Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 29

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          decedent had previously reported as taxable income.  Therefore,             
          at the time of her death, decedent had statutory rights pursuant            
          to section 1341(a) to receive tax benefits based on whatever                
          amount she ultimately had to pay Exxon.  Petitioner is entitled             
          to an estate tax deduction in the amount paid to satisfy Exxon's            
          claim, as well as section 1341(a) relief for payment of the same            
          claim.  Exxon's claim decreases the estate's assets while the               
          right to section 1341(a) relief increases the estate's assets.              
          Under these circumstances, it would be inappropriate to consider            
          one in the determination of the taxable estate while excluding              
          the other.                                                                  
               The amount for which a claim is ultimately settled is                  
          evidence of its value.  See United States v. Simmons, supra at              
          218 (finding the amount for which a claim was eventually settled            
          to be "highly indicative" of the value of the claim).  In the               
          instant case, there was no evidence introduced to show that the             
          value of the contingent right to section 1341(a) relief at                  
          decedent's death was less than the amount that will actually be             
          received.  On brief, petitioner confined its argument to whether            
          the contingent right to section 1341(a) relief was or was not an            
          asset includable in the gross estate.  Petitioner did not argue             
          that, in the event we find the right to section 1341(a) relief              
          includable in the gross estate, the value of this right for                 
          estate tax purposes is anything less than the amount of the                 
          benefit ultimately received.                                                




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