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The parties' disagreement turns upon the appropriate
valuation of the Johnco shares for purposes of determining the
amount of Johnco stock bequeathed to Andrew pursuant to the
unified credit bequest in John's will. Respondent contends that
the Johnco share value reported on the estate tax return for
John's estate as John's date-of-death value--namely, $86.80 per
share--must be used. Respondent thus calculates that 1,614
shares of Johnco stock were required to fund a unified credit
bequest of $140,15010 (1,614 shares x $86.80 = $140,095.20),
leaving 81,251 in John's residuary estate inherited by decedent.
In respondent's view, since decedent served as executor of John's
estate and filed the return on which the $86.80 per-share value
as of John's date of death was reported, and this return has not
been amended, the $86.80 per-share value is an admission which
should be used as evidence of such value.
9(...continued)
current information.”
We believe that respondent's change from the position taken
in the notice, after petitioner acceded to it in the petition,
raises a "new matter" as that term is used in Rule 142, because
the ascertainment of the number of Johnco shares in decedent's
estate potentially requires different evidence, namely, of the
value of the Johnco shares at John's date of death, as opposed to
decedent's date of death. Accordingly, the burden of proof
shifts to respondent to establish that the number of Johnco
shares in decedent's estate exceeded 80,485. (Since respondent
first signaled this change of position in his answer by averring
that the number of Johnco shares in decedent's estate was
"disputed", respondent was not required to seek leave to amend
his answer in order to put the issue of the number of shares
before us.)
10 This figure was the amount reported on the estate tax
return for John's estate as Andrew's unified credit bequest.
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