The proposed Internal Revenue Code Section 2704 regulations (the “regs”) prevent taxpayers from considering a range of restrictions that could otherwise reduce the value of an interest in an entity for transfer tax purposes. These restrictions include those denominated “applicable restrictions” that had been in prior law. The regs make these applicable restrictions much tougher and add a new category of restrictions referred to as “disregarded restrictions.” The regs throw taxpayers a bone, a rather small one, in terms of permitting at least one type of restriction on value to be respected. This leniency permits consideration of restrictions a lender or other financial partner may place on the entity or transaction. If the restriction applies, then the valuation of an interest in a family entity might qualify for a valuation discount, for example, for lack of control.
Source: Proposed 2704 Regulations: “Commercially Reasonable Restriction Exclus
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David R. Duringer, JD, LL.M, is a concealed firearm instructor and tax lawyer specializing in business and estate planning; licensed to practice law in the states of California and Washington. He is managing shareholder at Protective Law Corporation, serving Southern California from its Laguna Hills (Orange County) headquarters and satellite offices in San Diego County (Coronado and Carlsbad).
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