Answers in Genesis: believing it. defending it. proclaiming it.

Barbara Banker started with nothing. Not only did she not own a bank, she had nothing to place in the bank. Barbara lived in a midsized town and worked in the local hardware store. But the store owner noticed her industrious efforts and strong work ethic. When he decided to retire, he suggested that Barbara take over the hardware store and pay him over a term of ten years from store profits. Barbara did exactly that. In fact, when the town drugstore owner wanted to retire, she bought it under a similar plan. Later, Barbara started buying apartment buildings in town. Since she needed financing, Barbara became good friends with the town bankers.

Two bankers approached Barbara about starting a new local bank. She agreed to be one of the initial directors and they all invested in the new local bank (with the name LoBank). Years later, the bank services and value have greatly increased. Barbara is a respected businesswoman, and now has a large block of stock in LoBank.

As a strong community supporter, Barbara gives regularly to favorite local charity. She would like to make a large gift of bank stock to local charity for a new youth center. But as a director, she knows that LoBank directors voted in favor of the sale of all stock to MegaBank from a nearby large city. Barbara met with her CPA to discuss the gift.

Barbara explained, "My favorite charity would like to name the new youth center after me. I am interested in supporting youth, and this center would be a fine addition for our town. The LoBank stock has gone way up in value, but I have heard that there may be problems with this gift now that the board voted to accept the offer from Megabank and 75% of the shareholders have also voted in favor of the sale. Can I still make this gift? Are there any problems?"

Barbara's CPA explained that it will not be possible to make a gift of LoBank stock at this time and still bypass the capital gain. The typical fourth step in the bank sales process is a vote by the shareholders to accept the buyer's offer. The LoBank sale status is now very similar to the prearranged sale case Ferguson v. Commissioner, 108 T.C. 14 (28 Apr 1997).

In Ferguson the selling company (AHC) stock was widely held and the 50% threshold was not crossed until the shareholders had voted. While the gift was planned prior to the 50% vote in favor of the sale by the shareholders, the actual gift was not completed until after 50% of the shareholders had voted to accept the sale offer. Since on August 31, 1988, 52% of the AHC shares had been tendered in acceptance of the sale offer and the gift was made on September 8, 1988, the Tax Court held that a binding obligation had been created prior to the gift and there would not be a bypass of gain on the transfer of the stock. The Tax Court noted, "At that time, despite the various contingencies to be discussed infra, we believe the reality and substance of the merger agreement and the tender offer indicate that the stock of AHC was converted from an interest in a viable corporation to a fixed right to receive cash."

Because over 50% of the LoBank shareholders voted in favor of the sale, the obligation is now effectively binding and the sale is subject to the binding agreement standard of Rev. Rul. 78-197.