Bank One Corporation - Page 118

                                        -198-                                         
          effect of FNBC’s failure to take netting into account was large             
          and systematic.                                                             
          VI.  Application of Fair Market Value                                       
               A.  Overview                                                           
               As just discussed, we will respect FNBC’s mark-to-market               
          method for Federal income tax purposes if it meets the fair                 
          market value requirements of section 475.  FNBC’s application of            
          its mark-to-market method will meet those requirements only if              
          the method arrives at the fair market value of FNBC’s swaps and             
          does so as of the applicable valuation dates.                               
               The term “fair market value” is used throughout the Internal           
          Revenue Code, but has never been defined by Congress.64  The                


          64 As the Court noted in Estate of Auker v. Commissioner,                   
          T.C. Memo. 1998-185:                                                        
                    Disputes over valuation fill our dockets, and for                 
               good reason.  We approximate that 243 sections of the                  
               Code require fair market value estimates in order to                   
               assess tax liability, and that 15 million tax returns                  
               are filed each year on which taxpayers report an event                 
               involving a valuation-related issue.  It is no mystery,                
               therefore, why valuation cases are ubiquitous.  Today,                 
               valuation is a highly sophisticated process.  We cannot                
               realistically expect that litigants will, will be able                 
               to, or will want to, settle, rather than litigate,                     
               their valuation controversies if the law relating to                   
               valuation is vague or unclear.  We must provide                        
               guidance on the manner in which we resolve valuation                   
               issues so as to provide a roadmap by which the                         
               Commissioner, taxpayers, and valuation practitioners                   
               can comprehend the rules applicable thereto and use                    
               these rules to resolve their differences.  Clearly                     
               articulated rules will also assist appellate courts in                 
               their review of our decisions in the event of an                       
                                                             (continued...)           




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