                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                     REVISED DECEMBER 8, 2004
              IN THE UNITED STATES COURT OF APPEALS        November 15, 2004

                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk

                       ____________________

                           No. 04-20194
                       ____________________


JOHN DAVID SMITH, Executor of the Estate of Louis R Smith
Deceased
               Plaintiff - Appellant

v.

UNITED STATES OF AMERICA
               Defendant - Appellee
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.

KING, Chief Judge:

     Appellant John David Smith, Executor of the Estate of Louis R.

Smith, brought suit against Defendant United States of America

seeking a refund of federal estate taxes.     The Estate claimed it

was owed a partial refund because it overvalued certain retirement

accounts held by the decedent in calculating the total gross estate

and, therefore, overpaid its federal estate taxes.     According to

the Estate, the retirement accounts should have been valued at a

discounted amount to reflect the federal income tax liability that

will be triggered when distributions are made from the retirement

accounts to the beneficiaries.   The government moved for summary
judgment, arguing that the Estate was not entitled to a federal

estate tax refund because the potential income tax liability to the

beneficiaries should not be considered in valuing those accounts

for federal estate tax purposes.      The district court granted

summary judgment in favor of the government, and the Estate now

appeals.   For the following reasons, we AFFIRM the judgment of the

district court.

                           I. BACKGROUND

A. Facts

     The decedent, Louis R. Smith, died on March 7, 1997.    John

David Smith, the decedent’s son, is the executor of his estate

(the “Estate”).   The Estate timely filed a United States Estate

(and Generation-Skipping Transfer) Tax Return (Form 706)

reflecting an estate tax balance due in the amount of

$140,358.00, which the Estate promptly paid in full.    In its tax

return, the Estate reported two retirement accounts that the

decedent had accumulated while employed by Phillips Petroleum

Company: (1) the Phillips Petroleum Company Thrift Plan (the

“Thrift Plan”), which the Estate valued at $725,550.00; and (2)

the Phillips Petroleum Company Long Term Stock Plan (the “Stock

Plan”), which the Estate valued at $42,808.00 (referred to

collectively as the “Retirement Accounts”).   The Retirement

Accounts were comprised of marketable stocks and bonds.

     On October 30, 1999, the Estate timely filed a Claim for


                                 2
Refund and Request for Abatement (Form 843), seeking a refund in

the amount of $78,731.00 plus accrued interest.    In its claim,

the Estate averred that the “refund should be allowed because the

executor made an overpayment [sic] estate tax due to an error in

the calculation and the valuation of the gross estate of the

decedent.”    In addition to its refund claim, the Estate also

filed a supplemental United States Estate (and Generation-

Skipping Transfer) Tax Return (Form 706), which discounted the

value of the Retirement Accounts by thirty percent.    In an

attachment to the return, the Estate explained that the thirty-

percent discount reflected the amount of income taxes that would

be paid by the beneficiaries upon the distribution of the assets

in the Retirement Accounts.    Specifically, the Thrift Plan was

discounted to $507,885.00 and the Stock Plan was discounted to

$29,966.00.    This resulted in an estate tax liability of only

$61,627.00.    By letter dated July 13, 2001, the Internal Revenue

Service disallowed the Estate’s refund claim, stating that “[n]o

discount for taxes due, now or in the future, is allowable in

valuing the assets in dispute.”

B. Procedural History

       On May 29, 2002, the Estate timely filed a complaint against

the United States in the United States District Court for the

Southern District of Texas, seeking a refund of federal estate

tax.    The United States moved for summary judgment, arguing that



                                  3
the Estate was not entitled to discount the value of the

Retirement Accounts to reflect income taxes payable by the

beneficiaries upon receipt of distributions from the accounts.

Additionally, the United States asserted that the Retirement

Accounts should be valued at their fair market value as

determined by the willing buyer-willing seller standard.

     The district court granted the government’s motion for

summary judgment.   In doing so, the court specifically declined

to consider any other factors that could affect the value of the

Retirement Accounts as set forth in the expert report included in

the Estate’s response to the motion for summary judgment.1    The

court reasoned that the Estate failed to raise such factors or

refer to any evidence supporting them in its response.    Thus, the

court concluded that the sole issue was whether, for estate tax

purposes, “the retirement accounts should be priced at their face

value or whether they should be discounted to reflect the thirty

percent income tax to be incurred by the beneficiaries upon

distribution.”   Estate of Smith v. United States, 300 F. Supp. 2d

474, 476 (S.D. Tex. 2004).   Applying the willing buyer-willing


     1
          The expert opinion stated, inter alia, that under the
hypothetical willing buyer-willing seller test, “all relevant facts
and elements of value shall be considered.” In the firm’s view,
that included: (1) the lack of marketability; (2) the twenty-
percent income tax withholding resulting from a liquidation of the
Retirement Accounts; (3) the possible transferee liability that may
be asserted against the purchaser of interests in the Retirement
Accounts; and (4) the need for a reasonable profit in order to
induce a willing buyer to enter into the transaction.

                                 4
seller test, the court reasoned that while the Retirement

Accounts may generate a tax liability for the beneficiaries in

this case, a hypothetical willing buyer would not take that

income liability into consideration when purchasing the

underlying securities but would simply pay the value of the

securities as determined by the applicable securities exchange

prices.   The court further stated that 26 U.S.C. § 691(c)

ameliorates the double tax (the estate and income taxes) by

allowing the taxpayer a deduction in the amount of the estate tax

attributable to the particular asset.   Accordingly, the court

found that the Retirement Accounts were properly valued at their

fair market value as reflected by the applicable securities

exchange prices on the date of the decedent’s death (not

including a discount for the tax payable by the beneficiaries

upon distribution from the accounts).   Since there was no dispute

between the parties that the Estate’s initial tax return

reflected the cash value of the Retirement Accounts, the court

concluded that there was no material question of fact.

     The Estate timely appealed to this court, arguing that the

district court erred: (1) by refusing to consider evidence

properly included in the summary judgment record--i.e., the

additional factors that could affect the value of the Retirement

Accounts as set forth in the expert opinion provided by the

Estate; and (2) when valuing the Retirement Accounts, failing to

apply a discount for the federal income tax liability that will

                                 5
be triggered upon distributions from the Retirement Accounts to

the beneficiaries.

                         II. STANDARD OF REVIEW

     This court reviews the grant of summary judgment de novo.

Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289

F.3d 373, 376 (5th Cir. 2002).   “Summary judgment is proper ‘if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.’”

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992)

(quoting FED. R. CIV. P. 56(c)); accord Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).   There is a genuine dispute about a

material fact if “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.”    Skotak, 953

F.2d at 912 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986) (internal quotation marks omitted)).    In weighing

the evidence, a court must review the facts in the light most

favorable to the non-moving party.    Anderson, 477 U.S. at 255.

                            III. ANALYSIS

A. Summary Judgment Evidence

     The Estate argues that the district court improperly refused

to consider certain evidence even though the Estate repeatedly

made references to it.   The summary judgment evidence in question


                                  6
consisted of the additional factors that the expert opinion

stated should be considered in valuing the Retirement Accounts:

(1) the lack of marketability; and (2) the need for a reasonable

profit in order to induce a willing buyer to enter into a

transaction.2

     To survive summary judgment, the nonmoving party must submit

or identify evidence in the summary judgment record (such as

affidavits, depositions, answers to interrogatories, or

admissions on file) that designate specific facts showing there

is a genuine issue of fact.   Celotex Corp., 477 U.S. at 324;

Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003); Topalian

v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992), reh’g denied, 961

F.2d 215 (1992).   The nonmovant is also required to articulate

     2
          The Estate also argues that the district court erred
because it did not consider the expert opinion as a whole. That is
an inaccurate reading of the district court’s opinion, which
specifically states:

     While the expert report included in Plaintiff's response
     to Defendant's motion raises several additional factors
     that could affect the value of the retirement accounts,
     Plaintiff failed to raise such factors or refer to any
     evidence supporting such factors in its response.
     Therefore, those portions of the expert report were not
     properly before the Court and must be disregarded.

Estate of Smith, 300 F. Supp. 2d at 476 n.5 (emphasis added).
Combined with the fact that the district court analyzed whether the
“inherent” income tax should be discounted from the value of the
accounts--one of the factors in the expert opinion--it is clear the
district court did not refrain from considering the opinion as a
whole, but only refrained from considering those portions that the
Estate did not refer to in its response. Thus, we only address the
Estate’s argument that the district court erred by not considering
the additional factors cited in the expert opinion.

                                 7
the precise manner in which the submitted or identified evidence

supports his or her claim.   Ragas v. Tenn. Gas Pipeline Co., 136

F.3d 455, 458 (5th Cir. 1998).   Thus, this court has held that

“[w]hen evidence exists in the summary judgment record but the

nonmovant fails even to refer to it in the response to the motion

for summary judgment, that evidence is not properly before the

district court.”   Malacara, 353 F.3d at 405; accord Skotak, 953

F.2d at 915.

     The additional factors were part of the summary judgment

record since they were part of the expert opinion appended to the

Estate’s response to the government’s motion for summary

judgment.   However, the Estate neither referred to the additional

factors nor argued that the factors raised a genuine issue of

material fact.   Furthermore, the sort of vague and general

references that the Estate made in its response were insufficient

to put the portions of the opinion that discussed the additional

factors properly before the district court.3   See Forsyth v.

Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994), cert. denied, 513

U.S. 871 (1994) (stating that the appellants did not identify the

specific portions of the summary judgment evidence to support

their claim when they “offered only vague, conclusory assertions


     3
          The Estate’s statements include: (1) using the word
“factors” in its formulation of the issue; (2) arguing that the
court generally takes into account factors that are limited to the
characteristics of a particular asset; and (3) repeating the phrase
“inherent tax liability and legal restrictions” in its response.

                                 8
that their ‘evidentiary materials’” supported their claim and

raised a genuine issue of fact).       Moreover, the Estate simply

failed to articulate the precise manner in which the additional

factors would affect valuing the Retirement Accounts.      We

therefore conclude that the district court properly refused to

consider the additional factors contained in the expert opinion.

B. Valuation Method

     The Estate also argues that the district court erred in the

method it used in valuing the Retirement Accounts.      Specifically,

the Estate contends that the Retirement Accounts’ lack of

marketability and the “inherent” income tax liability should have

been factored in when valuing such accounts.      The Estate also

contends that 26 U.S.C. § 691(c) does not preclude a discount for

inherent tax liability when valuing the Retirement Accounts.         We

address each of the Estate’s arguments in turn.

     1.   Lack of Marketability

     The Estate’s argument that the Retirement Accounts’ lack of

marketability should have been factored into its value fails

because, as our discussion of the evidentiary issue suggests,

the Estate made this argument for the first time on appeal.

“Issues raised for the first time on appeal are not reviewable by

this court unless they involve purely legal questions and failure

to consider them would result in manifest injustice.”       Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (quoting United States



                                   9
v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990)) (internal

quotation marks omitted).   The Estate did not argue in the

proceedings below that lack of marketability is a factor that

should be considered in valuing the Retirement Accounts.    More

specifically, the Estate failed to mention that marketability

should be a factor in discounting the Retirement Accounts in its

refund claim, complaint, response to the government’s motion for

summary judgment, or surreply.   In fact, the refund that the

Estate seeks--thirty percent of the Retirement Accounts’ value--

is based solely on a discount for the Retirement Accounts’

“inherent tax liability” and not for its lack of marketability.

Accordingly, we abstain from considering the Estate’s argument

since the Estate raised it for the first time on appeal.

     2.   Income Tax Liability

     We now turn to whether the value of the Retirement Accounts

should have been discounted to reflect the potential federal

income tax liability to the beneficiaries upon distribution from

the accounts.   Before discussing the valuation method of the

Retirement Accounts, it is useful to discuss the nature of those

accounts and the tax treatment they are afforded by the Internal

Revenue Code with respect to the decedent and his beneficiaries.

     The Retirement Accounts here were funded with tax-deferred

compensation.   In other words, the income used to purchase the

assets in the Retirement Accounts has never been subject to

income tax.   Had the decedent’s Retirement Accounts been

                                 10
distributed to him during his life, he would have paid a federal

income tax on the distribution.      See, e.g., 26 U.S.C.

§ 402(b)(2).4      However, the Retirement Accounts remained intact

at the date of the decedent’s death.       The contents of the

accounts, which were not properly includible in computing the

decedent’s taxable income for the taxable year ending on the date

of his death or for any previous taxable year, are classified

under § 691(a) of the Internal Revenue Code as “income in respect

of a decedent.”      26 U.S.C. § 691(a)(1); 26 C.F.R. § 1.691(a)-1.

To preserve the taxability of items of income in respect of a

decedent in the hands of the beneficiaries, such items are

excepted by statute from the usual step-up in basis to fair

market value.      26 U.S.C. § 1014(c).   Income in respect of a

decedent must be included in the gross income, for the taxable

year when received, of the decedent’s beneficiaries.        26 U.S.C.

§ 691(a)(1)(B).      Thus, when the Retirement Accounts are actually

distributed, the beneficiaries must pay an income tax on the

proceeds.    Id.

     Even though the federal income tax on the income used to

     4
            Section 402(b)(2) provides in pertinent part:

            (b) Taxability of beneficiary of nonexempt
            trust. . . .
                 (2) Distributions. The amount actually
                 distributed or made available to any
                 distributee by any trust described in
                 paragraph (1) shall be taxable to the
                 distributee, in the taxable year in which
                 so distributed or made available . . . .

                                   11
purchase the assets in the Retirement Accounts was thus deferred,

the accounts are still considered part of the decedent’s estate

for federal estate tax purposes.         26 U.S.C. § 2039(a).   As such,

the Estate must pay an estate tax on the value of the Retirement

Accounts.    Id.

     To summarize, then, the Retirement Accounts are subject to

an estate tax, and in addition, an income tax will be assessed

against the    beneficiaries of the accounts when the accounts are

distributed.       To compensate (at least partially) for this

potentially double taxation, Congress enacted § 691(c) of the

Internal Revenue Code, which grants the recipient of income in

respect of a decedent an income tax deduction equal to the amount

of federal estate tax attributable to that asset.5        26 U.S.C.

§ 691(c).    Therefore, in our scenario, the decedent’s

     5
            Section 691(c) provides:

            (c) Deduction for estate tax.
               (1) Allowance of deduction.
                 (A) General rule. A person who includes
                 an   amount   in   gross   income   under
                 subsection (a) shall be allowed, for the
                 same taxable year, as a deduction an
                 amount which bears the same ratio to the
                 estate tax attributable to the net value
                 for estate tax purposes of all the items
                 described in subsection (a)(1) as the
                 value for estate tax purposes of the
                 items of gross income or portions thereof
                 in respect of which such person included
                 the amount in gross income (or the amount
                 included in gross income, whichever is
                 lower) bears to the value for estate tax
                 purposes of all the items described in
                 subsection (a)(1).

                                    12
beneficiaries will be allowed a deduction in the amount of

federal estate tax paid on the Retirement Accounts.      Finally, the

deduction is allowed in the same year the income is realized--

that is, when the Retirement Accounts are actually distributed.

See 26 U.S.C. § 691(c)(1)(A).

     Against this backdrop, we consider the Estate’s argument and

apply the valuation method specified by the Internal Revenue

Code.   Section 2031 provides that the value of the decedent’s

gross estate is determined by including the value at the time of

his death of all of his property.      26 U.S.C. § 2031(a).   “The

value of every item of property includible in a decedent’s gross

estate . . . is its fair market value . . . .”      Treas. Reg.

§ 20.2031-1(b) (2004); accord Cook, 349 F.3d at 854.      Fair market

value is defined as “the price at which the property would change

hands between a willing buyer and a willing seller, neither being

under any compulsion to buy or to sell and both having reasonable

knowledge of the relevant facts.”      Treas. Reg. § 20.2031-1(b);

accord United States v. Cartwright, 411 U.S. 546, 551 (1973);

Cook, 349 F.3d at 854.    “The buyer and seller are hypothetical,

not actual persons.”     Estate of Jameson v. Commissioner, 267 F.3d

366, 370 (5th Cir. 2001).    This court has stated that “[w]hen

applying the willing buyer-willing seller test . . . the

‘“willing seller” is not the estate itself, but is a hypothetical

seller.’”   Adams v. United States, 218 F.3d 383, 386 (5th Cir.

2000) (per curiam) (quoting Estate of Bonner v. United States, 84

                                  13
F.3d 196, 198 (5th Cir. 1996)) (alterations in original).     In

applying this test, the tax court has specifically refused to

view the sale as one between the estate and the beneficiary.

Estate of Robinson v. Commissioner, 69 T.C. 222, 225 (1977).       In

Estate of Robinson, the estate asset at issue was an installment

note which constituted income in respect of a decedent.     The

estate argued that in order to determine the fair market value of

the note for purposes of the estate tax, one must take into

consideration the income tax payable by the beneficiaries as the

installments mature, rather than valuing the note under the

willing buyer-willing seller test.     Id.   The tax court disagreed,

holding that Treas. Reg. § 20.2031-1(b) explicitly provides that

property, such as the note at issue,

      is to be valued, for estate tax purposes, under an
      objective approach applying the willing buyer-willing
      seller test. There is no support in the law or
      regulations for [the estate’s] approach which is
      designed to arrive at the value of the transfer as
      between the individual decedent and his estate or
      beneficiaries.

Id.

      In its brief, the Estate argues that the fair market value

of the Retirement Accounts should reflect its “inherent income

tax liability.”   Specifically, it asserts that the value of the

assets in the Retirement Accounts should have been discounted to

reflect the federal income tax liability to the beneficiaries

upon distribution from the accounts.    The Estate fails to

acknowledge that the willing buyer-willing seller test is an

                                14
objective one.    Thus, the hypothetical parties are not the Estate

and the beneficiaries of the Retirement Accounts.    Accordingly,

we do not consider that the particular beneficiaries in this case

are receiving income in respect of a decedent and will eventually

pay tax on the distributions from the Retirement Accounts because

doing so would alter the test from a hypothetical sale into an

actual one.    Applying the test appropriately then entails looking

at what a hypothetical buyer would pay for the assets in the

Retirement Accounts.6   The Retirement Accounts consist of stocks

and bonds.    A hypothetical buyer would pay the value of the

securities as reflected by the applicable securities exchange

prices.   A hypothetical seller would likewise sell the securities

for that amount.   Correctly applying the willing buyer-willing

seller test demonstrates that a hypothetical buyer would not

consider the income tax liability to a beneficiary on the income

in respect of a decedent since he is not the beneficiary and thus

would not be paying the income tax.

     The Estate’s position is further eroded when one considers

what income tax rate should be employed under the Estate’s

argument.    In this case, the Estate’s position on the applicable

rate is, at best, muddled.    In the Estate’s refund claim, the

Estate asserted that the applicable tax rate would be thirty


     6
          As the parties recognize, the Retirement Accounts, by
their terms, cannot be sold. For this reason, the debate here is
over the value of the constituent assets.

                                 15
percent, and it was specifically on the basis of this rate that

the claimed discount was predicated.   The valuation expert’s

opinion included in the Estate’s summary judgment evidence notes

that when the Retirement Accounts are distributed, the respective

payors will be obligated to withhold twenty percent of the amount

of any distribution for application against any income tax

liability of the beneficiary.   The opinion goes on to state that

the beneficiary’s income tax liability could exceed the twenty

percent withheld “in almost all cases.”   The valuation opinion

does not, however, settle on a specific tax rate to be used for

the purpose of valuing the Retirement Accounts.   At oral

argument, in response to a question about how the thirty-percent

discount in the refund claim was arrived at, counsel for the

Estate stated (inconsistently with the Estate’s refund claim)

that the thirty-percent discount took into account all the

factors identified in the expert’s opinion, including the lack of

marketability and the “inherent income tax.”   The muddle in the

record and at oral argument about the tax rate stems from the

fact the Internal Revenue Code is devoid of a provision that

would flesh out the Estate’s position, putting the Estate in the

position of having to make up a theory to support the amount of

its claimed discount.   The theory is predicated on the fact that

a beneficiary will have to pay income tax on a distribution from

the Retirement Accounts, but the beneficiary’s actual tax rate

for some future year when the distribution is made is simply

                                16
unknown.   The Estate’s argument is exactly the kind of

beneficiary-specific inquiry, with the added feature of

speculation on the future, that the hypothetical willing buyer-

willing seller test precludes.

     The Estate, however, contends there is a recent trend, as

evidenced by several cases, of considering potential tax

liability in valuation.7    See Dunn v. Commissioner, 301 F.3d 339

(5th Cir. 2002); Estate of Jameson, 267 F.3d at 366;      Eisenberg

v. Commissioner, 155 F.3d 50 (2d Cir. 1998); Estate of Davis v.

Commissioner, 110 T.C. 530 (1998).    In those cases, the estate

asset at issue was stock in a closely-held corporation, and the

court was faced with the question whether the capital gains tax

that would be payable upon the sale of assets held by the

corporation would factor into the fair market value of the

corporation’s stock.   See Dunn, 301 F.3d at 339; Estate of

Jameson, 267 F.3d at 366;    Eisenberg, 155 F.3d at 50; Estate of

Davis, 110 T.C. at 530.    As the government urges, these cases are

distinguishable.   First, this case involves a different sort of

asset–-i.e., Retirement Accounts containing marketable stocks and

bonds.   Thus, the rationale in those cases, that a hypothetical


     7
          This so-called “trend,” as discussed in the same cases
cited by the Estate, is attributable to the abrogation, by the Tax
Reform Act of 1986, of the General Utilities doctrine, General
Utilities & Operating Co. v. Helvering, 296 U.S. 200 (1935),
dealing with corporate liquidations. See Dunn, 301 F.3d at 339;
Estate of Jameson, 267 F.3d at 366; Eisenberg, 155 F.3d at 50;
Estate of Davis, 110 T.C. 530.

                                 17
buyer would discount the price of stock in a closely-held

corporation to reflect the capital gains taxes that would be

payable by the buyer in the event of a subsequent liquidation of

the corporation, is wholly inapplicable here.   Second, while the

stock considered in the above cases would have built-in capital

gains even in the hands of a hypothetical buyer, the Retirement

Accounts at issue here would not constitute income in respect of

a decedent in the hands of a hypothetical buyer.   Income in

respect of a decedent can only be recognized by: (1) the estate;

(2) the person who acquires the right to receive the income by

reason of the decedent’s death; or (3) the person who acquires

the right to receive the income by bequest, devise, or

inheritance.   26 U.S.C. § 691(a)(1).   Thus, a hypothetical buyer

could not buy income in respect of a decedent, and there would be

no income tax imposed on a hypothetical buyer upon the

liquidation of the accounts.   Third, as we have seen, Congress

has provided relief, in § 691(c), from the income tax that would

be imposed on the decedent’s beneficiaries in the form of a

deduction for the estate taxes paid with respect to the inclusion

in the gross estate of the Retirement Accounts.    In contrast, in

the case of closely-held corporate stock, the capital-gains tax

potential survives the transfer to an unrelated third party, and

Congress has not granted any relief from the secondary tax.

     We therefore conclude that the district court did not err in

refusing to consider the potential federal income tax liability

                                18
to the beneficiaries when valuing the Retirement Accounts.   As

the district court stated, Congress has addressed the Estate’s

concerns in § 691(c).   The courts have no business improving on

Congress’s efforts.

                          IV. CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




                                19
