UNITED STATES TAX COURT

T.C. Memo. 1997-243

UNITED STATES TAX COURT

GERALD D. AND CATHERINE LEIBOWITZ, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3542-94.

Filed May 29, 1997.

Ronald G. Wohl and Robert S. Barnett, for petitioners.

Nicholas G. Kokis and Lewis J. Abrahams, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

BEGHE, Judge:

Respondent determined the following

deficiencies and additions to tax in petitioners' Federal income

taxes:

- 2 Addition

to Tax

Year

Deficiency

Sec. 6659

1985

$5,061

$1,518

1986

6,783

2,035

1987

6,287

1,886

1988

6,118

1,835

The issues for decision are:

(1) The fair market value of

the movie memorabilia (the collection) donated by Gerald

Leibowitz (petitioner) to the American Museum of the Moving Image

(AMMI) for purposes of determining the charitable contribution

deductions to which petitioners were entitled for 1985, the year

of the gift, and for the later years by way of carryovers; and

(2) whether petitioners are liable for additions to tax under

section 66591 for a valuation overstatement.

We find the value of the collection to be less than

petitioners claimed, but more than respondent allowed, which will

result in deficiencies for 1987 and 1988.

We hold that

petitioners are not liable for additions to tax for a valuation

overstatement.

FINDINGS OF FACT

1

Unless otherwise identified, section references are to the

Internal Revenue Code in effect for the years in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.

- 3 Some of the facts have been stipulated and are so found.

The stipulation of facts and attached exhibits are incorporated

herein by this reference.

At the time of filing their petition,

petitioner and Catherine Leibowitz were married and resided in

Fresh Meadows, New York.

Petitioner has a Ph.D. in clinical

psychology from the University of Rochester.

In 1985, he

maintained a private practice and served as chief psychologist at

a handicapped children's residential center.

Petitioner's interest in movie memorabilia began in

childhood, stimulated in part by his father's employment on the

business side of the movie industry.

Over the years, petitioner

had collected a large number of 8- by 10-inch black and white

still photographs.

In the 1970's, petitioner began collecting

print blocks, which are the metal plates used to print newspaper

advertisements.

At some time in the early 1980's, petitioner

acquired the bulk of the collection, including all the posters,

from a family friend, Robert Schwartz, who had worked for United

Artists.

Schwartz had assisted petitioner in collecting the

print blocks.

At no time in 1985 or in prior years was

petitioner a dealer in movie memorabilia.

Prior to donating the

collection to AMMI, petitioner had never sold or otherwise

disposed of any part of the collection or other movie

memorabilia.

- 4 1.

The Collection

a.

Background

Posters and other advertising paraphernalia have been

produced by movie studios since the beginning of the movie

industry.

Over the years, a number of stock types evolved, most

of which are represented in the collection.

Since the 1920's,

the studios have produced a standard size movie poster, known as

a one-sheet, for virtually every film released in movie theaters.

Even today, more widespread releases might have several onesheets.

Up until the mid-1980's, other types of advertising were

also produced for films.

With the advent of newer forms of

advertising media and technology in the early 1970's, both the

quantity and quality of the broad range of printed advertising

materials began to decline.

b.

Role of Physical Condition

The physical condition of an item of movie memorabilia has

always had a significant effect on its market value.

By 1985,

collectors and dealers in movie memorabilia had begun to adhere

to fairly standardized classifications of physical condition that

had generally been borrowed from the field of comic book

collecting.

With some modifications, collectors and dealers

still use these basic classifications.

The most commonly used

grades in 1985 were “Mint”, “Fine”, “Good”, and “Poor”.

Mint condition posters have no tears, pieces missing, tape

marks, or pinholes from being displayed, and their colors have

- 5 not faded.

The attachment of “snipes”, strips of paper printed

with messages such as “Return Engagement” pasted over a portion

of the poster, also detracts from a poster's condition, usually

lowering its classification.

Posters that have never been folded

or rolled may command a premium if they are from an older or

especially collectible title.

“Fine”, “Good”, and “Poor” posters

have increasingly obvious defects that will reduce their value.

Competent restoration of a damaged poster or other item of movie

memorabilia may enhance its value.

c.

Types of Movie Memorabilia

There are items in petitioner’s collection from each of the

following categories.

(1) One-sheet (27 by 41 inches)--generally printed on light

paper stock.

The intrinsic artistic merit of one-sheets varies

substantially.

Some famous titles, such as “Across the Pacific”,

starring Humphrey Bogart, are prized by collectors despite their

poorly executed artwork because of the allure of the film or its

stars.

Another example is “The Miracle Worker”, a well-known

film in the collection whose poster artwork is generally regarded

as inferior.

On the other hand, there are many one-sheets of

lesser known titles that are acknowledged to have artistic merit.

Posters in either category could command considerable premium

prices in 1985.

- 6 In 1985, the minimum retail store price for one-sheets was

$5 to $15.

At mid-1980's conventions,2 one-sheets could be

obtained in varying conditions for as little as $1 to $2.

In

bulk, one-sheets might have sold for as little as 10 cents each.

At 1985 auctions, prices for one-sheets of highly collectible

titles such as “Stagecoach”, a title not in the collection, often

ran as high as $2,000 or more.

One-sheets for “Casablanca” were

so rare and highly sought after as to have been virtually

unobtainable at any price since the late 1960's.

In the pretelevision era, popular films were sometimes rereleased in theaters, often with a different advertising campaign

that included newly designed one-sheets.

However, the one-sheet

for a re-release was worth much less than a first release onesheet for the same film.

For example, in 1985, a 1944 re-release

one-sheet for “Stagecoach” had a retail value of $200 to $250

compared to $2,000 for a one-sheet from the original 1939

release.

(2) Three-sheet (41 by 81 inches)--a larger poster similar

in artistic composition to one-sheets, usually printed in two to

three sections and folded at the time of printing.

Far fewer

three-sheets than one-sheets were produced for a given title.

2

In

Movie memorabilia conventions, described infra p. 11, were

large markets sponsored several times a year in different

locations around the country that functioned on both the retail

and wholesale level, drawing collectors and movie memorabilia

dealers.

- 7 1985, three-sheets were not widely sold and were not generally

sold at conventions.

Three-sheets that were sold at conventions

tended to be nondescript titles in less than mint condition,

selling for as little as $1 to $2.

Catalogs and other price

guides published in 1985 generally valued three-sheets at about

1.57 times the value of a one-sheet for the same title.

(3) Six-sheet (81 by 81 inches)--a larger poster printed in

three to four sections in the same weight paper as one-sheets.

The individual sections were generally folded after printing.

Like three-sheets, they were not as widely available for sale as

one-sheets in 1985.

They were not sold at conventions.

However,

1985 catalogs and price guides established a base price for most

titles at about 1.8 times the price of a one-sheet for the same

title.

(4) Twenty-four-sheet (324 by 81 inches)--a billboard-sized

poster whose individual sections are generally folded.

They were

not widely sold during the mid-1980's, although one for “The

Misfits”, a title in the collection, was offered at auction for

$600 to $800 in October 1985 without being sold.

sheets were not sold at conventions.

Twenty-four-

On this record, no general

price range for twenty-four-sheets can be established for 1985.

(5) Half-sheet (28 by 22 inches)--also known as a “display

sheet”, was printed on heavier stock than one-sheets.

Unlike

larger categories of movie memorabilia, fold marks generally

detract from the value of a half-sheet.

In 1985, prices of half-

- 8 sheets for most titles ranged from a low of about 65 to 70

percent to as high as 80 to 100 percent of the price of a onesheet of the same title.

(6) Insert (14 by 36 inches)--a tall narrow poster printed

on heavier stock than a one-sheet, although some were

occasionally printed on lighter stock.

after the mid-1960's.

They were rarely produced

Trimmed borders, folds, and creases all

detract from the value of an insert.

In 1985, inserts for more

desirable films, such as the “Barefoot Contessa”, a title

represented by a three-sheet and a six-sheet in the collection,

were selling in catalogs for $40.

For most titles, 1985 prices

of inserts ranged from the same price as a half-sheet (about 65

to 70 percent of a one-sheet price) to roughly the same price as

a one-sheet.

(7)

Lobby card (11 by 14 inches)--a small poster printed on

heavy stock featuring a scene from the film.

By the mid-1980's,

studios were beginning to discontinue producing lobby cards.

Prior to that period, studios usually produced lobby cards in

sets of eight cards, although four- and ten-card sets were not

uncommon.

In 1985, the most desirable card in the set,

commanding the highest prices, was the title card, displaying the

title and the top stars in the film.

The remaining lobby cards

could be roughly categorized as “live” scene cards and “dead”

scene cards.

Live scene cards feature a famous scene or a

picture of one or more of the major stars in the film.

In 1985,

- 9 they did not command the premium price of a title card, but could

still be quite valuable depending upon the title and the quality

of the scene shown.

Dead scene cards, which showed background

scenes, commanded the lowest prices.

Lobby card sets from lesser

known films, especially ones made after 1960, were often broken

up by dealers in the 1970's and early 1980's and the more

desirable cards sold separately.

Lobby cards from films made

after the early 1960's generally do not have as much artistic

merit as older cards.

Folds and creases detract from the value of lobby cards.

Many lobby cards were also trimmed by theater owners.

Without

restoration, trimming greatly reduced a lobby card's 1985 value.

Nevertheless, in 1985, a badly trimmed title card from a 1949

Bowery Boys film, “Hold that Baby”, a title not in the

collection, was listed in catalogs at $10.

The most highly

prized live scene cards, such as a card from “Casablanca” that

showed both Humphrey Bogart and Sidney Greenstreet, sold for as

much as $600-$1,000 per card in 1985.

For most titles, however,

prices of lobby card sets ranged from $19 to $25 a set in 1985.

(8) Still photograph (8 by 10 inches)--largely in black and

white, although color stills were issued for later films.

In

1985, overall price ranges were difficult to establish for

stills.

They were easy to reproduce and demand for them was

relatively limited.

1985.

However, some stills were quite valuable in

Original stills from the 1920's and 1930's were highly

- 10 sought after because their authenticity was relatively easy to

ascertain.

Stills from titles released in the 1940's and early

1950's with proven provenance commanded prices of $5 to $25.

However, the record contains insufficient information to

establish a general price range in 1985 for the stills in the

collection.

(9) Foreign poster--either from foreign films or of foreign

releases of American films.

There were both types in the

collection, although most were French or Spanish posters of

American films.

Foreign posters come in three sizes:

Small (16

by 21 inches), medium (23 by 31 inches), and large (47 by 62

inches).

In 1985, foreign posters of American films were generally

less expensive than American first release posters for the same

title, even though the artwork was different, and in many cases,

superior to that of the American posters.

Because they were not

very widely sold in 1985, many contemporary price guides did not

specifically list prices for individual foreign posters.

However, foreign posters were available to at least some extent

in 1985 at auction, by catalog from Cinemonde, a large retail

store in San Francisco, and at retail stores in New York and

other larger cities.

For most titles, prices in 1985 for all

three sizes of foreign poster were about 70 to 80 percent of the

price of an American release one-sheet.

- 11 (10) Pressbook--materials that studios sent to the media and

theaters as part of the promotional campaign for a film.

In

1985, pressbooks were beginning to become desirable as

collectible movie memorabilia.

Post-World War II pressbooks were

common and relatively inexpensive in 1985.

Pressbooks for older

films are more elaborate than those produced after about 1960.

In 1985, pressbooks were listed separately in some of the price

guides, ranging in price from 5 to 20 percent of the value of a

one-sheet to $9 to $12 apiece.

Pressbooks could be found for $5

apiece in many retail stores.

(11) Window Card (14 by 22 inches)--printed on hard stock

with no folds.

Four inches of blank space was left, usually at

the top of the card, for the theater to imprint its name.

Very

often, the imprinting was done crudely, and sometimes not at all.

Over the years, the blank space has been trimmed from many

specimens.

Window cards were widely sold in 1985 and listed

separately in catalogs and price guides.

They ranged in price

from about 40 to 100 percent of the price of a one-sheet,

depending upon condition.

d.

Movie Memorabilia Markets in 1985

Movie posters and other movie memorabilia began to be widely

collected in the 1970's, partly spurred by a renewed interest in

films starring Humphrey Bogart.

The primary sources for movie

memorabilia in the early days of the hobby were old theaters,

movie poster exchanges, and the National Screen Service, a film

- 12 industry cooperative formed in 1942 to distribute film

advertising.

Much of the memorabilia then extant was purchased

in bulk by collectors, many of whom later became dealers.

By the

late 1970's, the markets that existed in 1985 were beginning to

form.

As demand for movie memorabilia increased in the 1970's

and early 1980's, prices for all categories rose dramatically.

Prices tended to appreciate much more quickly for films of the

1930's to 1950's because much of the demand was driven by

nostalgia for those “golden years” of Hollywood.

From the

perspective of the collector and the dealer:

There are no “good” or “bad” movie posters. Some,

of course, are aesthetically pleasing. Others are

wonderful because they capture the spirit of the film

they advertise. Many are desirable to collectors

simply because they are tangible representations of a

truly great or favorite movie. A small number are

examples of superb design and/or lithography. All,

however, are created “equal” in the sense that they

were and are produced for the single purpose of

enticing a prospective movie-goer to choose a

particular film to see at a given moment. They are

advertising. [Guernsey's, Comprehensive Collections of

Film Posters & Lobby Cards, Illustration, Cartoons &

Animation at Auction 8 (1987).]

The development of the movie memorabilia market through 1985 bore

strong similarities to the earlier development of comic book

collecting.

Not only were some early collectors of movie

memorabilia also comic book collectors, but the different movie

memorabilia markets also evolved in much the same way as comic

book markets--a mixture of retail stores, catalog sales,

auctions, and conventions.

Stamp and coin collecting are other

- 13 markets that developed prior to movie memorabilia and which share

the same basic structures.

By 1985, the movie memorabilia markets had matured.

Movie

memorabilia were available in retail stores and through mail

order catalogs.

Conventions were held periodically in different

parts of the country.

Particularly well-known and highly sought-

after posters were sold at auctions sponsored by prominent

auction houses.

Hitherto undiscovered treasure troves of movie

memorabilia were being uncovered in flea markets, old theaters,

and the like.

Price guides had been available to collectors for

several years.

The price guides generally focused on the retail

market rather than wholesale market.3

By 1985, just like similar

guides for the comic book, coin, and stamp markets, movie

memorabilia price guides had become the single most important

source of market information for both collectors and dealers.

These guides set the de facto standards for retail prices, with

wholesale prices tending to be 30 to 70 percent less.

Collectors

and dealers also traded memorabilia, using “trade values” pegged

to prevailing retail values.

In 1985, retail stores were generally the highest priced

source, although auction prices for particularly desirable

material, such as posters for “Casablanca”, could be much higher.

3

See infra note 8 for a listing of 1985 price guides

submitted into evidence.

- 14 Buyers who were not especially knowledgeable generally bought at

retail stores.

Conventions catered mainly to dealers who bought on the

wholesale level and to serious or knowledgeable collectors who

sought the best bargains.

During this period, the same

individual would very often participate in the convention market

as both dealer and collector.

Dealers and collectors would pore

through stacks of obscure titles of poorly regarded films (known

as “schlock”), looking for the rare bargain that could then be

resold in a retail store or through a catalog.

Movie memorabilia

conventions were mixed wholesale-retail markets, although tending

to be more wholesale than retail.

Some categories of movie

memorabilia, such as twenty-four-sheets, six-sheets, and foreign

posters were rarely sold at conventions in the mid-1980's.

Three-sheets were sold only in small quantities at conventions in

1985 and generally commanded relatively low prices--$1 or $2 per

item.

e.

The Collection

The collection donated to AMMI in December 1985 consisted of

7,378 items, including 546 duplicates, of movie memorabilia from

659 different films.

The 546 duplicate items (nonaccessioned

inventory) were not assigned accession numbers by the museum.

The exact number of items in each category is shown in Table 1 in

the appendix, based upon an inventory conducted by AMMI in

December 1994.

Most of the titles in the collection were of

- 15 films from the 1950's through the 1970's.

The overall physical

condition of the collection was mint, with many items having

never been handled.

The collection does not include any highly sought-after

items like one-sheets, half-sheets, or title cards for classic

collectible titles such as “Casablanca” or “Frankenstein”.

The

well-known film titles in the collection are often represented by

somewhat less desirable types of memorabilia.

For example, the

collection contains a twenty-four-sheet and a pressbook for

“Goldfinger”, the most highly regarded James Bond film.

The only

item in the collection from “The Misfits”, with Marilyn Monroe

and Clark Gable, is a twenty-four-sheet.

“Exodus” is represented

in the collection by a 10-card lobby card set, a twenty-foursheet, a six-sheet, a three-sheet, and a pressbook.

The

collection also includes a six-sheet, a three-sheet, and a

pressbook for John Ford’s “The Horse Soldiers”, starring John

Wayne, and a twenty-four-sheet, a six-sheet, and two foreign

posters from “Vera Cruz”, which starred Burt Lancaster and Gary

Cooper, a three-sheet and a pressbook from “Run Silent, Run

Deep”, starring Clark Gable and Burt Lancaster, a pressbook from

Howard Hawks’ “Red River”, starring John Wayne, 16 black and

white stills, a three-sheet and a six-sheet of “Baby Face

Nelson”, a six-sheet and a three-sheet from “Midnight Cowboy”,

starring Jon Voight and Dustin Hoffman, and a six-sheet, four

- 16 foreign posters, and a lobby card set from “The Battle of

Britain”.

The collection includes one-sheets, half-sheets, and lobby

cards of other better known films, including two one-sheets and a

set of lobby cards of Fellini's "Satyricon", three one-sheets, a

three-sheet, a lobby card set, and a pressbook from “The Big

Country”, a 1950's western starring Gregory Peck, Jean Simmons,

and Burl Ives, as well as one-sheets of “A Streetcar Named

Desire” starring Vivian Leigh and Marlon Brando, of “The Barefoot

Contessa”, starring Humphrey Bogart and Ava Gardner, and of “On

Her Majesty's Secret Service”, “Moulin Rouge”, “Never on Sunday”,

and “Woman of Straw”, the last a relatively obscure title with

the well-known stars Gina Lollobrigida and Sean Connery.

The

collection also includes one-sheets of “The Defiant Ones” with

Sidney Poitier and Tony Curtis, and of “The Manchurian

Candidate”, with a cast that included Frank Sinatra, Janet Leigh,

and Laurence Harvey.

The collection also contained memorabilia from a number of

films that have achieved cult status over the years.

There is a

one-sheet and a twenty-four-sheet from “Bwana Devil”, one of the

first 3D films, a one-sheet from “The Monster that Challenged the

World”, a one-sheet, a lobby card set, and a pressbook from “It!

The Terror from Beyond Space”, and a one-sheet of “Curse of the

Faceless Man”.

- 17 One-sheets of somewhat less famous and more recent films

from the 1970's are also in the collection, including “Chato's

Land”, starring Charles Bronson, and “Comes a Horseman”, which

starred James Caan and Jane Fonda.

Many of the other one-sheets

and other items in the collection are from relatively unknown

films, such as “Macumba Love”, that did not have any particularly

outstanding attributes such as famous stars, superb artwork, or a

cult following.

Most of these films were not listed in the price

guides available in 1985, although many of them have subsequently

appeared in price guides published in the 1990's.

The foreign posters in the collection included a number of

famous titles.

There are three large foreign posters and two

medium foreign posters each from French releases of the Clint

Eastwood “spaghetti” westerns “For a Few Dollars More (Et Pour

Quelques Dollars de Plus)” and “The Good, The Bad, and The Ugly

(Le Bon, la Brute, le Truand)”.

The collection also has three

large and two small foreign posters of “La Cage aux Folles”.

Other foreign posters of American films in the collection include

two large posters and one small poster of “The Curse of the Pink

Panther”, two medium posters of “Diamonds are Forever”, one

medium foreign poster from “The Magnificent Seven”, and two

medium posters of Woody Allen’s “Sleeper (Woody et les Robots)”.

A few items in the more popular categories of memorabilia in

the collection are “schlock”.

Some examples of one-sheet titles

in this category include “Latigo”, a 1971 release, “The

- 18 Degenerates”, a 1972 release, “Drum”, a 1976 release, and “The

Man Who Loved Love”, a 1977 release.

None of these films are

listed in two of the major price guides from 1994.

The collection also contains 1,727 8- by 10-inch black and

white and color still photographs.

The record does not reveal

whether any of those stills had any particular merit or were of

sought-after titles or film stars.

There were no duplicate

stills listed in the AMMI inventory.

The 2,858 lobby cards constituted 39 percent of the items in

the collection.

sets.

With very few exceptions, these were complete

The inventory listed the cards in quantities of 4, 8, and

10, which were the numbers of cards commonly contained in sets of

lobby cards issued by the studios.

Only 96 cards, or 12 sets of

lobby cards, were listed as duplicates in the AMMI inventory.

The 836 foreign posters made up 11 percent of the items in

the collection.

The foreign posters also include 310 of the 546

duplicates in the collection.

Only 1,043 larger items issued by

American studios, such as one-sheets, three-sheets, six-sheets,

and twenty-four-sheets, about 14 percent of the total, are

included in the collection.

There are also relatively few half-

sheets (114), window cards (39), and inserts (134) in the

collection.

There are 331 pressbooks in the collection, of which

27 are duplicates.

- 19 2.

The Donation of the Collection

By 1985, petitioner was running out of room to store the

collection, and he had begun to consider selling it.

He read an

article about a new museum, AMMI, that would be opening its doors

to the public in Astoria, New York, in the then-near future.

He

telephoned Eleanor Mish, the Registrar of AMMI, to inquire

whether the museum would be interested in receiving the

collection as a gift.

Ms. Mish told petitioner that AMMI was

interested in receiving such a gift.

On September 24, petitioner

wrote to Ms. Mish confirming his offer to donate the collection

to the museum.

At some time prior to December 31, 1985,

petitioner donated the collection, consisting of 7,378 pieces, to

AMMI.

The December 31, 1985, deed of gift, for which petitioner

supplied an initial inventory, misstates that inventory as 4,347

items.

After making the donation, petitioner retained his print

block collection and a large number of stills.

AMMI performed subsequent inventories of the collection and

assigned accession numbers to all items except duplicates.

The

duplicate items were physically separated from the rest of the

collection and held for subsequent sale or trade.

None of the

duplicates had been disposed of at the time of trial, in part

because of the pendency of this proceeding.

In 1985, AMMI was in the process of preparing a venue in

which to publicly display the collection it was then developing.

The museum did not open its doors to the general public until

- 20 1988.

Because of space constraints, AMMI did not put any part of

the collection on public exhibit until 1990, when the one-sheet

of "Bwana Devil" was displayed.

AMMI also used some slides of

items in the collection for promotional advertising and listed

several of the posters in publicity photographs taken for the

1988 opening.

A number of items were exhibited at museums other than AMMI

during the early 1990's.

Five lobby cards and a pressbook for

“Exodus” were exhibited at The Museums at Stony Brook, Stony

Brook, New York, from December 1990 to March 1991 as part of an

exhibition called “Jews in American Cinema”.

Three lobby cards

from “The Joe Louis Story” were part of an exhibition entitled

“From Harlem to Hollywood: American Race Movies 1912-1948”, which

was shown at AMMI on two occasions in 1990-91 and 1992-93.

That

exhibition was also shown at the Museum of Fine Arts, Houston,

Texas, from March to July 1991.

A number of items were also shown at AMMI from May to

September 1994 in an exhibition called “Muky's New York:

Photographer to the Postwar Film Renaissance”.

At the time of

trial, AMMI had scheduled an exhibit of the twenty-four-sheet

from “Bwana Devil” after spending approximately $1,000 to restore

and preserve it for exhibition.

The twenty-four-sheet from

“Exodus” was also scheduled for display at the same time as part

of the same exhibition.

- 21 3.

Petitioners' Valuation and Charitable Contribution Deductions

Petitioners used the services of an income tax return

preparer to prepare their 1985 income tax return.

Petitioners

requested and obtained extensions to file until October 15, 1986.

The return was filed on October 13, 1986.

At the behest of their

income tax return preparer, petitioners obtained two appraisals

of the collection, one from Sigmund Rothschild and another from

F. Peter Rose.

The latter appraisal, for $188,085, was used as

the basis for a charitable contribution reported in petitioners'

1985 joint tax return.

A copy of the report of that appraisal

was attached to the return.

The amount of the charitable

contribution shown on the 1985 return was large enough to create

a claimed carryover into succeeding tax years through 1990.

Petitioners claimed that carryover in their 1986 through

1988 joint income tax returns.4

The parties executed a series of

4

Petitioners' charitable contribution deductions shown on

their returns for the years at issue were as follows:

Taxable

Year

Beginning

Balance

Charitable

Deduction Claimed

Amount of

Carryover

1985

$188,085

$20,885

$167,200

1986

167,200

20,808

146,392

1987

146,392

21,763

124,629

1988

124,629

21,859

102,770

Except for an additional $162 not at issue, the charitable

contribution deduction claimed for each year in issue is also the

adjustment to income that formed the basis for the underpayment

determined by respondent in the statutory notice of deficiency

(continued...)

- 22 valid consents to extend the period of limitations until

December 31, 1993, for tax years 1985 through 1988.

On

December 17, 1993, respondent mailed a statutory notice of

deficiency to petitioners for the tax years in question based

upon a determination that the fair market value of the collection

was $1,956 in December 1985.

Petitioners filed a timely petition

with the Tax Court.

ULTIMATE FINDINGS OF FACT

1.

In December 1985, the relevant market for the sale of

movie memorabilia was the retail store.

2.

In 1985, the fair market value of the entire collection

was $50,412.

The fair market value of the collection and of

each category of memorabilia in the collection is:5

4

(...continued)

for that year.

Petitioners claimed an additional $60,000 to $65,000 in

deductions attributable to the carryover in tax years 1989 and

1990. Those years were barred from assessment by expiration of

the period of limitations.

5

These values are drawn from Tables 1 and 2 in the

appendix. Table 1 summarizes the values for each category of

movie memorabilia in the collection from the parties’ experts and

the Court’s independent valuation. Table 2 contains comparative

values drawn from the parties’ experts and the Court’s valuation

of 106 one-sheets for which the record contained retail sales

prices independent of either party’s expert’s valuation. This

reference sample formed the basis for the Court’s valuation. See

infra note 8 and notes 15-17 and accompanying text for further

explanation of the Court’s methodology.

- 23 Category

Dimensions

(inches)

Quantity

Category

Total

1-sheet

27 x 41

513

$9,746

3-sheet

41 x 81

306

9,128

6-sheet

81 x 81

176

6,019

24-sheet

billboard

48

83

Half-sheet

22 x 28

114

1,733

Insert

14 x 36

134

2,037

Lobby card

11 x 14

2,858

6,788

Lobby card

8 x 10

296

703

B & W still

8 x 10

1,709

189

Color still

8 x 10

18

5

Lg. foreign

47 x 62

449

6,398

Med. foreign

23 x 31

267

3,805

Sm. foreign

16 x 21

120

1,710

Pressbook

various

331

1,572

Window card

14 x 22

39

496

7,378

50,412

Total

OPINION

1.

Introduction

The primary issue for decision is the 1985 fair market value

of the collection of movie memorabilia that petitioner donated to

AMMI.

Because we find that petitioners’ valuation of their 1985

charitable donation to AMMI is more than 150 percent of the

Court's valuation, we must also decide whether petitioners are

liable for an addition to tax under section 6659 for any year at

issue in which they claimed a charitable contribution deduction

- 24 based on the carryover they claimed from 1985 under section

170(d)(1)(A).

This is another case in which this Court has been called

upon to value transferred property on the basis of appraisals by

well-qualified experts who arrive at fundamentally incompatible

valuations.

The valuations offered by the parties' experts at

trial vary by a factor of 26 ($149,451 for petitioners versus

$5,733.49 for respondent).6

The experts' appraisals hardly

narrowed the gap between petitioner’s initial valuation of the

donation and respondent's initial determination of the value in

the notice of deficiency:

the latter.

the former was 90 times larger than

The parties have failed to settle this matter

through negotiation, thus calling upon the Court to use its

judgment in an area in which it has no preexisting expertise,

with opposing experts’ valuations that provide little more than

remote reference points as guidance.

Section 170(a) provides a deduction for any charitable

contribution made within the taxable year.

Section 1.170A-

1(c)(1), Income Tax Regs., provides that if “a charitable

contribution is made in property other than money, the amount of

the contribution is the fair market value of the property at the

time of the contribution”.

6

Fair market value is the price at

Examples of the extreme differences between the experts'

valuations of individual items in the collection abound. See

Table 2.

- 25 which the property would change hands between a willing seller

and a willing buyer who both have a reasonable knowledge of the

facts and are not under any compulsion to sell or buy.

United

States v. Cartwright, 411 U.S. 546, 550-551 (1973); sec. 1.170A1(c)(2), Income Tax Regs.

Respondent's determination of the fair

market value is presumed to be correct, and petitioners have the

burden of proving otherwise.

Rule 142(a).

However, fair market

value is a question of fact, Lio v. Commissioner, 85 T.C. 56, 66,

68 (1985), affd. sub nom. Orth v. Commissioner, 813 F.2d 837 (7th

Cir. 1987), that this Court must answer as a matter of judgment,

Hamm v. Commissioner, 325 F.2d 934, 940 (8th Cir. 1963), affg.

T.C. Memo. 1961-347, on the basis of all the evidence in the

record, Helvering v. Safe Deposit & Trust Co., 316 U.S. 56, 66-67

(1942); Silverman v. Commissioner, 538 F.2d 927, 933 (2d Cir.

1976), affg. T.C. Memo. 1974-285.

Although the regulations under section 170 provide no

guidance on whether to value property in bulk or on an individual

basis, or on the market to be used to value property and how to

select that market, the guidance found in the Estate Tax

Regulations is applicable to charitable contributions for income

tax purposes.

Champion v. Commissioner, 303 F.2d 887, 892-893

(5th Cir. 1962) (“There is no distinction, for most purposes

* * * in the meaning of fair market value as used in an estate

tax case and one involving income tax.”), revg. and remanding on

other grounds T.C. Memo. 1960-51; Anselmo v. Commissioner, 80

- 26 T.C. 872, 881 (1983), affd. 757 F.2d 1208 (11th Cir. 1985).

The

fair market value of an item of property shall not

be determined by the sale price of the item in a market

other than that in which such item is most commonly

sold to the public, taking into account the location of

the item wherever appropriate. Thus, in the case of an

item of property * * * which is generally obtained by

the public in the retail market, the fair market value

of such an item of property is the price at which the

item or a comparable item would be sold at retail.

* * * The value is generally to be determined by

ascertaining as a basis the fair market value as of the

applicable valuation date of each unit of property.

* * * [Sec. 20.2031-1(b), Estate Tax Regs.]

2.

The Experts

Each party submitted an expert report, supported by

extensive testimony, that selected a different market in which to

value the collection.

The experts’ contradictory assumptions and

their differing conclusions about which market is relevant and

the state of those different markets in 1985 partly explain the

extent of their disagreement.

Expert opinions can aid the Court in understanding an area

of specialized training, knowledge, or judgment, Perdue v.

Commissioner, T.C. Memo. 1991-478, even when the opinions are

poles apart as they are in this case.

While we may accept the

opinion of an expert in its entirety, Buffalo Tool & Die

Manufacturing Co. v. Commissioner, 74 T.C. 441, 452 (1980), we

are not bound by the expert opinions proffered on behalf of

either party, Silverman v. Commissioner, 538 F.2d at 933, and may

selectively use any portion of such reports and testimony, IT&S

- 27 of Iowa, Inc. v. Commissioner, 97 T.C. 496, 508 (1991); Parker v.

Commissioner, 86 T.C. 547, 562 (1986).

Consequently, we will

consider the opinions of the two experts in their written reports

and testimony insofar as they help us determine the relevant

market and the appropriate methodology to be used in answering

ultimate question, the the fair market value of the collection.

IT&S of Iowa, Inc. v. Commissioner, supra; Chiu v. Commissioner,

84 T.C. 722, 734-735 (1985); see also Estate of Gray v.

Commissioner, T.C. Memo. 1993-334.

a.

Petitioner's Experts

Petitioner initially obtained two appraisals of the

collection in order to ascertain the amount of their charitable

deduction.

F. Peter Rose performed the appraisal of the

collection, which he valued at $188,085, that petitioners

ultimately used in preparing their 1985 income tax return.

Another appraisal was performed by Sigmund Rothschild, who valued

the collection at $186,575.

Messrs. Rose and Rothschild

performed approximately 1,500 appraisals of “reproduction

masters” of works of art in connection with tax shelters marketed

by Jackie Fine Arts.

Rose v. Commissioner, 88 T.C. 386, 398-399

(1987), affd. 868 F.2d 851 (6th Cir. 1989).

Both Rose and

Rothschild, by reason of the inflated values in those appraisals,

- 28 were also named as defendants in numerous lawsuits by investors

in Jackie Fine Arts tax shelters.7

We reject both the Rose and the Rothschild appraisals, which

exceed by more than 20 percent the values asserted by

petitioner’s expert at trial.

The record fails to support either

of these appraisals.

Nothing in the record supports an inference that, at the

time petitioner engaged the two appraisers, he could have

reasonably known of their role in marketing the Jackie Fine Arts

tax shelter.

Petitioner did not obtain the appraisals from

Messrs. Rose and Rothschild with intent to inflate the value of

his charitable contribution for the gift of the collection to

AMMI.

Petitioner retained Morris Everett (Everett) to appraise the

collection and to prepare an expert report for trial.

At the

time of trial, Everett had been a collector of movie memorabilia

for over 30 years and a dealer since 1984.

He opened his first

retail store in Cleveland, Ohio, in 1987, and later opened other

stores in Hollywood and New York City.

Everett based his valuation of the collection on the

prevailing 1985 prices in the retail store and catalog sales

7

See, e.g., Faircloth v. Finesod, 938 F.2d 513 (4th Cir.

1991); Mechigian v. Art Capital Corp., 612 F. Supp. 1421

(S.D.N.Y. 1985); Ross v. Jackie Fine Arts, Inc., No. C/A 2:852425-1 (D.S.C. 1991); Daggett v. Jackie Fine Arts, Inc., 733 P.2d

1142 (Ariz. Ct. App. 1986).

- 29 market.

In preparation for assigning values to the collection,

Everett consulted dealers whom he knew or had dealings with who

had owned or operated retail stores in 1985.

He also consulted

various trade publications.

Everett included all 7,378 items in the inventory in his

valuation, including the 546 duplicates.

To value each item

within the 15 categories of movie memorabilia in the collection,

Everett assigned an “average value” to the items in each

category.

He assigned one or more premium units to more

desirable titles, valued as a multiple of the “average value”

assigned to items in that category.

Thus, each three-sheet was

assigned an “average value” of $30.

If Everett assigned three

premium units to a title, the three-sheet would be valued at $90,

or three times the “average value”.8

8

Table 1 contains a summary of the values assigned to each

category of memorabilia by Everett.

Table 2 contains the reference sample, which compares values

obtained from price guides entered in the record as joint

exhibits with the corresponding values assigned by Everett and

Warren for 106 one-sheets in the collection. See infra notes 1517 and accompanying text. The Court used price guides and

catalogs from 1985 that had been received into evidence. The

record shows that retail store, mail order catalog, and price

guide prices were roughly equivalent.

The price guides and catalogs used were Luton's Original

Theater Posters No. 6 (1985); Luton's Original Theater Posters

No. 8 (1986) (price scale prices of common items identical to

1985 edition) (hereinafter collectively Luton's); Cinemonde

Thriller 1985; Cinemonde Action 1985; Poster City Catalog Three,

December 1984 (hereinafter Poster City); Dietz, Price Guide and

Introduction to Movie Posters and Movie Memorabilia (2d ed. 1985)

(continued...)

- 30 As an example, Everett did not assign any premium units to

items in the collection from “Annie Hall”, a Woody Allen film

released in 1977.

Everett valued the one-sheet at $20, the

“average value” for all one-sheets, and the insert at $15, the

“average value” for that category.

Everett valued the lobby

cards at $5 each, the “average value” for all 11- by 14-inch

lobby cards, regardless of whether they contained “live” or

“dead” scenes.

He assigned five premium units to Fellini's

“Satyricon”, resulting in values for the two one-sheets in the

inventory of $100 each, $40 apiece for the lobby cards, and $75

for the insert.

Everett's “average values” were considerably higher than the

minimum prices charged for those categories of items in retail

stores.

For instance, Everett considered $15 to have been the

minimum price charged in 1985 for any one-sheet at a retail store

in New York.

$10.

Other sources put the minimum price between $5 and

The “average value” Everett assigned to one-sheets was $20.

He based his relatively high “average values” on the desirability

of the collection as a whole, especially its uniformly mint

condition.9

8

(...continued)

(hereinafter Dietz). Warren's Movie Poster Guide (1986) was not

used because it was already reflected in the prices he had

assigned to some of the items.

9

On cross-examination, Everett could not give a technical

answer to the meaning of the term “average”. Everett may have

(continued...)

- 31 Everett also considered the desirability of the 659 titles

in the collection, which he characterized as “middle of the road”

rather than “high end”.

He reported that prices for titles such

as those in the collection appreciated rapidly during the 1970's

and early 1980's and, in most cases, have not appreciated greatly

since then.10

In making his valuation, Everett also took into

account the overall mint condition of the United Artists movie

memorabilia in the collection.

Everett took into account the

development of the market throughout the mid-1980's up through

1987 because he believed that it was developing slowly throughout

that period.

He took into account in his report events that

occurred both prior to and shortly after the donation when he

valued the collection.11

9

(...continued)

meant to characterize the “average value” as a base price for

items in the collection in a particular category.

10

Warren, respondent's expert, asserted that prices for

movie memorabilia rapidly went up in all categories during the

period 1986 to 1995, sometimes as much as 50 times or more. A

comparison of prices in the 1985 price guides, see supra note 8,

to the prices listed in the 1994 price guides that were also in

evidence shows that the 106 items in the reference sample

appreciated somewhere between 0 and 100 percent between 1985 and

1994.

11

Normally, post-donation market events that are not

foreseeable must be disregarded. However, prospective events may

be referenced for the limited purpose of establishing what the

willing buyer’s and seller's expectations were on the valuation

date and whether those expectations were “reasonable and

intelligent”. Estate of Gilford v. Commissioner, 88 T.C. 38, 52

(1987); Estate of Jephson v. Commissioner, 81 T.C. 999 (1983).

(continued...)

- 32 b. Respondent's Experts

Respondent determined in the notice of deficiency that the

value of the collection at the time of the gift to AMMI was

$1,956.

The report upon which that determination of value was

based was not made part of the record, and the record contains no

allocation of that amount among the various categories of movie

memorabilia in the collection.

Respondent retained Jon R. Warren

(Warren) to determine the December 1985 fair market value of the

collection and prepare an expert report for trial.

testified at trial as respondent's expert.

Warren also

He is the author of

“Warren's Movie Poster Price Guide”, which was initially

published in 1986.

and 1994.

Subsequent editions were published in 1993

Warren also edits magazines devoted to movie

memorabilia, is a member of the International Appraiser's

Society, and is senior price editor for a major comic book

pricing guide.

Warren began collecting memorabilia in 1976 and

began collecting movie memorabilia in 1980.

During the mid-

1980's, Warren's movie memorabilia expertise was concentrated in

pre-1960 films.

after 1985.

Warren became a dealer in movie memorabilia

With subsequent editions of his book and other

business dealings, Warren has become a major dealer in movie

11

(...continued)

We attach limited weight to post-1985 market events in this

case because we find that the “reasonable and intelligent”

expectations of a willing buyer and seller would be based

primarily on market conditions existing in 1985 and the years

prior thereto, and not on any prospective events.

- 33 memorabilia.

At the time of trial, Warren maintained a database

of prices of over 100,000 items of movie memorabilia.

Warren assumed that the relevant market was the movie

memorabilia convention.

He based his assumption on the buyer’s

being a knowledgeable collector who performed, or should have

performed, an appropriate amount of research prior to entering

the convention market, which is a mixed wholesale/retail market.

Warren asserted that the single key element in pricing movie

memorabilia is demand by collectors for a given title.

The interplay of these two assumptions was critical to how

Warren priced several categories of memorabilia in the

collection.

He heavily discounted the value of foreign posters

because he maintained that there was little or no demand for them

in the mid-1980's.

In Warren's view, collectors viewed foreign

posters of American films as inauthentic novelties, and that only

when domestic posters, especially one-sheets, began to rise

dramatically in price after 1985 did collectors begin to show

interest in foreign posters of American films.

According to

Warren, twenty-four-sheets were considered virtually worthless in

the 1985 movie memorabilia markets because of their size.

The

only twenty-four-sheets then in demand were classic titles such

as “Gone With the Wind”.

Warren contends that three-sheets and

six-sheets were likewise virtually worthless in 1985, although

they subsequently came to be worth as much as one-sheets, if not

more.

- 34 Warren considered the collection as a whole to have little

intrinsic value because it consisted of “minor or unknown films

released by United Artists”.

He evaluated the collection as

little more than a hoard, virtually unsalable within a short

period of time, even at distress sale prices in the convention

market.

Warren also discounted the overall value of the

collection because it consisted mostly of stills, pressbooks, and

lobby cards, which he considered to be of the lowest value to a

collector.

Based upon these foregoing considerations, Warren

assigned values as low as 25 cents to individual items.

base value for a one-sheet was $1.

Warren’s

His highest single assigned

value for a one-sheet was $75 for “Thunder Road”.

Warren

appraised the collection at the time of its donation to AMMI in

1985 at $5,733.49.

3.

The Relevant Market

Selection of the proper market for valuation purposes is a

question of fact.

Anselmo v. Commissioner, 757 F.2d at 1213.

In

determining the appropriate market to use in valuing most types

of property, a sale “to the public” normally refers to a sale to

the retail customer who is the ultimate consumer.

Lio v.

Commissioner, 85 T.C. at 70; Anselmo v. Commissioner, 80 T.C. at

882.

A sale to an ultimate consumer is any sale to those persons

who do not hold the item for subsequent resale.

Goldman v.

Commissioner, 388 F.2d 476, 478 (6th Cir. 1967), affg. 46 T.C.

136 (1966).

However, when used in this context, the term

- 35 “retail” does not mean that the most expensive source is the only

source for determining fair market value.

Fair market value is

determined in the market most commonly used by the ultimate

consumer, which may or may not be the most expensive, since

ultimate consumers may simultaneously participate in multiple

markets with different price structures.

Lio v. Commissioner,

supra at 70.

There are several factors to consider in choosing the

relevant market.

sellers.

First is the identity of the buyers and

They must be purely hypothetical, Estate of Andrews v.

Commissioner, 79 T.C. 938, 954 (1982), reasonably knowledgeable,

and not under any compulsion to buy or sell, sec. 20.2031-1(b),

Estate Tax Regs.

Warren assumed that conventions were the

appropriate market partly because a discriminating collector

would not necessarily pay the higher prices charged by retail

stores.

See, e.g., Chou v. Commissioner, T.C. Memo. 1990-90,

affd. without published opinion 937 F.2d 611 (9th Cir. 1991).

We disagree with Warren’s assumption on this issue.

The

regulations and case law require only that the hypothetical

willing buyer and seller have “reasonable” knowledge.

20.2031-1(b), Estate Tax Regs.

Sec.

That requirement may be satisfied

by an organized market because it has assimilated the available

information to arrive at a market price.

Estate of Gilford v.

Commissioner, 88 T.C. 38, 55 (1987) (referring to organized,

public markets for stock).

The record shows that both the retail

- 36 store and convention markets were organized public markets in

1985.

Dealers and collectors who bought and sold at movie

memorabilia conventions were also not necessarily ultimate

consumers.

Lio v. Commissioner, 85 T.C. at 70; Anselmo v.

Commissioner, supra at 882.

Many collectors, who bought and sold

as ultimate consumers on their own account, were also dealers who

bought and sold inventory for their businesses on the wholesale

level.

It is unclear from the record how many buyers at

conventions were “ultimate consumers” and how many were dealers.

The items to be valued must also be available for sale in

the relevant market.

The record shows that only a limited number

of types of movie memorabilia were sold in conventions, making

that market comparatively unsuitable for selling much of the

collection in this case.

Warren testified that size prevented

the two physically largest categories of movie memorabilia at

issue in this case, six-sheets and twenty-four-sheets, from being

sold at conventions in 1985.

very limited basis.

Three-sheets were sold only on a

Foreign posters, a major part of the

collection, were also rarely sold at conventions.

Memorabilia

sold at conventions also tended to be “picked over” and usually

were not in mint condition.

One of the most noteworthy

attributes of the collection was the completely unused, mint

condition of most of the items.

- 37 Sellers who sold large quantities in bulk at conventions

also tended to be selling at distress prices, even below the

values in Warren's report.

A sale at distress prices indicates a

seller under compulsion or a bulk sale.

The regulation does not

permit either circumstance to dictate valuation.

Sec. 20.2031-

1(b), Estate Tax Regs.

In 1985, stores specializing in movie memorabilia were

located in such major metropolitan areas as New York, Los

Angeles, and San Francisco.

These stores also competed in

nationwide markets through catalog sales along with dealers who

specialized in catalog sales.

Despite the lack of specific

comparative sales data in the record concerning the different

markets, we conclude that it is more likely than not, based upon

the testimony of both experts, that retail stores were the most

common form of sale to “ultimate consumers” of movie memorabilia

in 1985.

The mint condition of the collection particularly suited it

to sale on consignment in the retail store setting or in the

catalog sales market.

The absence of “high end” titles would

have precluded sale of most of the collection on an item-by-item

basis in the auction market.

These factors support our ultimate

finding that, in December 1985, retail stores were the relevant

market for the Leibowitz collection.

We therefore reject

Warren's overall valuation of the collection.

- 38 Everett chose the correct market in which to value the

collection.

However, for other reasons discussed below, we also

reject his valuation.

Warren conceded in testimony that

Everett's valuation was accurate for the New York retail store

market in 1985 because retail store prices were markedly higher

than those found at conventions.

However, our analysis of the

record indicates that Everett’s valuation is too high.

There are two major problems with Everett's valuation.

First, Everett’s use of flawed methodology in determining base

prices inflated the entire valuation.

In determining a base

price for each category of item, Everett used an “average price”

for that category.

As respondent correctly points out on brief,

this meant that Everett assumed that each item in the collection

was worth at least the average value in the marketplace of all

such items for sale.

Even when taking into account the mint

condition of the collection, this approach improperly inflates

the valuation.

As our analysis infra shows, Everett's assigned

values for 106 one-sheet posters were 1.76 times greater than

prices shown in catalogs and price guides in evidence for those

same items.12

12

Everett should have used a base price for items in

See also Table 2, which is a comparison of Everett’s and

Warren’s valuations of 106 one-sheets for which the record also

contained prices from independent pricing guides, and supra note

8, and infra notes 15-17 and accompanying text, which explain the

methodology used in Table 2. Everett’s valuation was $4,760,

1.76 times greater than the total prices of $2,697 for the same

one-sheets found in other pricing guides.

- 39 each category equal to the nominal prices charged in the relevant

market in 1985 and then applied premium units to individual items

based upon condition as well as desirability of the title.

Second, Everett failed to take into account the presence of

dead scene cards in the lobby card sets.

“Live cards” were worth

considerably more than “dead cards”, even when included in

complete sets of lobby cards.

Even though Everett adverted in

his testimony to the distinction between live and dead cards, he

did not systematically account for it in his valuation.

There is

also nothing in the record to support Everett's assertions of

value in two other categories, twenty-four-sheets and 8- by 10inch stills.13

For these reasons, we reject Everett's valuation, even

though he chose the correct market and his overall methodology of

assigning premium values to more desirable titles relative to all

the items in a category would have been a reasonable approach if

he had used a valid base price.

3.

Court's Valuation of the Collection

In Buffalo Tool & Die Manufacturing Co. v. Commissioner, 74

T.C. at 452, we observed that

each of the parties should keep in mind that, in the

final analysis, the Court may find the evidence of

valuation by one of the parties sufficiently more

convincing than that of the other party, so that the

final result will produce a significant financial

13

As discussed infra note 20, the twenty-four-sheets may

well have had some value in 1985.

- 40 defeat for one or the other, rather than a middle-ofthe-road compromise which we suspect each of the

parties expects the Court to reach. * * *

The record in this case would not allow the Court to accept one

or the other of the parties' valuations outright because each was

so grossly contrary to the evidence.

Buffalo Tool & Die

Manufacturing Co. v. Commissioner, supra; see also Estate of

Halas v. Commissioner, 94 T.C. 570, 577-578 (1990).

We note that if petitioners had not met the burden of

producing sufficient evidence to support an independent valuation

over respondent’s valuation, we would have had to hold for

respondent even if we had rejected the valuation of respondent’s

expert.

In Anselmo v. Commissioner, 80 T.C. at 884-885, we

rejected the valuations of both parties' experts, but upheld the

Commissioner’s determination of value used in the notice of

deficiency.

In Anselmo, the testimony of the taxpayer’s experts

showed there was no reliable way of working back from the figures

they computed because they had relied upon the retail store

market and not the wholesale market.

In that case, we held that

the wholesale market was the relevant market for low-quality,

unset gemstones.

The ultimate consumers of those unset gemstones

were jewelers who would in turn mount them into settings to sell

to retail customers, who were the ultimate consumers of lowquality, set gemstones.

Id.

We need not rely upon the burden of proof to value most of

petitioner's collection.

Everett, petitioners' expert, used the

- 41 proper market, retail stores, to value the collection.

The

record also contains sufficient evidence to enable us to work

back from Everett's figures to arrive at a reliable independent

valuation for all but three categories of memorabilia in the

collection.

a.

Blockage Discount

Once a proper market is selected, individual items in a

charitable contribution are to be valued individually, and not in

bulk.

Sec. 20.2031-1(b), Estate Tax Regs.

However, where a

block of property could not be sold on the valuation date or

within a reasonable period thereafter without affecting market

price, the Court must apply a “blockage” discount.

Richardson v.

Commissioner, 151 F.2d 102, 103 (2d Cir. 1945), affg. a

Memorandum Opinion of this Court dated November 30, 1943.

This

Court has applied blockage discounts to estates of artists that

contain large numbers of the artist's own works for which there

is only a limited market because of the nature of the art.

Calder v. Commissioner, 85 T.C. 713, 722-723 (1985) (blockage

discount applied to six simultaneous gifts of large number of

works by one artist); Estate of Smith v. Commissioner, 57 T.C.

650, 658 (1972), affd. 510 F.2d 479 (2d Cir. 1975) (blockage

discount applied where estate contained 425 pieces and record

showed that artist's works appealed to relatively small group of

willing buyers); see also Estate of O'Keeffe v. Commissioner,

T.C. Memo. 1992-210.

The Court has also applied a blockage

- 42 discount to a charitable donation of a collection of Yiddish

sheet music, obtained in a single bulk purchase, containing

hundreds of identical copies that would have depressed prices if

they had been sold.

See Rimmer v. Commissioner, T.C. Memo. 1995-

215 (85,000 pieces of 650 separate titles in a declining market).

Blockage discounts--if appropriate to the particular facts in the

case--apply to donations to museums.

Commissioner, supra.

Estate of O'Keeffe v.

Determination of a reasonable period of

time “depends on all the facts and circumstances”.

Estate of

Sawade v. Commissioner, T.C. Memo. 1984-626, affd. 795 F.2d 45

(8th Cir. 1986).

Periods of up to a year have been found to be

reasonable, id., although such periods may be much shorter if

factors such as market volatility and time limitations so

dictate.

The parties' experts differed on the amount of time that it

would take to sell the collection.

Warren postulated a period of

no less than 1 to 2 years because of the difficulties attendant

in gaining access to the market.

However, Warren did not

consider how long it would take a skilled dealer in movie

memorabilia already present in the retail store market to sell

the collection.

Bull v. Smith, 119 F.2d 490, 492 (2d Cir. 1941).

Everett estimated that the collection could be sold on

consignment in a retail store within a year without affecting the

prices obtained for each individual item.

The collection was

- 43 relatively small in relation to the inventory carried by a movie

memorabilia store or chain of stores.14

A year to liquidate the collection at full retail store

prices would not be unreasonable under the circumstances.

The

minimal physical storage requirements and comparatively stable

prices in the movie memorabilia market over the course of a year

support such a finding.

Sec. 20.2031-2(e), Estate Tax Regs.

These same characteristics would also tend to minimize

carrying costs.

There would be no additional marketing expenses

since such a store would already be in existence and the

collection would merely be an addition to existing inventory,

utilizing existing marketing techniques.

Everett's estimate of a

year is also quite short in comparison to the periods of time far

exceeding a year that would be required to liquidate the estate

of an artist with a large body of work.

See, e.g., Calder v.

Commissioner, supra at 725-726 (period of up to 22 years to

liquidate collection); Estate of O'Keeffe v. Commissioner, supra

(more than 10 years to sell entire collection).

It would also be inappropriate to discount the collection as

we did the donation of thousands of duplicate copies of Yiddish

sheet music in Rimmer v. Commissioner, supra, or the large number

of donated books in Skripak v. Commissioner, 84 T.C. 285, 324

14

There are 7,378 items in the collection. Everett

testified that his three stores carry in excess of 3 million

items in inventory. His personal collection was even larger than

that.

- 44 (1985) (500,000 reprints of scholarly books donated in large,

coordinated program were worth only 20 percent of retail list

price).

Only 546 of the 7,378 items in petitioner's collection

were duplicates, and generally there were no more than two to

three copies of any particular item.

Furthermore, these items

had value in the marketplace because of the existence of an

active barter market where dealers, collectors, and museums could

trade.

Contrary to respondent’s contention, the fact that AMMI

had not yet participated in that market at the time of trial,

albeit in part because of the pendency of this proceeding, is of

no moment in determining whether to value the duplicates at full

fair market value.

Based upon the foregoing considerations, we do not apply a

blockage discount to the fair market value of petitioner’s

collection.

b.

Fair Market Value of the Collection

We recognize that valuation of property is an inexact

science.

If the parties do not settle on a value, and neither

party's appraisal can be accepted, the Court can resolve it only

through “Solomon-like” pronouncements, Buffalo Tool & Die

Manufacturing Co. v. Commissioner, 74 T.C. at 452, based upon

evidence in the record.

We considered a number of factors in arriving at a fair

market value of the collection.

The agreed mint condition of the

collection played a major role, both in determining the relevant

- 45 market, as discussed supra, and in valuing each item for sale on

an individual basis.

Everett's testimony that the collection’s

mint condition would tend to increase the prices commanded in a

retail store was strongly supported by commentary in all of the

movie memorabilia pricing guides in evidence.

The level of collector demand for the titles in the

collection was also very important.

Everett characterized the

collection as “middle of the road”.

The pricing guides, Warren's

concession that at least some of the titles were marketable, and

the evidence in the record that the collection as a whole could

be sold in the New York retail market all support Everett's

characterization.

The collection contained some quite desirable

titles, some titles for which there was an identifiable level of

demand, and still others for which ascertaining any level of

demand from the record was difficult.

The record indicates that the base price of one-sheets, the

most commonly sold category of movie memorabilia, was somewhere

between $5 and $15 in December 1985.

In no case did any 1985

pricing guide in the record, other than Warren's, indicate a

value of less than $10 for any one-sheet.

But Warren's 1985

prices were intentionally low--as Warren himself revealed in

later editions of his price guide.

The 1985 price guides in the

record, other than Warren's, list prices for 106 one-sheets in

- 46 the collection (hereinafter reference sample).15

The sample uses

the lowest price found, independent of either of the experts, for

each of the 106 matched items.16

The total for the 106 one-

sheets was $2,697, for an average value of $25.44.

The lowest

value was $10, and the highest found was $137.50.

We compared

the reference sample of independent prices with Warren's and

Everett's valuations.17

Everett's valuation of the same 106 one-sheets was $4,760,

or $44.91 per item.

The lowest value assigned by Everett was $20

and the highest was $200.

The ratio of the values in the

reference sample to Everett's valuation was 0.57.

the same sample at $782, or $7.38 per item.

Warren valued

The overall value of

the reference sample was 3.45 times greater than Warren's

valuation.

The lowest value assigned by Warren was $1 and the

highest was $75.

For purposes of assigning a valuation to the rest of the 513

one-sheets, the ratio of the reference sample to Everett's

valuation of the sample, 0.57, was used to adjust Everett's

valuation of the whole.

Warren's valuation was disregarded

because it used the wrong market and did not assign values to any

15

See supra note 8 for price guides that listed prices for

the 106 one-sheets in the reference sample.

16

Where a poster was listed in more than one pricing guide,

we took the lowest price. If a pricing guide gave a range of

prices for a poster, we used the midpoint of the range of values.

17

See Table 2.

- 47 of the 546 duplicates in the collection.

As discussed supra, the

duplicates have the same fair market value as the rest of the

collection and should be included in the valuation.

When the

ratio of 0.57 is applied to Everett's valuation of the 513 onesheets, the one-sheet category is valued at $9,746, an average

value of $19.

With the exception of lobby cards, too little information

exists in the record to gather reliable independent prices for

large enough samples in the other categories of movie memorabilia

to similarly adjust Everett's valuations.

However, the pricing

guides, such as Luton's, Dietz, and Warren, give ranges of values

relative to one-sheets for several categories.

We adopt the

midpoint of these values for each category in which they are

available.18

In the 9- by 12-inch lobby card category, 46 titles

were priced in Luton's, at an average price of $20.24 per set of

eight cards, or $2.53 per card.

This price is similar to Dietz,

which priced complete sets of lobby cards at the same price as a

one-sheet for a given title, or about $19 per set for this

collection.

In the absence of further available information, we

adopt the lower of these two estimates, or $19 per set.19

18

See Table 1 for a summary of the valuation of the

collection by category of movie memorabilia. The valuations of

the parties’ experts for each category are also listed.

19

See Table 1.

- 48 For the remaining categories, twenty-four-sheets, color

stills, and black and white stills, the record contained

insufficient facts upon which to base a reliable value.20

We

find that petitioners have failed to carry their burden of proof

in establishing a fair market value in those categories.

v. Commissioner, 80 T.C. at 884-886.

Anselmo

Therefore, respondent’s

valuation must be used for those three categories.

However, we

also find that respondent, by virtue of having submitted an

expert report that values the collection at $5,733.49, nearly

three times greater than the $1,956 valuation underlying the

determination in the notice of deficiency, has effectively

conceded that $1,956 is too low to be the 1985 fair market value

of the collection.

We therefore adopt the values in Warren’s

20

The only reference to a value for twenty-four-sheets was

to “The Misfits”, which was offered at a suggested price of $600

to $1,000 at the October 1985 Guernsey's auction, but was not

sold. Even with the drawbacks of being made in the auction

market without identification of a willing buyer, the offer

indicates that the twenty-four-sheets had some value in the

auction market. Also, the fact that AMMI had been organized by

1985 indicates that all movie memorabilia had some intrinsic

value not necessarily quantifiable by reference to sales in an

open market, much as the sculptures in Estate of Smith v.

Commissioner, 57 T.C. 650, 658 (1972), affd. 510 F.2d 479 (2d

Cir. 1975), were valuable even though the large size of many of

them restricted their appeal to museums and other like buyers.

AMMI’s willingness to restore the twenty-four-sheet for “Bwana

Devil” also indicates an intrinsic value, even if only for

purposes of scholarly research and display. However, these

indications are too slender a collection of reeds to sustain a

valuation of all 48 twenty-four-sheets in the collection.

The only reference to prices for stills was in Dietz, who

refused to give a specific range of values because there were too

many pricing variables.

- 49 report for those three categories of memorabilia only.

We find

that the total fair market value of the collection in December

1985 was $50,412.

4.

Additions to Tax for Valuation Overstatement

Section 6659(a) imposes an addition to tax if there is an

underpayment of tax of at least $1,000, sec. 6659(d),

attributable to an overstatement of the value of charitable

deduction property.

This addition to tax is applied to each year

in issue, in this case all the years in which an underpayment

results from a deduction claimed pursuant to a charitable

contribution and its related carryover when such deductions are

“attributable to a valuation overstatement”.

Sec. 6659(a); Todd

v. Commissioner, 862 F.2d 540, 542-543 (5th Cir. 1988), affg. on

this issue 89 T.C. 912 (1987); see also Rogers v. Commissioner,

T.C. Memo. 1990-619.

There is a valuation overstatement where

the claimed value is 150 percent or more of the amount determined

to be correct.

Sec. 6659(c).

Here, petitioners claimed a

charitable donation of $185,085.

We have found the fair market

value of the collection to be $50,412.

These figures place

petitioners' overstatement well in excess of the section 6659(c)

150 percent threshold.

Petitioners seek relief under section 6659(e), which allows

waiver of “all or any part of the addition to the tax provided by

this section on a showing by the taxpayer that there was a

reasonable basis for the valuation * * * and that such claim was

- 50 made in good faith.”

obtain relief.

A taxpayer must satisfy two requirements to

Sec. 6659(f)(2).

Section 6659(f)(2)(A) requires

that the taxpayer obtain a “qualified appraisal”, sec.

6659(f)(3)(C), by a “qualified appraiser”, sec. 6659(f)(3)(B).

In addition to obtaining an appraisal, the taxpayer must make a

good faith investigation into the value of the contributed

property.

Sec. 6659(f)(2)(B); see also McMurray v. Commissioner,

985 F.2d 36, 43 (1st Cir. 1993), affg. in part on this ground,

revg. in part on other grounds, and remanding T.C. Memo. 1992-27.

Rose was a qualified appraiser within the meaning of section

1.170A-13(c)(5), Income Tax Regs.21

His appraisal was a

"qualified appraisal" that met the requirements of section

1.170A-13(c)(3), Income Tax Regs., and was relied on by

petitioner in good faith.

Nothing in the record indicates that,

at the time of the appraisal, petitioner knew, or had any reason

to know, of the participation of Messrs. Rose and Rothschild in

the Jackie Fine Arts imbroglio, nor does the record indicate that

21

To be a “qualified appraiser” within the meaning of sec.

1.170A-13(c)(5)(i), Income Tax Regs., an appraiser must have:

(1) held himself or herself out as an appraiser or performed

appraisals on a regular basis; (2) been qualified on the basis of

background, experience, education, and membership, if any in a

professional association; (3) not been an excluded person under

sec. 1.170A-13(c)(5)(iv), Income Tax Regs.; and (4) understood

the consequences of rendering an intentionally false appraisal.

Based upon Rose’s testimonials, his membership in the

American Society of Appraisers, and the lack of any contrary

information reasonably available to petitioner, Rose met the

requirements of sec. 1.170A-13(c)(5)(i), Income Tax Regs.

- 51 petitioner engaged the two appraisers with the intent to inflate

artificially the amount of petitioners’ charitable contribution

deduction.

See sec. 1.170A-13(c)(5)(ii), Income Tax Regs.

Section 6659(f)(2)(B) requires the taxpayer to have made a

good faith investigation of the value of the contributed property

in addition to the appraisal.

At the advice of petitioners’

accountant, petitioner obtained two appraisals.

The first was

performed by Rothschild and the second by Rose.

Petitioner

ultimately used Rose's appraisal to value the charitable

contribution.

Petitioner obtained Rothschild's name from the

American Society of Appraisers first and then later obtained

Rose's name either from Rothschild or from the Appraisers

Association of America.

In 1985, both Rose and Rothschild were

seemingly well-respected appraisers.

Several years earlier,

Rothschild had been recommended to Everett by the IRS for an

entirely different appraisal in the early 1980's of movie

memorabilia unrelated to this case.

When Everett inquired at

that time about Rothschild at the American Film Institute, as a

matter of due diligence, he received a favorable recommendation.

In 1985, Rose was a member of the board of the Appraisers

Association of America and a senior member of the American

Society of Appraisers.

He also listed an impressive number of

recent clients, including The Brooklyn Children's Museum, the

American Museum of Natural History, and Chemical Bank.

Rose's

curriculum vitae and the recommendations that petitioner received

- 52 from Rothschild and the Appraisers Association of America gave

petitioner no reason to doubt either the competence of Messrs.

Rothschild and Rose or their independence from each other at the

time of the appraisals.

Additionally, petitioner availed himself

of information supplied by AMMI, published sources of market

data, and his personal knowledge as a collector.

In sum, these

actions satisfied the requirement of a good faith investigation.

Because both conditions under section 6659(f)(2) have been

satisfied, we find for petitioners on this issue.

Sec. 6659(e).

To reflect the foregoing,

Decision will be entered under

Rule 155.

- 53 Table 1

Inventory and Valuation of Leibowitz Donation

Category

Dimensions

(inches)

Accessioned

Inventory

Nonaccessioned

Inventory

Total

Quantity

Category

Price1

Category

Total

Warren

Valuation3

Everett

Valuation

1-sheet

27 x 41

447

66

513

$19

$9,746

$1,441.00

$17,200

3-sheet

41 x 81

294

12

306

157%

9,128

759.50

16,740

6-sheet

81 x 81

171

5

176

180%

6,019

478.00

15,040

83

83.00

16,200

2

24-sheet

billboard

45

3

48

Half-sheet

22 x 28

110

4

114

80%

1,733

260.50

2,880

Insert

14 x 36

113

21

134

80%

2,037

250.75

3,615

Lobby card

11 x 14

2,762

96

2,858

100%

6,788

1,587.05

23,090

Lobby card

8 x 10

296

0

296

100%

703

3

1,184

189

188.94

5,127

5

4.50

90

B & W still

8 x 10

1,709

0

1,709

2

2

Color still

9 x 12

18

0

18

Lg. foreign

47 x 62

262

187

449

75%

6,398

445.00

25,795

Med. foreign

23 x 31

182

85

267

75%

3,805

76.25

12,625

Sm. foreign

16 x 21

82

38

120

75%

1,710

31.75

2,955

Pressbook

various

304

27

331

25%

1,572

81.00

6,010

Window card

14 x 22

37

2

39

67%

496

45.25

900

6,832

546

7,378

50,412

5,733.49

149,451

Total

- 54 1

Percentage in this column is relative to the price of a one-sheet, whose average price is $19.

2

The appraised value from Warren’s report was used.

3

Warren separately inventoried and priced two 15- by 31-inch items for 50 cents that were included

elsewhere in the AMMI inventory and appraised the 8- by 10-inch lobby cards as black and white stills,

although he did not include all of them in the appraised inventory. Warren also did not exclude all the

duplicates from his appraisal, which accounts for inconsistent counts of his inventory compared to the AMMI

inventory. There is also a further 50 cents unaccounted for.

- 55 Table 2

Reference Sample of 106 One-Sheets

Title

Petr. Expert

Resp.

Expert

Exact Match

Price

Annie Hall

$20.00

$1.00

$20.00

Attack

20.00

10.00

40.00

Audrey Rose

20.00

1.00

12.50

Bananas

20.00

1.00

37.50

Bank Shot

20.00

1.00

25.00

Barefoot Contessa

100.00

8.00

75.00

The Beachcomber

20.00

10.00

10.00

Beachhead

20.00

10.00

10.00

The Big Country

60.00

30.00

35.00

Black Tuesday

20.00

15.00

30.00

Breakheart Pass

20.00

1.00

17.50

A Bridge Too Far

60.00

3.50

17.50

Burnt Offerings

20.00

1.00

17.50

Bwana Devil

200.00

10.00

75.00

By Love Possessed

60.00

1.00

22.50

Captain Kidd and the Slave

20.00

10.00

10.00

Carrie

40.00

1.00

25.00

Cast a Giant Shadow

80.00

1.00

25.00

Chato's Land

20.00

1.00

15.00

Charge of the Light

Brigade

60.00

1.00

15.00

Child is Waiting

60.00

1.00

20.00

The Children's Hour

60.00

1.00

30.00

Crime of Passion

20.00

10.00

10.00

Curse of the Faceless Man

60.00

15.00

50.00

The Defiant Ones

20.00

30.00

12.00

The Diamond Wizard

20.00

10.00

10.00

Diary of a Madman

20.00

1.50

20.00

- 56 Title

Petr. Expert

Resp.

Expert

Exact Match

Price

Doctor Blood's Coffin

60.00

2.00

17.50

Eight on the Lam

20.00

1.00

35.00

Enemy from Space

60.00

15.00

40.00

Ferry Across the Mersey

60.00

1.00

25.00

Flame Barrier

20.00

10.00

40.00

Follow That Dream

100.00

1.00

40.00

Foreign Intrigue

20.00

10.00

45.00

Four Days in November

60.00

1.00

12.00

Frankie and Johnny

100.00

1.00

30.00

The Fuzzy Pink Nightgown

20.00

10.00

40.00

Gator

20.00

1.00

10.00

Gun Brothers

20.00

10.00

10.00

A Hole in the Head

60.00

15.00

12.00

Huckleberry Finn

20.00

1.00

10.00

I Could Go On Singing

100.00

1.00

30.00

I, The Jury

100.00

15.00

12.00

Inherit the Wind

60.00

2.00

20.00

It, Terror From Beyond

100.00

40.00

75.00

Judgment at Nuremberg

80.00

2.00

27.50

The Kentuckian

20.00

10.00

12.00

King's Go Forth

60.00

10.00

25.00

The Lady Says No

20.00

10.00

10.00

Lilies of the Field

60.00

1.00

30.00

Live and Let Die

100.00

2.00

40.00

The Long Goodbye

20.00

3.00

30.00

Love and Death

20.00

1.00

30.00

Macumba Love

20.00

1.00

17.50

A Man and a Woman

60.00

1.00

40.00

The Man in the Net

20.00

10.00

17.50

The Man of La Mancha

60.00

2.00

15.00

The Manchurian Candidate

60.00

1.00

25.00

- 57 Title

Petr. Expert

Resp.

Expert

Exact Match

Price

The Missouri Breaks

60.00

1.00

35.00

Mister Moses

20.00

1.00

15.00

Moby Dick

20.00

15.00

16.00

Monster that Challenged

60.00

25.00

50.00

Mrs Pollifax-Spy

20.00

1.00

20.00

Ned Kelly

60.00

2.00

40.00

Network

20.00

4.00

17.50

New York, New York

60.00

1.00

60.00

Nightmare

20.00

15.00

10.00

The Offense

20.00

1.00

10.00

On Her Majesty's Secret

Service

100.00

5.00

50.00

One, Two, Three

60.00

1.00

40.00

Patterns

20.00

6.00

10.00

Phantom From Space

60.00

15.00

12.00

Return to Treasure Island

20.00

10.00

10.00

The Road to Hong Kong

60.00

1.00

20.00

Rocky

20.00

2.00

25.00

Rollerball

100.00

1.00

30.00

Rosebud

20.00

1.00

12.50

Sabrejet

20.00

10.00

10.00

Sam Whiskey

20.00

1.00

17.50

The Satan Bug

20.00

1.00

17.50

Scorpio

20.00

1.00

10.00

Separate Tables

60.00

15.00

35.00

A Shot in the Dark

20.00

1.00

35.00

Sitting Bull

20.00

5.00

10.00

Skip Along Rosenblum

20.00

10.00

12.00

The Spy Who Loved Me

100.00

1.00

20.00

The Steel Lady

20.00

20.00

10.00

Storm Fear

20.00

10.00

15.00

- 58 Title

Petr. Expert

Resp.

Expert

Exact Match

Price

Stolen Hours

20.00

2.00

20.00

Streetcar Named Desire

100.00

60.00

137.50

Sweet Smell of Success

20.00

10.00

12.00

The Thomas Crown Affair

60.00

2.00

35.00

Thunder Road

100.00

75.00

35.00

Thunderbolt & Lightfoot

100.00

4.00

35.00

Tom Sawyer

20.00

1.00

10.00

Top of the World

20.00

10.00

10.00

Tower of London

60.00

1.00

30.00

Twice Told Tales

60.00

1.00

17.50

U.F.O.

20.00

15.00

10.00

We Want a Child

20.00

10.00

10.00

What's New Pussycat?

20.00

1.00

40.00

Where's Poppa

20.00

1.00

17.50

White Lightning

20.00

2.00

12.50

Witness for the

Prosecution

100.00

25.00

30.00

Woman of Straw

60.00

1.00

25.00

Wonderful World of Henry

Orient

20.00

1.00

25.00

4,760.00

782.00

2,697.00

Average

44.91

7.38

25.44

Lowest price

20.00

1.00

10.00

Highest price

200.00

75.00

137.50

Total