Eleventh Circuit Upholds Tax Courts Decision Regarding NAV Discount and “Graegin Loan” Interest Deduction (Estate of Koons, III)

Eleventh Circuit Upholds Tax Courts Decision Regarding NAV Discount and “Graegin Loan” Interest Deduction (Estate of Koons, III)

May 03, 2017

In the Tax Court’s April 3, 2013 decision, the Court rejected the Estate’s expert’s 31.7% discount conclusion and agreed with the IRS’ expert that the decedent’s 46.94% interest in Central Investment Corp.’s (CIC) voting shares and 51.5% interest CIC’s nonvoting shares should be subject to a 7.5% combined discount for lack of control and lack of marketability. Furthermore, the Court determined that, because of the liquid nature of CIC’s investments, no deduction could be made for interest on a loan that raised funds to pay for tax liabilities and administrative expenses. The Estate appealed.


Within the three months prior to the death of John F. Koons, III, his company, CIC, sold the majority of its operating businesses for over $350 million plus another $50 million to settle a lawsuit with the acquiring company. The remaining businesses (which composed 4% of CIC’s revenue) and the sales proceeds were placed in an LLC. At the valuation date, after certain distributions of a portion of the sales proceeds, the LLC held total assets of approximately $351 million, of which $322 million was cash. The net asset value of the LLC was approximately $318 million.

In the two months prior to the date of death, the decedent’s four children, as a condition of the sale, agreed to be bought out at the net asset value of the LLC. The redemptions were completed 58 days after the date of death. As a result of the redemptions, the Estate held a 70.42% voting interest and a 71.07% nonvoting interest (a combined 70.93% interest) in the LLC.

Importantly, the LLC member agreement limited discretionary distributions to 30% “of the excess of ‘distributable cash.’” However, this limitation could be removed by a majority vote of the voting members.

A year after the date of death, the LLC loaned $10.75 million to a revocable trust for the purpose of paying any estate or gift tax liabilities of the decedent. The terms of the loan required annual repayments of $5.9 million in principal and interest (interest of 9.5% annually) from 2024 until 2031. As a result of the protracted time frame, the total interest that would be paid on the loan would amount to $71,419,497. The Estate deducted this amount of interest expense as an administrative expense.

The Eleventh Circuit’s Decision

The Eleventh Circuit noted that, prior to the date of death, as a condition to their agreement to the sale of CIC, the children required that their respective interests be redeemed by the LLC at net asset value after the sale of CIC was completed. Moreover, the sale of CIC occurred prior to the date of death. The fact that the actual redemption of the children’s interests occurred 58 days after the date of death was a mere formality and there was no meaningful reason that the children would have any legal standing to change, or would want to change, their minds regarding the redemption.

Importantly, the redemption would give the Estate a 70.42% voting interest – enough to remove the restriction that limited distributions to 30% “of the excess of ‘distributable cash.’” As a result of the sale of CIC, liquid assets were more than sufficient to make adequate distributions to cover both the necessary estate taxes and administrative expenses of the Estate. Citing Estate of Keller,1 the Eleventh Circuit stated that “interest payments are not necessary expenses where 1) the entity from which the estate obtained the loan has sufficient liquid assets that the estate can use to pay the tax liability in the first instance; and 2) the Estate lacked other assets such that it would be required to eventually resort to those liquid assets to repay the loan.” Accordingly, the Eleventh Circuit agreed with the Tax Court in rejecting the Estate’s loan interest expenses.

Because the Estate’s expert ignored the ability of the Estate to control the LLC and believed that the Estate could not determine distributions, the Eleventh Circuit concluded that the Tax Court was also correct in rejecting the Estate’s expert’s 31.7% discount conclusion.


With regard to the value of the interest in CIC, the taxpayers’ case rested upon the opinions of their expert, Dr. Mukesh Bajaj. The Eleventh Circuit found his opinions as unpersuasive as the Tax Court did. Bajaj’s regression analysis was oriented toward operating businesses, yet CIC was an investment holding company. The Tax Court concluded that a hypothetical seller would anticipate being able to force a distribution of the majority of the LLC’s assets. Dr. Bajaj did not hold this opinion.

The Eleventh Circuit stated that, with liquid assets, there was no legitimate need to borrow funds to cover the Estate’s expenses. As such, the denial of the interest deduction for an unnecessary “Graegin loan” followed. However, given the unusually long term of the loan, it remains to be seen if an interest deduction would have been acceptable to the Court if 1) the underlying assets were not liquid, 2) the Estate did not have control, and 3) the term of the loan was such that payments did not begin until far into the future, incurring large unpaid interest sums.

1 The term “Graegin Loan” refers to the ability of an estate to deduct interest expenses as an estate administrative expense for loans made to the estate to pay estate taxes and other administrative expenses that arose as the result of the decision in  Graegin v. Commissioner – 56 T.C. M (1988).

2 Estate of John F. Koons, III – No. 16-10646; No. 16-10648, Eleventh Circuit (April 27, 2017)

3 Estate of John F. Koons, III – T.C. Memo. 2013-94

4 Estate of Keller v. U.S. – 697 F.3d 238, Fifth Circuit (2012)*