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Court of Appeals in each instance indicated that the deviation in
the Commissioner’s litigation posture from the valuation stated
in the notice resulted in a forfeiture of any presumption of
correctness and/or a placing of the burden of proof on the
Commissioner. Estate of Mitchell v. Commissioner, supra at 702;
Estate of Simplot v. Commissioner, supra at 1193; Morrissey v.
Commissioner, supra at 1148-1149.
Under the rule of Golsen v. Commissioner, 54 T.C. 742, 757
(1970), affd. 445 F.2d 985 (10th Cir. 1971), this Court will
“follow a Court of Appeals decision which is squarely in point
where appeal from our decision lies to that Court of Appeals”.
We also acknowledge that the notice of deficiency issued with
respect to decedent’s estate tax placed a value of $1,750,000 on
decedent’s interest in the assets held by HFLP, while the expert
report and posttrial briefs submitted by respondent advocate a
value of $1,708,134. Nonetheless, the record in this case is
such that our conclusion would be the same regardless of any
presumption of correctness or the falling of the burden of proof.
We therefore need not further probe the implications here of the
above-described decisions by the Court of Appeals for the Ninth
Circuit and shall base our ruling on the preponderance of the
evidence.
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