Estate of Cyril I. Magnin, Deceased, Donald Isaac Magnin, Executor - Page 46




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          control;32 thus, Joseph’s stock has not been demonstrated to have           
          the “swing vote characteristics” described in Estate of Winkler             
          v. Commissioner, supra.33                                                   
                    1.   Value of Consideration Received by Cyril                     
               No calculations were presented by the estate as to the                 
          values of the interests if a hypothetical buyer would not gain              
          control as a result of the transfer by Joseph.  Accordingly, the            
          estate has failed to present sufficient evidence to establish               
          that the values it assigns to the interests at issue are reliable           
          and accurate under the willing buyer and willing seller standard            
          set forth in the estate and gift tax regulatory provisions.                 
               Although it claims to have used the hypothetical willing               
          buyer and willing seller standard, in reality, the estate applied           
          an actual buyer and actual seller standard because it based its             
          valuation on parties in identical positions as Joseph and Cyril.            
          It chose to look at the actual transaction and the logical                  
          inference that Cyril would have paid more for Joseph’s minority-            
          interest-voting rights because they would give Cyril voting                 
          control when added to his existing minority-interest-voting                 

               32According to the estate, Cyril lacked funds to purchase              
          Joseph’s 28.26 percent of voting stock.  The estate states on               
          brief that Cyril lacked the funds to exercise his option to                 
          purchase Joseph’s 18,158 shares at $1 per share.                            
               33This Court did not apply a control premium for voting                
          control in a similar situation where the stock being valued had             
          “‘swing vote’ potential”.  Estate of Simplot v. Commissioner, 112           
          T.C. 130, 176-179 (1999).                                                   





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