-217-
Goldman v. Commissioner, 388 F.2d 476, 478 (6th Cir. 1967), affg.
46 T.C. 136 (1966); Lio v. Commissioner, 85 T.C. 56, 70 (1985),
affd. sub nom. Orth v. Commissioner, 813 F.2d 837 (7th Cir.
1987); see also Leibowitz v. Commissioner, T.C. Memo. 1997-243.
In fact, the regulations, by way of the used car example,
specifically adopt the price that a retail purchaser would pay
for an item in lieu of the price that a dealer would pay for it.
See Estate of Lemann v. United States, 73 AFTR 2d 2345, 2349, 94-
1 USTC par. 60159, at 84,195 (E.D. La. 1994) (rejecting prices
that a dealer would pay for estate jewelry in favor of the prices
which the customers would pay at auction). For this purpose, the
term “retail” does not denote that the most expensive source is
the only source for determining fair market value. Lio v.
72(...continued)
If the contribution is made in property of a type which
the taxpayer sells in the course of his business, the
fair market value is the price which the taxpayer would
have received if he had sold the contributed property
in the usual market in which he customarily sells, at
the time and place of the contribution and, in the case
of a contribution of goods in quantity, in the quantity
contributed. The usual market of a manufacturer or
other producer consists of the wholesalers or other
distributors to or through whom he customarily sells,
but if he sells only at retail the usual market
consists of his retail customers. [Sec. 1.170A-
1(c)(2), Income Tax Regs.]
These regulations are not pertinent to our inquiry. FNBC did not
“sell” swaps in the course of its business. Swaps were seldom
sold in a secondary market, and no entity similar to FNBC
actually purchased a swap during the relevant years with the
intent to resell it.
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