- 110 -
willing seller test of fair market value is nearly as old as the
federal income, estate, and gifts taxes themselves”). Whereas
the majority ostensibly recognizes that firmly established test
in its determination of the fair market value of the subject
property, majority op. p. 64 note 46, the majority essentially
holds that the parties to the assignment agreement are not bound
by that test when they themselves ascertain the fair market value
of that property, id. at 61-64.
As I understand the majority’s rationale, the parties to the
assignment agreement are not bound by that test because the
assignment agreement only uses the phrase “fair market value” and
not the phrase “fair market value as finally determined for
Federal gift tax purposes”. To my mind, the subject property’s
fair market value is its fair market value, notwithstanding
whether fair market value is ascertained by the parties or
“finally determined for Federal gift tax purposes”. I know of
nothing in the tax law (nor has the majority mentioned anything)
that provides that property such as the subject property may on
the same valuation date have one “fair market value” when
“finally determined” and a totally different “fair market value”
if ascertained beforehand.1 The majority’s interpretation of the
1 The three regulatory provisions relied upon by the
majority (majority op. p. 64 note 46) in support of its position
do not adequately support that position. Sec. 1.664-
2(a)(1)(iii), Income Tax Regs., for example, uses the phrase
(continued...)
Page: Previous 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 NextLast modified: May 25, 2011