Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 28




                                        -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  Next 

Last modified: March 27, 2008