- 74 - 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 thePage: Previous 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 Next
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