Charles T. McCord, Jr. and Mary S. McCord, Donors - Page 92

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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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