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to control for purposes of determining the assignee percentage
interest that petitioners transferred under the assignment
agreement to CFT (as well as the respective assignee percentage
interests that petitioners transferred under the assignment
agreement to petitioners’ children, the trusts, and the
Symphony). The confirmation agreement on which the majority
opinion relies was not executed until March 1996, 2 months after
the assignment agreement was effective, and is not the
controlling donative instrument.
Instead of referring to the confirmation agreement in
support of the position that petitioners transferred to CFT a
3.62376573-percent assignee interest in MIL, the majority opinion
maintains that there is in effect a valuation instruction in the
assignment agreement which mandates that result. According to
the majority opinion, pursuant to that purported valuation
instruction, the fair market value agreed upon by the donees to
determine the assignee percentage interest transferred to CFT (as
well as to determine the respective assignee percentage interests
transferred to petitioners’ children, the trusts, and the
Symphony) is fixed and may never change for purposes of
determining such interest, even if such value agreed upon by the
donees is ultimately determined not to be the fair market value
of such interest. The majority opinion concludes that therefore
the resulting assignee percentage interest transferred to CFT (as
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