1999 Tax Ct. Memo LEXIS 250">*250 Decision will be entered for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, 1999 Tax Ct. Memo LEXIS 250">*251 JUDGE: Respondent issued petitioner a notice of final partnership administrative adjustment (FPAA) on behalf of Arbor Towers Associates, Ltd. (Arbor), wherein respondent determined Arbor was not entitled to its claimed charitable contribution deduction in the amount of $ 1.6 million for 1993. This case results from petitioner's petition under
1. Whether the presumption of correctness attaches to the
determinations in respondent's FPAA. We hold it does.
2. Whether
contribution deduction of $ 1.6 million in 1993. We hold it does not.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The stipulations and attached exhibits1999 Tax Ct. Memo LEXIS 250">*252 are incorporated herein by this reference. Arbor had its principal place of business in New York, New York, when the petition was filed.
Arbor was a New Jersey limited partnership during 1992 and 1993, and James B. Mintzer (Mintzer) was Arbor's general partner and tax matters partner. Mintzer had a longstanding business relationship with attorney Frederick Gordon (Gordon), who served as the general partner of Wolverine Towers Associates (Wolverine) from 1972 until its dissolution in 1997.
In 1974, Wolverine owned a plot of land (the land) located at 3001 S. State Street in Ann Arbor, Michigan. In order to develop a commercial office tower upon the land, Wolverine entered into a financing arrangement with the Trustees of the General Electric Pension Trust (G.E.) wherein G.E. purchased the land for $ 850,000, leased the land back to Wolverine for 55 years (the land lease), and lent Wolverine $ 7,650,000. Wolverine built an 11-story office building on the land which was named the Wolverine Tower Office Building (Wolverine Tower or the building).
By 1979, Wolverine began experiencing financial troubles and fell behind on the land lease and mortgage payments. On January 31, 1979, Wolverine1999 Tax Ct. Memo LEXIS 250">*253 entered into a contract for sale and leaseback (the leaseback contract) with Arbor wherein Wolverine sold to Arbor both its interest in the land lease and its interest in Wolverine Tower and contemporaneously leased back Wolverine Tower and the land from Arbor. The leaseback contract called for a purchase price of $ 12.6 million to be paid with interest over 5 years. After execution of the leaseback contract, Arbor owned Wolverine Tower and, having assumed the land lease, was the lessee of the land. Wolverine was the lessee of the building and the sublessee of the land from Arbor. Wolverine continued to operate the building and continued to be the lessor under the various occupancy leases in effect.
By 1992, Arbor and Wolverine wanted to sell their respective interests in Wolverine Tower and the land. On behalf of both parties, Gordon hired a real estate broker and listed the property for sale. On December 31, 1992, Arbor and Wolverine entered into a contract (the contract) with the University of Michigan (U of M) to sell Wolverine Tower and their respective interests in the land as lessee and sublessee, with a closing date set for early 1993. 2 The contract set the purchase price1999 Tax Ct. Memo LEXIS 250">*254 at the "fair value" of the interests being sold as determined by an appraisal to be obtained by Arbor and Wolverine. The appraisal obtained by Arbor and Wolverine concluded the "fair value" of the property was $ 9 million as of December 31, 1992, and U of M purchased the property for that price on February 25, 1993. 3 Although a "value in use" appraisal was not required by the contract, Gordon requested that the appraiser determine the "value in use" of Wolverine Tower specifically to U of M for the purpose of determining the amount of a charitable contribution deduction, if any. The appraisal concluded that the "value in use" to U of M was $ 12.2 million.
To Arbor's 1993 Form 1065, U.S. Partnership Return of Income, it attached a Form 8283, Noncash1999 Tax Ct. Memo LEXIS 250">*255 Charitable Contributions, wherein it claimed a charitable contribution to U of M in the amount of $ 1.6 million, 50 percent of the difference between the sale price of $ 9 million and the $ 12.2 million "value in use". 4 Respondent determined Arbor is not entitled to a charitable contribution deduction and disallowed the deduction in full.
OPINION
We are once again obliged to delve into the value of property, sifting through expert testimony and applying our judgment. At the outset, we must determine which party bears the burden of proof. Petitioner claims respondent does. We disagree.
Petitioner argues that the burden of proof shifts to respondent because the FPAA disallows the charitable contribution deduction in full without "determining" the value of Arbor Towers. Petitioner contends that, since respondent failed to offer evidence of value (i.e., an expert report), he has failed to meet his burden of proof. Petitioner misconstrues respondent's determination. 1999 Tax Ct. Memo LEXIS 250">*256 On its 1993 return, Arbor set forth the $ 9 million sale price for the building and land, and the $ 12.2 million alleged fair market value. In disallowing the deduction, respondent asserts that the fair market value of Arbor Tower was not in excess of the $ 9 million sale price. Respondent's failure to produce an expert report does not in itself allow petitioner to prevail on the issue of valuation. See
1999 Tax Ct. Memo LEXIS 250">*257 Turning to the primary issue, we note petitioner claimed the deduction in question under
Regarding the first theory, we reject respondent's contention that Arbor did not own an interest in Wolverine Tower to convey to U of M. The leaseback contract clearly conveyed to Arbor both the "improvements" on the land and Wolverine's interest in the land lease. Although we are unable to find that Wolverine executed a deed transferring the building from Wolverine to Arbor, a deed was not required to transfer ownership under the facts herein. The leaseback1999 Tax Ct. Memo LEXIS 250">*258 contract stated that upon satisfactory completion of the leaseback contract terms and payments, Wolverine was to deliver to Arbor "a duly executed warranty bill of sale, * * * of the Improvements, Fixtures and Equipment, sufficient to transfer to the Purchaser the title to the Improvements, Fixtures and Equipment". While petitioner's case would have been strengthened by evidence that the contemplated "bill of sale" was ultimately executed, the absence of this is not controlling. 6 Gordon's testimony that Arbor acquired Wolverine Tower under the leaseback contract is corroborated by documentary evidence. On the totality of this record, we conclude that Arbor acquired Wolverine Tower under the leaseback contract and owned it until it was sold to U of M. 7
1999 Tax Ct. Memo LEXIS 250">*259 We now turn to whether the sale was a bargain sale resulting in a charitable contribution. This will turn on whether Arbor sold Wolverine Tower to U of M for less than its fair market value. We hold it did not. A sale of property to a
Fair market value is a question of fact, and the trier of fact must weigh all relevant evidence of value and draw appropriate inferences. See
Respondent contends that the fair market value of Wolverine Tower on the date of the alleged gift 9 was the sale price of $ 9 million. Respondent argues Arbor's expert supports this determination. Arbor offered the testimony of Donald Wieme (Wieme), 10 whom we recognized as an expert in real estate valuation. Wieme determined two values for Wolverine Tower using a valuation date of December 31, 1992. First, Wieme determined that the "market value" was $ 91999 Tax Ct. Memo LEXIS 250">*263 million. In reaching this value, Wieme concluded the highest and best use of Wolverine Tower was "represented by its current use as an 11 story general office facility with adjacent one story extension." Wieme employed a sale comparison method, an income capitalization method, and a cost method. Wieme took into account various data on Ann Arbor, Michigan (Washtenaw County), including its location, demographics, population, and economy. Wieme followed an industry definition of the term "market value", under which the term meant:
1999 Tax Ct. Memo LEXIS 250">*264 "Market value" means the most probable price which a
property should bring in a competitive and open market
under all conditions requisite to a fair sale, the buyer and
seller each acting prudently and knowledgeably, and assuming
the price is not affected by undue stimulus. Implicit in this
definition is the consummation of a sale as of a specified date
and the passing of title from seller to buyer under conditions
whereby:
1. Buyer and seller are typically motivated;
2. Both parties are well informed or well advised, and
each acting in what he considers his own best
interest;
3. A reasonable time is allowed for exposure in the
open market;
4. Payment is made in terms of cash in U.S. dollars
or in terms of financial arrangements comparable
thereto; and
5. The price represents the normal consideration for
the property sold, unaffected by special or
creative financing or sale concessions granted by
anyone associated with1999 Tax Ct. Memo LEXIS 250">*265 the sale.
Having determined the "market value" was $ 9 million, Wieme modified his analysis to determine the "value in use" specifically to U of M, concluding the "value in use" was $ 12.2 million. 11 In distinguishing between the $ 9 million figure and the $ 12.2 million figure, Wieme testified:
Within the preceding pages, we have formulated a
value indication for the subject building based on the premise
that the subject would be acquired by a 'typical'
purchaser/investor and would continue to be utilized as a
general office, multi-tenant facility. The reality of the
situation, however, is that the subject building was acquired
by the University of Michigan.
* * * * * * *
In an effort to identify1999 Tax Ct. Memo LEXIS 250">*266 the Value In Use of the subject
building specifically to the University of Michigan, the
appraisers have performed a second discounted cash flow
analysis. The Value In Use is the 'value a specific property
has for a specific use' and this value is not necessarily
synonymous with market value.
We have wide discretion when it comes to accepting expert testimony. Sometimes, an expert will help us decide a case. See, e.g.,
We decline to rely on Wieme's testimony as to the "value in use". As a threshold matter, the conclusion derived by an expert's analysis must be reached by application of the correct standard before we will rely on that conclusion. That was not done in this case. 1999 Tax Ct. Memo LEXIS 250">*268 The applicable regulations mandate the use of a "fair market value" standard as defined therein. See
The standard employed by Wieme to derive the $ 9 million "market value" figure resembles much more closely the "fair market value" standard applicable in this case. Were we to rely on this figure, this too would leave unsubstantiated Arbor's claim to a charitable contribution deduction since the $ 9 million was the sale price. While we have1999 Tax Ct. Memo LEXIS 250">*269 other significant concerns with Wieme's testimony, including that he valued the building 2 months before the valuation date with no analysis of whether the applicable assumptions remained unchanged, our holding that his testimony is unreliable because of the application of an improper standard renders unnecessary further discussion of those concerns. Petitioner has failed to prove that the fair market value of Wolverine Towers was greater than the $ 9 million sale price. 12 We sustain respondent's determination.
To reflect the foregoing,
Decision will be entered for respondent.
1. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the year in issue. Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated.↩
2. Contemporaneously with the sale of Wolverine Towers, on Dec. 30, 1992, G.E. sold the land to the University of Michigan (U of M) for $ 8 million.↩
3. The $ 9 million figure was allocable solely to the purchase of Wolverine Tower and not to the lease interests in the land.↩
4. The record does not indicate why 50 percent was deducted.↩
5. We note also petitioner seeks improperly to apply burden- shifting principles of unreported income cases to this deduction case. See
6. The record contains no evidence of whether a bill of sale or other document (in addition to the leaseback contract) conveying the title to the improvements was executed.↩
7. To embrace respondent's theory we would have to find U of M paid the $ 9 million solely to buy out the interests of Arbor and Wolverine in the land lease. This makes no sense and is not supported by the record.↩
8. Respondent does not raise the issue of whether donative intent was lacking on these facts.↩
9. Respondent contends the date of the gift was Dec. 31, 1992, the date the contract was signed. Petitioner contends the date of the gift was Feb. 25, 1993, the date the contract closed.↩
10. eme holds a bachelor of arts from Wayne State University and has been appraising real estate since 1964. He holds several professional designations, including the MAI designation (American Institute of Real Estate Appraisers), the SRPA designation (senior real estate property appraiser), and the SRA designation (senior residential appraiser).↩
11. Wieme modified various assumptions used given that U of M would be the only occupant of the building. For example, Wieme lowered the market rental rate and adjusted for a "refit cost" to conform the building to U of M's needs.↩
12. We need not address respondent's last argument that the gift occurred on Dec. 30, 1992, not on Feb. 25, 1993, upon the closing.↩