Charles T. McCord, Jr. and Mary S. McCord, Donors - Page 81

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          for several years.  Rather, the assignment agreement contemplates           
          the allocation of the gifted interest based on the assignees’               
          best estimation of that value.  Moreover, each of the assignees’            
          percentage interests was determined exactly as contemplated in              
          the assignment agreement (without recourse to arbitration), and             
          none can complain that they got any less or more than petitioners           
          intended them to get.45  Had petitioners provided that each donee           
          had an enforceable right to a fraction of the gifted interest               
          determined with reference to the fair market value of the gifted            
          interest as finally determined for Federal gift tax purposes,46             
          we might have reached a different result.  However, that is not             
          what the assignment agreement provides.                                     


               45  We suppose that, at least in theory, there might be a              
          difference between (1) petitioners’ and the assignees’                      
          expectation on Jan. 12, 1996 (the valuation date), regarding the            
          value of the portion of the gifted interest passing to CFT and              
          (2) the value of that portion as subsequently determined by the             
          assignees.  However, no one has suggested how to value the first            
          quantity or that, on the facts before us, the difference would be           
          significant.                                                                
               46  See, e.g., sec. 1.664-2(a)(1)(iii), Income Tax Regs.               
          (providing that a sum certain may be expressed as a fraction or             
          percentage of the value of property “as finally determined for              
          Federal tax purposes”, but requiring that actual adjusting                  
          payments be made if such finally determined fair market value               
          differs from the initially determined value); sec. 20.2055-                 
          2(e)(2)(vi)(a), Estate Tax Regs. (similar); sec. 25.2702-                   
          3(b)(1)(ii)(B), Gift Tax Regs. (similar); Rev. Proc. 64-19, 1964-           
          1 C.B. 682 (discussing conditions under which the Federal estate            
          tax marital deduction may be allowed where, under the terms of a            
          will or trust, an executor or trustee is empowered to satisfy a             
          pecuniary bequest or transfer in trust to a decedent's surviving            
          spouse with assets at their value as finally determined for                 
          Federal estate tax purposes).                                               




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