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settlement position characterization, and the Court instructed
the parties to address the issue in their arguments on brief.
Petitioners argue that respondent’s concessions, presented
at and before trial, indicating combined minority and
marketability discounts of up to 40 percent to the True companies
still in dispute, constituted admissions--clear, deliberate, and
unequivocal statements regarding questions of fact. Claiming
they relied on these admissions in presenting their case,
petitioners argue that they would be prejudiced if respondent
were allowed to change his position to claim that combined
minority and marketability discounts are less than 40 percent of
the prediscount values of any of the subject interests. We
disagree.
Statements made by respondent’s counsel during trial were
not clear, deliberate, or unequivocal as to the level of
discounts that respondent was or might be conceding. It is clear
that respondent had abandoned the determinations of value in the
statutory notices and had acknowledged that some minority and
marketability discounts were appropriate. However, respondent’s
counsel indicated that “Current IRS Value[s]” represented
different levels of combined discounts that could not be computed
by simply applying a 40-percent discount to the entity values
determined in the statutory notices or otherwise modified by the
Gustavson reports. Before the end of trial, respondent’s counsel
explained that different discounts applied for each company,
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