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remaining unimproved real properties, we shall not consider that
argument.9 It is well settled that the Court will not consider
issues raised for the first time on brief when to do so would
prevent the opposing party from presenting evidence that that
party might have proffered if the issue had been timely raised.
See DiLeo v. Commissioner, 96 T.C. 858, 891 (1991), affd. 959
F.2d 16 (2d Cir. 1992); Shelby U.S. Distribs., Inc. v. Commis-
sioner, 71 T.C. 874, 885 (1979). In the present case, the estate
had no opportunity to argue, let alone present evidence, relating
to respondent's new theory.
We shall now determine whether, based on the record before
us, an absorption discount should be applied in determining the
aggregate fair market value of the remaining unimproved real
properties owned by Marrero Land on the valuation date and, if
so, the amount of such a discount. The concept of an absorption
9Even if we were to consider such an argument, respondent
would have the burden of proof, and the record does not support
respondent's contention that "Marrero Land did not contemplate
liquidating its remaining vacant land". To the contrary, we have
found that it was anticipated as of the valuation date that the
highest and best use of at a minimum approximately 75 percent of
the remaining unimproved real properties was to sell them.
Indeed, respondent complains in respondent's answering brief that
Marrero Land did not "contemplate selling all the vacant land
[remaining unimproved real properties] as a 'portfolio' or unit",
thereby conceding that Marrero Land did contemplate selling that
land. On the record before us, we find the instant case to be
distinguishable from Estate of Andrews v. Commissioner, 79 T.C.
938 (1982), and Estate of Auker v. Commissioner, T.C. Memo. 1998-
185, and respondent's reliance on those cases to be misplaced.
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