Estate Planning and Discounts: Can a Fractional Interest In Artwork Be Discounted For Estate Planning Purposes

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In the recent case of Stone v. United States, No. 3:06-cv-00259, United States District Court for the Northern District of California (May 25, 2007), the declined to give a discount to the value of artwork.

The Court reasoned that artwork in not fungible. From that, and the testimony of the experts (and commenting that unlike this case, sales of fractional interests in real estate sales had comparable sales evidence of discounts) the Court concluded, in general, that a hypothetical willing seller of an undivided interest in art would rather sell the whole piece and split the proceeds, then sell a fractional interest at a discount. Such a sale might be by agreement or might be by partition. But, because a partition could be sought, no hypothetical willing seller would accept anything less than full value.

Turning to specifics, after dissecting the testimony of estate’s expert asserting a 51% discount, the Court said that “a small discount is appropriate to account for legal fees” (here, legal fees would have been about 1%) and a further discount of 2% for costs of sale should be added. No appraisals would be necessary. “Some discount” would be appropriate for the uncertainties involved in waiting to sell the art. The Court would give no discount for lack of control, lack of marketability, lack of liquidity, the time value of money or other discounts commonly discussed in such cases.

The Court stopped short of making a final determination of the appropriate discount. Instead, it ordered the parties to seek to reach an agreement on valuation. But the tone of the Court’s opinion suggests that, if pushed to decide, the Court would “just say no” to big discounts.