- 33 -
be taken into account. See United States v. Fuller, 409 U.S.
488, 490 (1973) (citing Olson v. United States, 292 U.S. 246, 256
(1934)); Dorsey v. Commissioner, T.C. Memo. 1990-242 (with
respect to the charitable contribution of a facade easement:
“The fair market value of the easement should be based on the
highest and best use for the property on its valuation date,
including potential development.”). In Olson v. United States,
supra at 257, the Supreme Court noted, however:
Elements affecting value that depend upon events or
combinations of occurrences which, while within the
realm of possibility, are not fairly shown to be
reasonably probable, should be excluded from
consideration, for that would be to allow mere
speculation and conjecture to become a guide for the
ascertainment of value--a thing to be condemned in
business transactions as well as in judicial
ascertainment of truth. * * *
Had petitioners not conveyed the easement to the county,
certainly there was the potential for their developing the land
together with either or both of Messrs. Barnes and Mullinix.
Mr. Mullinix testified regarding joint action with petitioners;
and the parties have stipulated that, although Mr. Barnes did not
testify, his testimony would have been consistent with the
testimony of Mr. Mullinix. Mr. Mullinix testified that there
were benefits to either developing the properties jointly or
jointly participating in the Program. He testified that there
was no written or enforceable agreement for joint action and that
there was “some talk” about Mr. Barnes and Mr. Browning’s
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