Bank One Corporation - Page 140

                                        -218-                                         
          Commissioner, supra at 70.  Fair market value is determined in              
          the market most commonly used by the ultimate consumer, and the             
          value in that market may or may not represent the highest value             
          for the product that is the subject of the valuation.  Here, with           
          respect to the interest rate swaps in issue, we believe that the            
          applicable market is a market comprising largely end users                  
          (including dealers acting as end users).                                    
               Having identified the appropriate market for valuation                 
          purposes, we determine the fair market value of FNBC’s swaps at             
          the amount that an ultimate consumer/hypothetical buyer would in            
          that market pay for the swaps on the dates of valuation, bearing            
          in mind that the swaps are considered sold by a hypothetical                
          seller.  Petitioner asks the Court to view the hypothetical buyer           
          as a dealer entering into swaps intending to earn a profit.  We             
          decline to do so.  We believe it inappropriate to limit the                 
          hypothetical willing buyer to the requested subset of buyers                
          rather than viewing the hypothetical buyer as a member of the               
          broad group of potential buyers referred to in the accepted                 
          definition of willing buyer.  In addition to the fact that even             
          petitioner acknowledges that dealers enter into swaps without               
          expecting to earn a profit, e.g., to hedge risks in its portfolio           
          or to generate business, valuation at the equivalent of the                 
          dealer’s own bid or ask price improperly limits consideration to            
          buyers who believe they are paying less than fair market value.             






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