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considerable period of time before it was donated. Instead, it was
very much "fast in, fast out," inventory. Consequently, while we do
not necessarily quarrel with the Commissioner's conclusions in Rev.
Rul. 85-8, based upon its specific facts, we do not believe the
revenue ruling suggests that similar conclusions necessarily need be
reached in this case.
Petitioner retained Professor Daniel L. Rubinfeld to furnish an
expert opinion as to the value of the 4-day-old bread that
petitioner donated. Professor Rubinfeld teaches law and economics
at the University of California at Berkeley and is a principal with
the Law and Economics Consulting Group. His expert report is a
statistical analysis based upon a physical count of petitioner's
bread sales over a 2-week period in six representative stores.
Professor Rubinfeld concludes from his statistics that, if bread is
only a few days old, consumers are indifferent to its age and will
pay full retail price for it.
Neither party addresses Professor Rubinfeld's statistical
analysis on brief (although respondent does attack certain perceived
defects in the "survey" upon which it is based). Professor
Rubinfeld's conclusion is founded upon certain statistical averages
referred to in his report. This report, however, fails to explain
why these statistical averages are reliable estimates; the standard
deviations of these averages are left uninterpreted. Without some
assistance from the parties, therefore, we are unwilling to
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