                      T.C. Memo. 1997-241



                  UNITED STATES TAX COURT



          ESTATE OF JUANITA F. SIRMANS, DECEASED,
          DAN L. SIRMANS, EXECUTOR, Petitioner v.
       COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8466-94.                    Filed May 28, 1997.



     David M. Green and Thomas Gallo, for petitioner.

     Lawrence B. Austin and Lawrence Green, for respondent.



          MEMORANDUM FINDINGS OF FACT AND OPINION

     WHALEN, Judge:   Respondent determined an estate tax

deficiency of $123,087.43 with respect to the Estate of

Juanita F. Sirmans, Deceased.   After concessions, the sole

issue for decision is the date-of-death value of certain
                              - 2 -


real property owned by the decedent on the date of her

death.

                     FINDINGS OF FACT

     The decedent, Juanita F. Sirmans, died testate on

September 7, 1990.    She was a resident of DeKalb County,

Georgia, at the time.    She was survived by her son,

Mr. Dan L. Sirmans, who was appointed executor of her

estate.   Mr. Sirmans resided in Manilus, New York, at

the time the instant petition was filed.

     At the time of trial, Mr. Sirmans held a master

of science degree from Rochester Institute of Technology,

and he was in the process of completing his Ph.D. at

Syracuse University.    Mr. Sirmans was employed by Rochester

Institute of Technology as an adjunct professor and by

Carrier Corp. as a senior consulting manager.

     In 1984, while the decedent was living in Atlanta,

Georgia, she suffered a severe stroke.    After the stroke,

she moved to her son's home, which was in St. Louis,

Missouri, at that time.    Mr. Sirmans soon realized that the

decedent was no longer capable of handling her own

financial affairs.    Accordingly, at Mr. Sirmans'

suggestion, the decedent executed a power of attorney

authorizing him to act on her behalf.    Mr. Sirmans handled
                             - 3 -


the decedent's affairs pursuant to the power of attorney

from 1984 until the date of the decedent's death.

     After receiving the decedent's power of attorney,

Mr. Sirmans proceeded to inventory and value all of the

decedent's property.   Among other assets, the decedent

owned 56.5 acres of land in Hillsborough County, Florida.

The property is located on Hixon Road, approximately 1 mile

south of Citrus Park, a community northwest of Tampa,

Florida.   The decedent had inherited the property from

her father in 1975.    It had been used as an orange grove

until the orange grove was destroyed by a freeze.

     The area in which the property is located, as well

as the Tampa area in general, had experienced substantial

growth in the decade preceding the decedent's death.

The direction of the growth from downtown Tampa had been

toward the subject property.    As of the date of the

decedent's death, the development and construction of

residences and apartment complexes had slowed dramatically.

     The subject property is identified on the Hillsborough

County tax roles as two contiguous parcels of property

referred to as "folios" 3143 and 3143.5.    Folio 3143

consists of approximately 30.03 acres, and folio 3143.5

consists of approximately 26.47 acres.    Much of both

parcels is wetland or environmentally sensitive property
                             - 4 -


that cannot be developed.    While no Government agency had

formally designated any part of the subject property as

wetland, we find that, as of the time of the decedent's

death, the breakdown between wetland and dry land for each

parcel was as follows:



     Folio     Total           Wetland          Dry Land

     3143.0    30.03        10.03 (33.40%)   20.00 (66.60%)
     3143.5    26.47        23.00 (86.89%)    3.47 (13.11%)

               56.50        33.03 (58.46%)   23.47 (41.54%)


We sometimes refer to the portion of the subject property

consisting of so-called dry land as "usable acres".

     On December 7, 1984, Mr. Sirmans hired Mr. John Hunt,

ARA, to appraise the decedent's 56.5 acre parcel.    Mr. Hunt

concluded that the highest and best use of the decedent's

property was for residential use.    Using the market value

approach, under which similar parcels of property are

compared to the subject parcel, Mr. Hunt valued the subject

property as follows:


       22.27 acres highland @ $10,000/Ac = $222,700
       34.23 acres low swamp @ 500/Ac    =   17,115
       56.50                                239,815

       Value from the market approach         240,000
                             - 5 -


     In 1987, the decedent suffered a second stroke and her

health worsened.   Because the decedent required continuous

care, Mr. Sirmans placed her in a nursing home.   From 1987,

until her death, the decedent lived in and out of various

nursing homes.   During this period, the decedent's medical

bills approximated $50,000 to $60,000 per year.

     As a result of the decedent's living expenses and

escalating medical bills, Mr. Sirmans became concerned

about the decedent's financial security and the liquidity

of her assets.   Accordingly, he considered selling the

decedent's 56.5 acres of land.   Beginning in 1987 and

continuing through 1989, from time to time he permitted

different brokers to show the property.   He did not enter

into a listing agreement with any of the brokers, but he

told them that the asking price for the property was

$625,000, that is, $25,000 per acre for the usable property

of approximately 25 acres.   Mr. Sirmans considered the

portion of the subject property that was wetland to have

little or no value.

     For property tax year 1988, the tax assessor for

Hillsborough County valued the subject property at

$472,640.   The assessed value of the parcel designated

folio 3143 was $362,400, or 76.68 percent of the total, and
                            - 6 -


the assessed value of the parcel designated folio 3143.5

was $110,240, or 23.32 percent of the total.

     In late 1989, Mr. Sirmans signed an exclusive listing

agreement with Mr. Joe Wegman of Wegman Associates, Inc.,

Realtors (Wegman Realty), a company that had been in

existence for over 30 years.   Wegman Realty placed signs

on the property and engaged in direct mail advertising in

an attempt to sell the property.    For the so-called dry

land, Wegman Realty set the purchase price at $25,000 per

acre.   Despite Wegman Realty's marketing efforts that

included showing the land to approximately 200 persons,

no offer to purchase the property was received.

     In January 1990, shortly after signing the exclusive

listing agreement with Wegman Realty, Mr. Sirmans learned

that Hillsborough County was planning to acquire a portion

of the decedent's land for a road project.    Mr. Sirmans

hired an attorney, Mr. George Phillips, to represent him

before the County and at public hearings.    In February

1990, Mr. Phillips sent Mr. Sirmans a letter which stated

that there was virtually no chance of selling the property

during the time it would take for the County to consider

the road project.   One of the "chief difficulties" that

Mr. Wegman had in marketing the property was the fact that

the road right-of-way was not definite and, as Mr. Wegman
                             - 7 -


testified, "nobody knew exactly where the road was going

to go".   Mr. Sirmans' attorney, Mr. Phillips, suggested

taking the property off the market and investigating the

possibility of borrowing against the property.

     After several inquiries of mortgage brokers and

financial institutions, Mr. Sirmans learned that banks

would consider lending approximately 30 to 50 percent

of the value of the property.    As a prerequisite, the

banks would require a recent appraisal of the property and

would require Mr. Sirmans to guarantee the loan personally.

           After these initial inquiries, Mr. Sirmans

contacted several appraisers.    He asked for an appraisal of

the subject property that would be "a very attractive or

high appraisal, so that it would be an appealing loan for a

bank to consider".   At least one appraiser refused to

provide an appraisal on that basis.

     Mr. Sirmans discussed the appraisal with a

representative of Bay Area Appraisal Services (BAAS) and

that firm agreed to appraise the decedent's 56.5 acres.

Thereafter, BAAS issued a letter dated June 18, 1990, and

an appraisal report of the decedent's property (BAAS

appraisal) in which it valued the decedent's property at

$791,000 as of the date of the letter, 81 days before the

decedent's death.    The BAAS appraisal concluded that the
                             - 8 -


highest and best use of the property was for development

as a residential subdivision.    The BAAS appraisal is based

upon the assumption that, under the zoning code of

Hillsborough County, the property would be limited to

residential usage at a density of not more than six

dwelling units per acre.

       Mr. Sirmans gave the BAAS appraisal or portions of

the appraisal to several banks in connection with loan

applications.    However, he never obtained a loan using the

decedent's land as security.

       In a letter dated February 14, 1991, 5 months after

the decedent's death, Mr. Sirmans was formally notified of

Hillsborough County's plan to acquire 4.83 acres of the

decedent's property for a roadway project.    The letter

was addressed to the decedent and was written by an

appraiser retained by the County, Mr. Edward L. Fishback,

MAI.    Mr. Fishback's letter states as follows:


       Dear Ms. Sirmans:

            The Hillsborough County Real Estate Depart-
       ment has engaged the undersigned to make an
       appraisal of the property shown on the attached
       plot plan for the purpose of acquiring a portion
       of the right-of-way for the above referenced
       project.

            This is to advise you that we have scheduled
       a field inspection of your property on the date
       and at the time listed below. Please consider
       this an invitation for you or your designated
                            - 9 -


     representative to exercise your legal right to
     accompany us on this inspection. If a survey or
     site plan of said property is available, please
     bring it with you on the date of inspection so
     as to expedite the appraisal process.

          Date:     February 19, 1991 (Tuesday)
          Time:     9:AM

          If you have any questions, please contact
     Patrick Fishback of our office (Phone 813-251-
     5139) at any time.

     Sincerely,


     Edward L. Fishback, MAI


     On April 19, 1991, Mr. Fishback submitted his

appraisal of the 4.83 acres of the parcel designated folio

3143 to Mr. Richard Sargent, Director-Real Estate

Department, Hillsborough County (Fishback appraisal).

According to the appraisal, as of April 19, 1991, the value

of the parcel designated folio 3143 using a comparable sale

approach was $390,500.   The appraisal estimated that the

market value of the 4.83 acres to be acquired for the

proposed road right-of-way, including damages to the

remaining property, was $94,320.

     By letter dated May 8, 1991, Mr. Michael Caruthers of

the Board of County Commissioners, Office of the County

Administrator, wrote to the decedent, c/o Mr. Sirmans, and

offered to purchase the 4.83 acres of the decedent's
                            - 10 -


property for $94,505.    Mr. Caruthers' letter states as

follows:


     Dear Ms. Sirmans:

     Hillsborough County is in the process of
     acquiring right of way for a road project on
     Paglen Road. Our right of way maps indicate
     that we need to acquire 4.83 acres of your
     property. The County has obtained the services
     of a professional appraiser to appraise your
     property. Hillsborough County is offering the
     market value of the property needed for right
     of way.

     Our offer for right of way Parcel 123 is
     $94,505.00.

     As an aid to help you identify the subject
     property, I have enclosed a sketch and legal
     description of Parcel 123.

     When the County acquires property, we must show
     clear title. Please notify us if there are any
     encumbrances against the property.

     When the County purchases the needed right of
     way, we pay all normal closing costs except
     property taxes. You will be required to pay
     your pro-rata share of taxes at the closing.

     By law, all offers are subject to the approval
     of the Board of County Commissioners of
     Hillsborough County, Florida.

     If you need any further information regarding
     this matter, please feel free to contact me.

     Very truly yours,

     Richard Sargent, Director,
     Real Estate Department
                           - 11 -


     In a letter dated May 20, 1991, Mr. Sirmans rejected

the County's offer and made a counterproposal to sell the

4.83 acres of the property for $20,000 per acre or $96,600.

Mr. Sirmans' letter states as follows:


     RE: Project 89-77-R, Paglen Road, Parcel 123

     Attention: Mr. Michael W. Caruthers

     Dear Mr. Caruthers:

     I am in receipt of your letter dated May 8, 1991,
     regarding the above referenced project. In
     regards to the property involved, there are
     several facts of which you need to be advised.
     These are as follows:


                  *   *    *   *    *    *   *

          2. The appraisal and your offer place a
          value on the property of $19,500.00 per
          acre. I find this to be inconsistent
          with the valuation of the property for
          tax purposes. The market value for tax
          purposes for the last several years has
          been $20,000.00 per acre. I believe it
          to be only fair that your offer price
          be consistent with what the county has
          been using as a basis for taxes. I
          would, therefore be willing to accept
          an offer of $20,000.00 per acre or
          $96,600.00 for the 4.83 acres as
          compared to your offer of $19,500.00
          per acre or $94,185.00 for the 4.83
          acres.

          3. Prior to receiving your offer, I
          had entered into an agreement with
          Mr. Ronald Carnes of Odessa, Florida
          to raise cattle on the property. This
          required removing the existing fence
          and replacing it with a five strand
          barbed wire fence at a considerable
                          - 12 -


          cost. Construction of the roadway
          will now require the installation of
          an approximately additional 3,442.08
          feet of five strand fencing. The
          "cost to cure" amount in your offer
          is, therefore, incorrect. I am in the
          process of obtaining an estimate for
          the cost of the additional fencing and
          will advise you as soon as I receive
          it.

          4. I understand that I am entitled
          to obtain an appraisal of my own
          and that the county is required to
          reimburse me for the cost of that
          appraisal. I have been advised that
          such an appraisal can run as much as
          $4,000.00-$5,000.00. If you will
          adjust your offer to $20,000.00 per
          acre and make a reasonable adjustment
          to the "cost to cure" to allow for the
          additional fencing, then I will forego
          the additional appraisal.

     I trust that this provides you with as much
     information as is currently possible. I will
     provide you with further information as soon as
     I am able to obtain it. If you have any
     questions in the meantime, please let me know.

                               Very truly yours,

                                    /s Dan L. Sirmans

                               Dan L. Sirmans

CC: Mr. John W. Lawson, Esq.


In response, Mr. Caruthers wrote the following letter dated

May 28, 1991:


     I have reviewed your proposal for the above
     referenced parcel, and it appears to be an
     equitable settlement. We will be looking
     into the cost of fencing and get back to you
                            - 13 -


     with a revised offer. I believe we are in basic
     agreement on the settlement, but we will request
     our appraiser to review the proposal. I wish to
     thank you for the information provided. Please
     keep me up to date on the title transfer. If
     you need any further information, feel free to
     contact me.


     Several months later, Mr. Caruthers sent another

letter dated October 3, 1991, to Mr. Sirmans:


     I have enclosed for your handling a Purchase
     Agreement in the amount of $100,795.27 for the
     acquisition of the above referenced Parcel 123.


Thus, the purchase price for decedent's 4.83 acres,

$100,795.27, was based upon an agreed price paid for the

land of $20,000 per acre.   The purchase price was reduced

by a property tax arrearage in the amount of $29,611.42,

and airborne and wiring charges totaling $40.      Accordingly,

the estate ultimately received cash in the amount of

$71,143.85 for the 4.83 acres.

     Mr. Sirmans filed Form 706, United States Estate (and

Generation Skipping Transfer) Tax Return, as executor of

the decedent's estate.   He did not elect alternative

valuation.   Thus, he reported the value of the decedent's

assets as of the date of death.      On Schedule A--Real

Estate, attached to the estate tax return, Mr. Sirmans

reported $509,529 as the value of the subject 56.5 acres.

In computing that amount, Mr. Sirmans concluded that the
                               - 14 -


value of the parcel designated folio 3143 was $390,500.

This is the value of that parcel as set forth in

Mr. Fishback's appraisal for Hillsborough County.

Mr. Sirmans concluded that the value of the entire property

was $509,259 based upon the fact that the parcel designated

folio 3143 was 76.68 percent of the assessed value of the

entire tract for property tax purposes (i.e., $390,500 ÷

76.68 percent).     He concluded that the value of the parcel

designated folio 3143.5 was $118,759.         This amount is the

difference between the value of the entire tract, $509,259,

and the value of the parcel designated folio 3143,

$390,500.     Mr. Sirmans' calculation can be illustrated as

follows:

     Folio        Assessed Value     Appraised Value   Estate Value

     3143        $362,400 (76.68%)      $390,500        $390,500
     3143.5       110,240 (23.32%)         --            118,759

                                                         509,259


According to Mr. Sirmans, the value at which he returned

the subject property for estate tax purposes works out to

approximately $200 per acre for the wetland acreage and

approximately $20,000 per acre for the so-called dry land.

In passing, we note that the value of the property reported

on the subject estate tax return, $509,529, differs
                           - 15 -


slightly from the amount discussed in petitioner's post-

trial briefs, $509,259.

     In the subject notice of deficiency, among other

adjustments, respondent determined that the value of the

subject property on the date of the decedent's death was

$791,000.   The notice includes the following explanation

of the adjustment:


          The fair market value, at the date of
     decedent's death, of the 56.5 acres located in
     the northwest 1/4 of the south 1/22 of section
     2, Township 28 South, Range 19 East, Tampa,
     Hillsborough County, Florida, was $791,000.00
     instead of $509,529.00 as reported on the estate
     tax return. Accordingly, the reported value of
     the taxable estate is increased $281,471.00.


                           OPINION

     The sole issue for decision in this case is whether

the 56.5 acres owned by the decedent on the date of her

death was worth $791,000, as determined by respondent, or

$509,529, as reported on the estate tax return filed on

behalf of the decedent's estate.     Petitioner bears the

burden of proving the fair market value of the 56.5 acres

owned by the decedent on the date of her death.     Rule

142(a).   All Rule references are to the Tax Court Rules of

Practice and Procedure.

     The value of the subject property as determined by

respondent in the notice of deficiency, $791,000, is based
                             - 16 -


on the BAAS appraisal dated April 18, 1990.    That appraisal

was requested by the decedent's son, Mr. Dan Sirmans, and,

respondent argues, it is the only appraisal which considers

all 56.5 acres of the decedent's land and is the best

evidence of the land's value on September 7, 1990, the date

of the decedent's death, 81 days later.

       The value of the subject property reported for estate

tax purposes, $509,529, is based on the Fishback appraisal

of the parcel designated folio 3143 that was made at the

request of Hillsborough County in connection with its

purchase of 4.83 acres of that parcel for a road right-of-

way.    Petitioner contends that the reported value of the

subject property is shown to be the correct value by

"the great weight of the valuation evidence" in this case,

consisting of the Hunt appraisal in 1984, the Hillsborough

County real estate tax assessments for the years 1988,

1989, and 1990, the comparable sales listed in the BAAS

appraisal in 1990, the Fishback appraisal in 1991, the

sale of 4.83 acres of folio 3143 to Hillsborough County,

the opinion of Mr. Joseph Wegman of Wegman Realty, and

Mr. Sirmans' own experiences in trying to sell the subject

property for the decedent.    Petitioner also contends that

the BAAS appraisal, on which respondent's determination is
                           - 17 -


based, is not reliable because it fails to differentiate

between so-called dry land and wetland.

     Section 2031(a) requires the "gross estate" of the

decedent to be determined for Federal estate tax purposes,

"by including * * * the value at the time of his death of

all property, real or personal, tangible or intangible,

wherever situated."   All section references are to the

Internal Revenue Code as in effect for 1990.   The fair

market value of property included in a decedent's gross

estate is "the price at which the property would change

hands between a willing buyer and a willing seller, neither

being under any compulsion to buy or to sell and both

having reasonable knowledge of relevant facts."   Sec.

20.2031-1(b), Estate Tax Regs.   This requires property to

be valued from the viewpoint of a hypothetical buyer and

seller, each of whom would seek to maximize his or her

profit from any transaction involving the property.   See

Estate of Watts v. Commissioner, 823 F.2d 483, 486 (11th

Cir. 1987), affg. T.C. Memo. 1985-595; Estate of Bright v.

United States, 658 F.2d 999, 1005-1006 (5th Cir. 1981).

The value of property as of a particular date is a question

of fact.   E.g., Hamm v. Commissioner, 325 F.2d 934, 938

(8th Cir. 1963), affg. T.C. Memo. 1961-347; Messing v.

Commissioner, 48 T.C. 502, 512 (1967).    A sound valuation
                          - 18 -


is based upon all relevant facts.   Sec. 20.2031-1(b),

Estate Tax Regs.

     In determining the value of an asset, we are not

bound by the formulae and opinions proffered by an expert,

especially when they are contrary to our judgment.    Chiu

v. Commissioner, 84 T.C. 722, 734 (1985).    Instead, we may

reach a decision as to the value of the property based on

our own analysis of all the evidence in the record,

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

1976), affg. T.C. Memo. 1974-285; Hamm v. Commissioner,

supra at 941, using all of one party's expert opinion,

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

T.C. 441, 452 (1980), or selectively employing any portion

of such an opinion, see Parker v. Commissioner, 86 T.C.

547, 562 (1986).

     With the above principles in mind, we have reviewed

the arguments of the parties, together with the testimonial

and documentary evidence presented.    Based upon all of the

facts and circumstances of this case, we believe that the

decedent's land was worth $600,000 on the date of the

decedent's death, September 7, 1990.    We set forth below

several comments about the arguments of the parties and the

facts of this case.
                                  - 19 -



BAAS Appraisal

         The BAAS appraisal valued the decedent's 56.5 acre

parcel of land using the comparable sales method.

According to the appraisal, the following land sales were

comparable to the decedent's 56.5 acre parcel:



                Environ-Comparable           Date
                             mentally
   Sale          of Sale     Sale Price      Acres     Price/Acre   Protected

    1           Aug. 19891     $1,446,783   101.137    $14,325         40%
                 arguably          --       120.3792    12,056         --
    2           Jan. 19893        826,700    61.400     13,464         35
                                  909,300    61.400     14,809         35
    3           Aug.   1988     8,300,000   577.800     14,365         30
    4           May    1988    11,146,000   648.820     17,179         35
    5           Jan.   19881    2,975,000   162.700     18,285         25
    6           Dec.   1986     1,300,000    89.500     14,525         06
    A           Dec.   19894      240,000     5.500       --           --
                                  240,000     1.010       --           --

     1
      This transaction was included as a comparable sale in both the BAAS
appraisal and the Fishback appraisal, discussed below.
     2
      This parcel of property contained approximately 120.379 acres of which
approximately 20 acres was reserved for a school and park. The appraisal
calculated the price per acre based upon the gross acreage, 120.379 acres,
and the price per acre based upon the net acreage, 101.137 acres.
     3
       The first purchaser of this property in January 1989 exercised an option
to purchase it for $826,700 before reselling the property for $909,300.
     4
      This transaction involved a land swap between the developers of the
Citrus Park Mall and the Tampa Electric Co.


         The BAAS appraisal concludes that as of June 18, 1990,

the value of the decedent's property was $14,000 per acre

or $791,000 (56.5 acres times $14,000)           In arriving at that
                          - 20 -


conclusion, the BAAS appraisal relied principally on

comparable #1, the August 1989 sale of between 101.137 and

120.379 acres to Hillsborough County for $1,446,783.   The

operative passage of the BAAS appraisal states as follows:


     The sale by [sic] Hillsborough County [comparable
     #1] is of great significance, due to the date the
     sale took place, the similarity of the size, and
     the parcel's proximate location.

     The Hillsborough County purchase of a parcel to
     buffer its sewer plant reflects a price of
     between $12,056 and $14,325 per acre. Centex,
     the seller, obviously placed a value on the land
     based on its residential potential. The county
     typically pays somewhat of a premium, like most
     governmental and quasi governmental agencies.
     This occurs due to disadvantages in negotiations
     and a desire to avoid confrontation or legal
     action. Consequently, we have adjusted the sale
     price that we split between the $14,325 high and
     $12,056 low indicator. We also adjusted this
     comparable up for its inferior location. We have
     concluded a value indicator of $14,000/AC from
     this sale.

     The other comparables are at least 18 months old.
     The unadjusted sale price, on a per acre basis,
     varies from $13,464 [comparable #2] to $18,285
     [comparable #5]. Interestingly, the oldest
     comparable [comparable #6] is for a 90 AC
     defunct orange grove which sold in December,
     1986 for an unadjusted price of $14,525/AC.
     This parcel encompasses a 5 AC lake and has
     no environmentally sensitive land. Hence, our
     sales do not indicate an upward trend in value.
     We believe that the major fall in construction
     activity in Hillsborough County accounts for
     the stable prices of large, raw acreage tracts.
     Few developers can afford to tie up major funds
     in warehousing future development sites.
                              - 21 -


     On the whole, the comparable sites offer similar
     opportunities to a developer of a large acreage
     subdivision. We believe that what the subject
     lacks in percentage of buildable land compared
     to other sites, it makes up in its development
     potential that allows a much higher density.
     Except for the Cathryn Sheldon site [comparable
     #2], the approved density at the comparables
     under zoning or present land use designation is
     much lower. In light of the value indicators
     derived from an analysis of the comparable sales,
     we conclude a total market value of $791,000.


The BAAS appraisal notes that "Approximately 40% of the

total site [comparable #1] is environmentally sensitive."

The appraisal also notes that approximately 20 acres of the

usable land was reserved for a school and park.

     Petitioner complains that the BAAS appraisal does not

set forth the purchase price for each comparable on a "per

usable acre" basis.    According to petitioner, when the

comparable sales used in the BAAS appraisal are analyzed

on a price per usable acre basis, it shows that the

comparables were sold for approximately $20,000 per usable

acre.   Petitioner's analysis is as follows:


                                         Percent    Price Per
Comparable   Purchase Price     Acres      Wet     Usable Acre

    1          $1,446,783      101.137    40        $23,842
                1,446,783      120.379    40         20,031
    2             826,700       61.400    35         20,714
                  909,300       61.400    35         22,784
    3           8,300,000      577.800    30         20,521
    4          11,146,000      648.820    35         26,429
    5           2,975,000      162.700    25         24,380
                              - 22 -


    6             1,300,000     89.500       --         14,525


Thus, according to petitioner, the BAAS appraisal supports

the value reported on the decedent's estate tax return.

     Petitioner also notes that the subject property had

been informally shown to buyers by various brokers over the

course of approximately 1-1/2 years with an asking price

of $25,000 per usable acre.     The property was then formally

listed with Wegman Realty, and that firm showed the

property to approximately 200 persons over the course of

another 1-1/2 years in an attempt to sell the property for

the same price.     Despite those efforts, no offer to

purchase the property was received.        Petitioner notes that

respondent's value of $791,000 is $33,659 on a per-usable-

acre basis (23.5 usable acres).        If the decedent's property

was truly worth over $33,000 per usable acre, petitioner

asks why no one offered to purchase the property at the

listed price of $25,000 per usable acre.

     We note that, on the date of death, September 7, 1990,

it was generally known that Hillsborough County planned to

acquire a part of the decedent's property in connection

with its plan to widen and realign Paglen Road.        However,

at that time, the precise configuration of the road project

was not known.     It stands to reason, as both Mr. Sirmans
                            - 23 -


and Mr. Wegman testified, that the uncertainty of the road

project at that time made it difficult to sell the property

and temporarily decreased the property's value.    This is

confirmed by that fact that Mr. Sirmans received no offer

to purchase the property as a result of the marketing

efforts of Wegman Realty from late 1989 through the date of

death.

     The BAAS appraisal purports to value the property as

of June 18, 1990.    However, the appraisal makes clear that

BAAS did not take into account the road project.

Assumption No. 5 of the appraisal states as follows:


     We have valued the subject in its current con-
     dition, prior to an announced taking of right-
     of-way for a 122' wide strip connecting Gunn
     Highway and Sheldon Road that will transverse
     the subject.


It is evident, therefore, that the BAAS appraisal fails to

take into consideration a significant factor that bears on

the value of the decedent's property as of the date of

death.


Fishback Appraisal

     The Fishback appraisal utilized a three-step process

in arriving at the market value of the 4.83 acres to be

acquired for the proposed right-of-way, including damages
                                        - 24 -


to the remaining property.                First, the appraisal valued the

parent tract, the parcel designated folio 3143, before the

"taking".        Second, the appraisal valued the 4.83 acres of

folio 3143 and a barbed wire fence which were taken.

Finally, the appraisal valued the remainder of folio 3143

after the taking.

       According to the Fishback appraisal, the following

land sales were comparable to the parcel designated folio

3143:
               Date                   Size/                       Price Per    Price Per
Comparable    of Sale      Price      Acres        Dry    Wet     Gross Acre   Dry Acre

     1         7/30/90    $360,000     9.340     9.34      --      $38,544     $38,544
     2         6/26/90     285,000     9.810     9.81      --       29,052      29,052
     3         3/13/90     705,000    50.000    50.00      --       14,100      14,100
     41        7/31/89   1,446,783   101.137    50.50    50.5       14,305      28,649
     5        12/22/88   1,650,000    54.474    53.00     1.474     30,290      31,132
     62        1/01/88   2,873,500   162.700   122.00    40.7       17,661      23,553
  Listing 1                900,000    67.062    45.702   21.36      13,420      19,693


   1
    Same as comparable #1 of the BAAS appraisal.
   2
    Same as comparable #5 of the BAAS appraisal.


Based upon the above comparables, the appraisal concludes

that the value of the parcel designated folio 3143 was

$13,000 per acre or $390,390 (30.03 acres x $13,000).                               The

operative passage of the Fishback appraisal is as follows:


        The subject has been listed on the open market
        at $25,000 per gross acre for approximately a
        two year period. The sale price was based on a
        25 acre size and about 10 acres was estimated by
        the appraisers as environmentally sensitive land.
        Because of the possible environmental constraints
        for the unusable areas relative to future
                          - 25 -


     development, it is our opinion that a prudent
     purchaser would pay substantially less in today's
     market.

     Sale Nos. 1, 2, 4, 5, and 6 were considered
     superior to the subject for reasons previously
     mentioned (zoning and/or location). Sale No. 3
     is located in close proximity to the subject and
     is considered a more reliable indicator of value.
     Listing 1 is a property listing which would
     indicate the upper value limit for the subject.

     Based on the preceding, it is our opinion that
     the estimated market value of the property would
     be $13,000 per acre based on the gross acreage.
     The [sic] equates to $19,520/acre for the usable
     20 acre size. Therefore:

          $13,000/acre X 30.03 acres = $390,390

                         ROUNDED TO   = $390,500


     The second step in the appraisal was to value the

part of the property taken by the County, consisting of a

4.83-acre strip which the Fishback appraisal described "as

part of the upland area of the parent tract".   The Fishback

appraisal describes the value of the part of the property

taken as follows:


     The value of the upland area of the parent tract
     [i.e., usable land] was estimated at $19,500 per
     acre (rounded). The same sales that were used in
     valuing the entire parcel in the before situation
     have been utilized in valuing the subject taking.
     Sales of lands similar to the strip taking [sic]
     are scarce in the market place. Therefore, we
     have relied on the documented sales which were
     used to provide an indication of value for the
     parent tract. It is our opinion that the exist-
                                - 26 -


     ing barb wire fence line makes some contribution
     to value. The cost to replace the barb wire
     fencing along the north boundary was estimated by
     the appraisers based on estimates obtained from
     fencing contractors throughout Hillsborough
     County. The fence appears to be about five years
     old based on the observed condition. We have
     estimated the depreciation at 50%. Therefore,
     the value of the part taken is summarized as
     follows:

                         LAND AREA

           4.83 acres X $19,500/acre              =   $94,185

                         IMPROVEMENTS

           Barb wire
             fence: 135 LF X $2/LF X 50%          =   $   135

            TOTAL VALUE OF THE PART TAKEN         =   $94,320


     The final step in the appraisal is to value the

property remaining "after the taking" to determine whether

the value of that property would be diminished as a result

of the taking.   According to the Fishback appraisal, the

completion of the road project would actually enhance the

value of the remaining property.         The appraisal states as

follows:


     After the taking, the "L" shaped parent tract
     will be separated into three separate parcels
     with increased road frontage and exposure from
     the proposed Paglen Road. * * *

                 *   *      *   *    *    *   *
                          - 27 -


     The subject property is located on a two lane
     local arterial. After the taking, the three
     remainder tracts will be located on a heavily
     travelled two lane thoroughfare which will
     ultimately be expanded to six lanes. This will
     greatly improve access and exposure to the sites.
     In our opinion, the change will act to enhance
     the value of the subject properties. Various
     conversations with the Hillsborough County
     Planning Commission, Department of Development
     and Review and Zoning Departments indicate that
     higher intensive uses are probable, subject to
     rezoning and site plan review. The highest and
     best use before the taking, was considered to be
     an agricultural use until the demand ripens for
     additional residential uses in the area. The
     highest and best use of the subject parcels after
     the taking was considered to be a transitional
     agricultural use to future residential and office
     usage. Support for the value enhancement will be
     measured in the following "Land Valuation-After"
     section. Before the taking, the subject property
     had an estimated market value of $13,000 per
     gross acre. After the taking, the remainder
     parcels have an overall estimated market value of
     $36,111 per gross acre. This represents about a
     $23,000 per gross acre value enhancement.

     In our opinion, the proposed road project would
     favorably impact a number of properties in the
     immediate vicinity of the subject. For this
     reason, these benefits have been classified as
     general, which do not offset damages, if any.


Property Tax Value

     Petitioner asserts that the assessed value of the

decedent's land for property tax purposes was $472,640 for

tax years 1988, 1989, and 1990.    Petitioner argues that

this assessed value for property tax purposes is probative

of the value of the decedent's property in view of the fact
                             - 28 -


that in Florida property tax values must be based upon a

"just valuation" of the subject property.      See McArthur

Jersey Farm Dairy, Inc. v. Dade County, 240 So. 2d 844

(Fla. Dist. Ct. 1970)(citing (Walter v. Schuler, 176 So. 2d

81, 85-86 (Fla. 1965)).

     In this case, the parties have stipulated that the

assessed value of the subject property "as of 1988" was

$472,640.   However, the record does not support

petitioner's assertion that the subject property was

assessed at the same amount "in years 1988, 1989 and 1990".

In fact, the BAAS appraisal states that the assessed value

of the subject property was as follows:

             Property     Per Acre     Per Acre     Percent
   Year      Tax Value    Gross 56.5   Dry 23.47    Change

   1986      $267,560     $4,735.58    $11,400.09
   1987       314,250      5,561.95     13,389.43     17
   1988       833,000     14,743.36     35,492.12    165
   1989       472,640      8,365.31     20,138.05    -43


Sale to the County

     Petitioner argues that the sale of 4.83 acres of land

to Hillsborough County for approximately $20,000 per acre

is the "best evidence of fair market value" of the

decedent's property.     According to petitioner, this sale

"was a negotiated sale between arm's length parties", not a

forced sale; it was made reasonably close to the valuation
                          - 29 -


date; and there is no evidence that the conditions of the

property changed in any material way between the date of

death and the date of the sale.

     Even if we accept petitioner's contention that the

sale of 4.83 acres of the decedent's land to Hillsborough

County was an arm's-length sale by a willing buyer to a

willing seller, we are not certain that it is the best

evidence of the fair market value of the decedent's land.

We infer that petitioner may have had an incentive to reach

a speedy agreement for sale of the 4.83 acres with

Hillsborough County and may have been willing to sell the

property for less than its fair market value.    We base that

inference on three factors:   (1) It was difficult to sell

the decedent's property until Hillsborough County's plans

for the road project became more definite and known; (2)

the construction of the road project was anticipated to

increase the value of the surrounding areas, including

decedent's land; and (3) the County had the power to

condemn the property.

     To reflect the foregoing and concessions,



                                    Decision will be entered

                               under Rule 155.
