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of M in the amount of $1.6 million, 50 percent of the difference
between the sale price of $9 million and the $12.2 million "value
in use".4 Respondent determined Arbor is not entitled to a
charitable contribution deduction and disallowed the deduction in
full.
OPINION
We are once again obliged to delve into the value of
property, sifting through expert testimony and applying our
judgment. At the outset, we must determine which party bears the
burden of proof. Petitioner claims respondent does. We
disagree.
Petitioner argues that the burden of proof shifts to
respondent because the FPAA disallows the charitable contribution
deduction in full without "determining" the value of Arbor
Towers. Petitioner contends that, since respondent failed to
offer evidence of value (i.e., an expert report), he has failed
to meet his burden of proof. Petitioner misconstrues
respondent's determination. On its 1993 return, Arbor set forth
the $9 million sale price for the building and land, and the
$12.2 million alleged fair market value. In disallowing the
deduction, respondent asserts that the fair market value of Arbor
Tower was not in excess of the $9 million sale price.
4The record does not indicate why 50 percent was deducted.
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