Lucky Stores, Inc. and Subsidiaries - Page 21

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        to remain abreast of the competition, so it stands to reason that             
        petitioner would try to avoid getting a reputation for selling stale          
        bread by leaving it on the shelves longer than its competition did.           
            The parties stipulated that regional and national bakers that             
        have a substantial share of the California pan bread market sell              
        their bread, after it is pulled from the shelves, at thrift or                
        bakery outlets at discounts ranging from 20 to 70 percent.                    
        Undoubtedly petitioner could have sold its bread at thrift outlets            
        had it chosen to do so, but this fact does not establish that                 
        petitioner could not sell its 4-day bread at regular retail prices.           
        At best it merely tends to show that petitioner could have sold               
        "old" bread at a discount when it had in effect announced to the              
        public that the bread being offered at a discount was old.                    
            Respondent points to the general definition of fair market value          
        contained in the first sentence of section 1.170A-1(c)(2), Income             
        Tax Regs., and argues that 4-day bread could not have been sold to            
        "fully informed consumers," that common sense forces the conclusion           
        that the Sunday sales were the product of "ignorance on the part of           
        the customer," and "compulsion; i.e., the older bread was all that            
        was left and the customer had no other choice."  But by focusing              
        solely on the first sentence of the regulation, as respondent has             
        done, it is necessary to disregard the rest of the regulation which,          
        as we have already pointed out, provides the specific method by               
        which fair market value is determined in the context of contributed           





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