Gift, Estate, & Income Tax Compliance
2019 02 Value Matters

February 1, 2019

Mercer Capital’s Value Matters® 2019-02

Estate of Powell v. Commissioner

Estate of Nancy H. Powell, Deceased, Jeffrey J. Powell, Executor, Petitioner v. Commissioner of Internal Revenue, Respondent. 148 T.C. No.18  (May 18, 2017)

CASE SUMMARY

  • Nancy Powell died August 15, 2008
  • On August 6, 2008, Jeffrey Powell (Nancy Powell’s son) created a limited partnership, NHP Enterprises LP (“NHP”) and named himself general partner. 
  • Jeffrey then transferred approximately $10 million in cash and securities from his mother’s revocable trust to NHP in exchange for a 99% limited partnership interest. 
  • On August 7, Jeffrey obtained a doctor’s note that allowed him to act as agent under his mother’s durable power of attorney for property due to his mother’s incapacity.  He used the power of attorney to create a charitable lead annuity trust (“CLAT”) and transferred the 99% limited partnership interest to the CLAT.  The CLAT paid the annuity interest to the Nancy H. Powell Foundation for the remainder of his mother’s life.  The CLAT named Jeffrey and his brother as remainder beneficiaries upon his mother’s death. 
  • The power of attorney Jeffrey used contained two significant provisions: 
    • Jeffrey had the power to “[t]o grant, convey, sell, transfer, mortgage deed in trust, pledge and otherwise deal in all property real and personal, which the principal may own.” 
    • The POA also authorized Mr. Powell “[t]o make gifts on the principal’s behalf, including, but not limited to, forgiveness of loans, to a class composed of the principal’s children, any of such children’s issue, or any or all to the full extent of the federal annual gift tax exclusion under Internal Revenue Code Section 2503(b) or any successor statute.”
  • Jeffrey later filed a gift tax return for the transfer to the CLAT. He determined the value of the 99% limited partnership interest to be $7.5 million after a 25% discount for lack of marketability and lack of control. This resulted in a gift to the reminder beneficiaries of just over $1.6 million. The IRS issued deficiency notices for the gift tax return and the estate tax return.

KEY ISSUE

  • Misuse of Powers of Attorney 
    • Here the decedent’s son used a power of attorney that granted him the power to make gifts of up to the $14,000 annual gift exclusion to the principal’s family members to make a gift of $7.5 million to his family and his mother’s private foundation. This misuse of the power of attorney caused the Tax Court to disallow the gift. 

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June 2026 | Complex Capital Structures in Transfer Tax Planning: A Valuation Perspective
Value Matters® June 2026

Complex Capital Structures in Transfer Tax Planning: A Valuation Perspective

Capital structures of privately held businesses have become increasingly sophisticated in recent years. Once the preserve of venture capital and large private equity transactions, complex capital structures now appear regularly in family-owned businesses, founder-led companies, and real estate holding and other closely held investment companies.
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This program examines the increasing prevalence of complex capital structures in privately held businesses and the valuation challenges they present in gift, estate, and transfer tax planning.
Mercer Capital to Sponsor TexasBarCLE’s 50th Annual Advanced Estate Planning & Probate Course
Mercer Capital to Sponsor TexasBarCLE’s 50th Annual Advanced Estate Planning & Probate Course
Mercer Capital is pleased to sponsor TexasBarCLE’s 50th Annual Advanced Estate Planning & Probate course, taking place June 3 -5, 2026, at the Hyatt Regency Frisco-Dallas. J. David Smith, CFA, ASA, and Andrew B. Frew, ASA, ABV, will attend on behalf of the firm.Hosted by TexasBarCLE and cosponsored by the Real Estate, Probate & Trust Law Section of the State Bar of Texas, the annual course brings together estate planning and probate professionals for three days of focused education and discussion. This year’s agenda includes sessions on case law updates, fiduciary issues, grantor trusts, retirement benefits, will contests, and current developments in estate planning tax law.David Smith is a Senior Vice President at Mercer Capital and a senior member of the firm’s tax practice. He provides valuation services for tax planning, transactional purposes, and financial reporting, with particular experience in industries including financial services, oil and gas, and biotechnology. David is also a regular contributor to Mercer Capital’s Value Matters Newsletter.Andrew Frew is a Vice President at Mercer Capital and has nearly 25 years of business valuation experience. He has been involved with hundreds of valuation and related engagements across numerous industries and values businesses and business interests for gift and estate tax, charitable giving, buy-sell agreements, mergers and acquisitions, business succession and exit planning, and litigation support purposes.Mercer Capital regularly assists attorneys, fiduciaries, and advisors with valuation matters that arise in estate planning, probate, tax planning, and related disputes. The firm is pleased to support programs that help professionals address the financial issues that often accompany trusts, estates, and closely held business interests.Mercer Capital looks forward to connecting with attendees in Frisco. Additional information about the course is available through TexasBarCLE: https://www.texasbarcle.com/.

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