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properties because petitioner paid rents in excess of fair market
rental value on two of the three properties for which respondent
submitted evidence.9 We do not draw the inference respondent
asks for.
Petitioner is entitled to prevail if a preponderance of the
evidence shows that the rents paid were not in excess of the
respective fair market rental values of the remaining properties.
Petitioner has come forward with evidence to show that the rental
rates it paid represented fair market rental values for the
remaining three properties. Petitioner submitted testimony from
its president and two expert witnesses to support its rental
values. Because respondent failed to submit any contrary direct
evidence, a preponderance of the evidence supports petitioner’s
position.
While the preponderance of the evidence supports
petitioner’s rental rates, we are not entirely satisfied by the
evidence presented by the parties. Petitioner’s evidence was
subject to all the infirmities noted above with respect to the
expert testimony of Messrs. McIntosh and Vanderbundt. We refer
specifically to the fair market values of the remaining
properties found by Mr. McIntosh in his original report for
estate planning purposes, which, we have no doubt, were
9Of course, respondent asserted at trial and on brief,
without submitting any evidence to support his assertion, that
the rents for the three remaining properties were excessive.
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