- 52 -
(9th Cir. 2001) [affg. in part and vacating and remanding in part
T.C. Memo. 1997-461].” The estate’s reply brief then focuses on
the foregoing citation to Estate of Mitchell v. Commissioner,
supra, in arguing that respondent does in fact bear the burden of
proof in this situation.
The Court of Appeals for the Ninth Circuit, to which appeal
in this case would normally lie, has addressed the issue of
burden of proof in valuation cases in a series of three recent
decisions. Estate of Mitchell v. Commissioner, supra; Estate of
Simplot v. Commissioner, 249 F.3d 1191 (9th Cir. 2001), revg. and
remanding 112 T.C. 130 (1999); Morrissey v. Commissioner, 243
F.3d 1145 (9th Cir. 2001), revg. and remanding Estate of Kaufman
v. Commissioner, T.C. Memo. 1999-119. In each of these cases,
the Commissioner determined an estate tax deficiency based upon
an increase in the fair market value, over that claimed on the
tax return, of shares in a closely held corporation. Estate of
Mitchell v. Commissioner, supra at 698-699; Estate of Simplot v.
Commissioner, supra at 1193; Morrissey v. Commissioner, supra at
1147. Subsequently, the Commissioner submitted for trial expert
reports opining, and/or the Commissioner conceded, that the value
of the subject stock was less than that asserted in the statutory
notice. Estate of Mitchell v. Commissioner, supra at 702; Estate
of Simplot v. Commissioner, supra at 1193-1194; Morrissey v.
Commissioner, supra at 1147. Confronting this scenario, the
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