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SWIFT, J., concurring: The majority opinion adopts an
interpretation of the “fair market value” language of the formula
clause that recognizes the sophistication of the tax planning
before us and that gives significance to the failure of that
formula clause to use commonly recognized language in the estate
planning profession under which--had it been intended--a fair
market value determination (and an allocation between the donees
of the gifted interest based thereon) “as finally determined for
Federal gift tax purposes” would have been made explicit. In my
opinion, the failure of the formula clause to reflect such well-
recognized language belies petitioners’ claim that such language,
interpretation, and result were intended and now should be
inferred.
Under the majority’s interpretation of the formula clause,
the abuse potential inherent therein is essentially negated.
If, however, petitioners’ interpretation of the formula
clause were adopted, under which petitioners claim an increasd
charitable deduction equal to all excess value of the gifted
interest over $7,044,093, as finally determined for Federal gift
tax purposes, without property representing such excess value
actually passing to charity, the long-standing “reasonable
probability” and “public policy” doctrines applicable generally
to gifts would become applicable. See, e.g., Hamm v.
Commissioner, T.C. Memo. 1961-347, affd. 325 F.2d 934 (8th Cir.
1963), applying the reasonable probability standard to the
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