-28- to the Foundation. Lurking behind the Commissioner’s argument is the intimation that this will increase the probability that people in Hamilton’s situation will lowball the value of an estate to cheat charities. There’s no doubt that this is possible. But IRS estate-tax audits are far from the only policing mechanism in place. Executors and administrators of estates are fiduciaries, and owe a duty to settle and distribute an estate according to the terms of the will or law of intestacy. See, e.g., S.D. Codified Laws sec. 29A-3-703(a) (2004). Directors of foundations--remember that Hamilton is one of the directors of the Foundation that her mother created--are also fiduciaries. See S.D. Codified Laws sec. 55-9-8 (2004). In South Dakota, as in most states, the state attorney general has authority to enforce these fiduciary duties using the common law doctrine of parens patriae.15 Her fellow directors or beneficiaries of the Foundation or Trust can presumably enforce their observance through tort law as well.16 And even the Commissioner himself has the power to go after fiduciaries who misappropriate charitable assets. The IRS, as the agency charged with ruling on requests for charitable exemptions, can discipline 15 George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees, sec. 411 (rev. 2d ed. 1991). 16 See for example Zastrow v. Journal Communications, Inc., 718 N.W.2d 51, 63 (Wis. 2006), where the Supreme Court of Wisconsin held that a breach of the fiduciary duty of loyalty is always an intentional tort.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: March 27, 2008