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Thompson v. Commissioner, 382 F.3d 367, 386-387 (3d Cir. 2004)
(Greenberg, J., concurring and joined by Rosenn, J.),3 affg. T.C.
Memo. 2002-246. This majority in Thompson (Thompson majority)
“reject[ed] Stone on the quoted point [the referenced language]
as the Commissioner’s position [that the valuation of partnership
interests for purposes of section 2036(a) must take into account
valuation discounts] in no way reads the [adequate and full
consideration] exception out of section 2036(a) and the Tax Court
does not explain why it does.” Id. The Thompson majority went
3 I have found no law setting the precedential value of a
concurring opinion that garners a second vote so as also to be a
majority opinion of a Court of Appeals panel. Cf. Hunt v. Natl.
Broadcasting Co., Inc., 872 F.2d 289, 296 (9th Cir. 1989)
(recognizing the issue, but stating that it was unnecessary to
decide there). To my mind, such a concurring opinion is entitled
to the same respect as any other majority opinion of a panel.
See Greene v. Massey, 706 F.2d 548, 550 (5th Cir. 1983) (in
response to certification from the U.S. Court of Appeals for the
Fifth Circuit, the Supreme Court of Florida answered that a
concurring opinion by a Justice of that Court is the law of the
case if joined by a majority of that Court’s Justices); Detroit
v. Mich. Pub. Utils. Commn., 286 N.W. 368, 379 (Mich. 1939) (“It
is true that the views of Justice Fellows were expressed in a
separate concurring opinion. Views, however, expressed in
separate concurring opinions are the views of the court, when it
appears that the majority of the court concurred in such
separately expressed views”); Anderson v. Sutton, 293 S.W. 770,
773 (Mo. 1927)(“Views expressed in a separate concurring opinion
of an individual judge are not the views of the court, unless it
appears that the majority of the court concurred in such
separately expressed views”); see also State v. Dowe, 352 N.W.2d
660, 662 (Wis. 1984) (“In Outlaw [State v. Outlaw, 321 N.W.2d 145
(Wis. 1982)], the lead opinion represents the majority and is
controlling on the issues of the state’s burden and the existence
of abuse of discretion by that circuit court. However, the
concurring opinions represent the majority on the issue of the
test to be applied and therefore control on this point”).
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