Charles A. and Marian L. Derby, et al. - Page 43




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          appraisal).  The allocation to each petitioner of a share of the            
          value of the intangible assets of the newly-formed medical group,           
          though performed by a nonexpert (Dr. Levin, one of petitioners),            
          was reasonable, petitioners argue, and was ratified by expert               
          opinion.  In addition, petitioners argue, the Commissioner                  
          indicated in a determination letter and in certain training                 
          manuals that a charitable contribution deduction was available in           
          similar circumstances for the transfer of medical practice                  
          intangible assets in connection with the acquisition of a group             
          medical practice by a section 501(c)(3) organization.                       
          Consequently, petitioners contend, respondent has a duty of                 
          consistency with the foregoing in his litigating position in this           
          case.                                                                       
               Respondent disputes all of petitioners' arguments.                     
          Respondent contends that petitioners have failed to show that the           
          value of the assets they transferred to SMF, including any                  
          intangible assets of their medical practices, exceeded the values           
          of the consideration each received in exchange therefor.                    
          Consequently, respondent argues, petitioners have failed to                 
          satisfy the test outlined in United States v. Am. Bar Endowment,            
          supra.  Respondent further argues, relying on United States v. Am.          
          Bar Endowment, supra, and Hernandez v. Commissioner, supra, that            
          petitioners lacked donative intent in light of the substantial              
          benefits that they expected to, and did in fact, receive in return          







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