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LARO, J., dissenting: A thin majority holds today that
“each petitioner is entitled to a charitable contribution
deduction under section 2522 of $207,510 resulting from the
transfer to CFT [Communities Foundations of Texas, Inc.].”
Majority op. at 65. Each petitioner reported for that transfer a
charitable deduction of $162,172.60, and CFT is not entitled to
enjoy any funds in excess of that amount. In that the majority
respects the subject transaction and allows each petitioner to
deduct a charitable contribution of approximately $45,000 for
value that a charity will never enjoy, I dissent.
1. Majority Applies Its Own Approach
To reach the result that the majority desires, the majority
decides this case on the basis of a novel approach neither
advanced nor briefed by either party and concludes that the Court
need not address respondent’s arguments as to public policy and
integrated transaction. Majority op. p. 64 note 47.
Specifically, under the majority’s approach (majority’s
approach), the term “fair market value” as used in the assignment
agreement denotes simply the value ascertained by the parties to
that agreement (or, in certain cases by an arbitrator) and not
the actual amount determined under the firmly established
hypothetical willing buyer/hypothetical willing seller test that
has been a fundamental part of our Federal tax system for decades
on end. Majority op. p. 64 note 47; see also United States v.
Cartwright, 411 U.S. 546, 550-551 (1973) (“The willing buyer-
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