S.K. Johnston, III and Julie N. Boyle f.k.a. Julie N. Johnston, et al. - Page 43

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            the fair market value of an easement usually will be determined                           
            indirectly by applying a "before-and-after" analysis, thereby                             
            determining the negative effect the easement has on the value of                          
            the total property.15  Thus, the difference between the fair                              
            market value of the total property before the granting of the                             
            easement and the fair market value of the property after the                              
            grant is the fair market value of the easement.  Id.                                      
                  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.  See generally Stanley Works v.                          
            Commissioner, 87 T.C. 389, 400 (1986); Hilborn v. Commissioner,                           
            85 T.C. 677, 688 (1985); sec. 1.170A-14(h)(3)(i) and (ii), Income                         
            Tax Regs.                                                                                 
                  In determining the before and after highest and best use,                           
            the fair market value of property is not affected by whether the                          
            owner actually has put the property to its highest and best use.                          
            Symington v. Commissioner, supra at 896; Stanley Works v.                                 
            Commissioner, supra.  Rather, the realistic, objective potential                          
            uses for property control the valuation thereof.  Symington v.                            
            Commissioner, supra.  Thus, in determining the reasonable and                             
            probable use that supports the highest present value we focus on                          


            15    The before-and-after method of valuing conservation                                 
            easements is approved by the IRS.  See Rev. Rul. 73-339, 1973-2                           
            C.B. 68, as clarified by Rev. Rul. 76-376, 1976-2 C.B. 53, and                            
            endorsed by Congress in connection with the adoption of the Tax                           
            Treatment Extension Act of 1980, S. Rept. 96-1007 (1980), 1980-2                          
            C.B. 599, 606.                                                                            



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