Arbor Towers Associates, Ltd. - Page 14




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          position that is so supported will prevail.  See Estate of                  
          Scanlan v. Commissioner, supra.                                             
               We decline to rely on Wieme's testimony as to the "value in            
          use".  As a threshold matter, the conclusion derived by an                  
          expert's analysis must be reached by application of the correct             
          standard before we will rely on that conclusion.  That was not              
          done in this case.  The applicable regulations mandate the use of           
          a "fair market value" standard as defined therein.  See sec.                
          1.170A-1(c)(1) and (2), Income Tax Regs.  That standard                     
          contemplates a hypothetical seller and buyer and precludes                  
          consideration of the specific characteristics of any particular             
          seller or buyer.  The $12.2 million figure upon which Arbor                 
          relies was derived not by employing the applicable standard but             
          by employing an improper standard which took into account the               
          specific buyer, U of M, and its characteristics.  Even if we were           
          to agree with Wieme that the "value in use" to U of M was $12.2             
          million, and we stop short of so doing, this would not aid Arbor            
          in its quest for a charitable contribution deduction since that             
          figure does not represent the "fair market value" of Wolverine              
          Tower on the valuation date within the meaning of the                       
          regulations.                                                                
               The standard employed by Wieme to derive the $9 million                
          "market value" figure resembles much more closely the "fair                 
          market value" standard applicable in this case.  Were we to rely            





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