benefits against what they knew were substantial risks. In sum, tax
2
In support of this argument, the Trust and the Estate also contend that
the 1991 and 1992 transactions, including the establishment of the Trust,
were carried out in lieu of inheritances the children would have received
under Armstrong’s will. This contention does not assist them in any way.
"[W]hile a taxpayer is free to organize his affairs as he chooses, never-
theless, once having done so, he must accept the tax consequences of his
choice, whether contemplated or not . . . and may not enjoy the benefit
of some other route he might have chosen to follow but did not."
Comm’r v. Nat’l Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 149
(1974) (citations omitted).
ESTATE OF ARMSTRONG v. UNITED STATES 11
payments by the Trust were not in any way actually payments by the
children.
We conclude that the children’s obligation to pay additional gift
taxes was both speculative and illusory and did not reduce the value
of the stock transferred to them.
B.
As the second basis for their claim that the transferred stock was
worth less than $109 a share at the time of the transfers, the Trust and
Estate make the corollary argument that net gift principles should
reduce the value of the gifts by the amount of estate taxes the children
are obligated to pay on the gift taxes.
The Estate was assessed estate taxes on the gift taxes paid in con-
nection with the 1991 and 1992 transactions because Armstrong died
within three years of making the gifts. See 26 U.S.C.A. § 2035(c)
(West 1989). The Internal Revenue Code’s "gross-up" rule requires
that the taxable estate include the value of gift taxes paid on gifts
made within this three-year period. Id. Where, as here, an estate is
insolvent or otherwise unable to pay the estate taxes on prior gift
taxes, the Code imposes personal liability for the estate tax on the
donees of the gifted property in the amount of the value of the gift
received. 26 U.S.C.A. § 6324(a)(2), (b) (West 1989). The taxpayers
contend that net gift principles should reduce the stock’s value by the
amount of estate taxes attributable to the gift taxes that the children
may be called upon to pay because the children entered the transac-
tions knowing that Armstrong "retained insufficient assets with which
to pay such estate taxes and by implication from the circumstances
surrounding the gifts, [Armstrong] attached payment of such estate
taxes out of the transferred property as a condition of the transfer."
In Murray v. United States, 687 F.2d 386 (Ct. Cl. 1982), the court
considered and rejected a similar contention. The Murray court rea-
soned that although the donees were obligated to pay the donor’s
estate tax liability, "which could reduce the value of the gifts . . . the
assumed obligation was not itself susceptible to valuation at the date
of the gifts because the economic burden of paying this tax was then
unknown." Id. at 394. Relying on facts for all relevant purposes iden-
12 ESTATE OF ARMSTRONG v. UNITED STATES
tical to those at hand — that the value of the challenged item would
not have been included in the estate if the donor had lived beyond
three years from the date of the gift and that the value of the estate
could have diminished over time — the court concluded that the
potential estate tax liability was too "highly conjectural" to justify a
reduction in the value of the gift. Id.
We find the Murray reasoning persuasive and adopt it here to con-
clude that the children’s estate tax liability was too speculative to
reduce the value of the gifts at the time of the 1991 and 1992 transac-
tions. Had Armstrong lived a short time longer than he did, none of
the gift taxes would have been included in the value of his taxable
estate. Indeed, over time, the value of the estate might not have
reached the threshold at which estate taxes are imposed, particularly
since the 1991 and 1992 transactions divested Armstrong of substan-
tial property.3 Moreover, there is no evidence that the children agreed
to pay the resulting estate taxes — in the event there were any — as
a condition of the stock transfers. Rather, the evidence instead shows
that they intended to be protected from any tax liability stemming
from the transfers. On the advice of counsel, the children refrained
from entering any written agreement to assume liability for estate
taxes, and any liability they do have arises only by law because of the
estate’s insolvency. The litigation attempts of the Estate and the Trust
to quantify through expert calculations the value of potential estate
taxes at the time of the transfers is irrelevant. What is relevant is that
the children’s obligation to pay any estate taxes was then "highly con-
jectural," Murray, 687 F.2d at 394, and so provides no ground for
applying net gift principles.
III.
Because we conclude that net gift principles do not apply to reduce
the value of the transferred stock by the amount of additional gift
3
The Estate and the Trust attempt to create a ground for reversal by
challenging the district court’s failure to find, under state law, that Arm-
strong "relinquished dominion and control so as to result on [sic] a gift."
Given the repeated assertions of the Estate and the Trust that Armstrong
"divested himself of all stock" through the 1991 and 1992 transactions,
the district court did not err.
ESTATE OF ARMSTRONG v. UNITED STATES 13
taxes or the estate taxes attributable to the gifts, the Estate and the
Trust are not entitled to a refund of the gift taxes paid. Accordingly,
the judgment of the district court is
AFFIRMED.