                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ESTATE OF EVA FRANZEN                           No.    18-70565
KOLLSMAN, DECEASED, JEFFREY
HYLAND, EXECUTOR,                               Tax Ct. No. 26077-09

                Petitioner-Appellant,
                                                MEMORANDUM*
 v.

COMMISSIONER OF INTERNAL
REVENUE,

                Respondent-Appellee.

              Appeal from a Decision of the United States Tax Court.

                        Argued and Submitted June 5, 2019
                                Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and ZIPPS,** District Judge.

      The Estate of Eva Franzen Kollsman appeals the Tax Court’s determination

of the fair market value of two Old Master paintings, Village Kermesse with Dance

Around the Maypole (Maypole) and Orpheus Charming the Animals (Orpheus). As



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
a result of this determination, the Tax Court found there was a deficiency in estate

tax due in the amount $585,836. The Estate also seeks a reduction in the interest

owed on the deficiency. We have jurisdiction under 26 U.S.C. § 7482(a)(1) and

affirm.

      “[T]he Tax Court’s determination of the value of property is a finding of fact,

which we will reverse only for clear error.” Sammons v. Comm’r, 838 F.2d 330, 333

(9th Cir. 1988) (citations omitted). We review issues of law de novo. See Meruelo

v. Comm’r, 691 F.3d 1108, 1114 (9th Cir. 2012) (citation omitted).

          1. The Tax Court correctly applied the law. The Tax Court correctly

concluded that the relevant value of the paintings was the fair market value on the

valuation date, the time of Kollsman’s death. See Treas. Reg. 20.2031-1(a), (b). The

Tax Court also correctly concluded that “[f]air market value for this purpose is the

price at which 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.” See Treas. Reg. 20.2031-1(b).

          2. The Tax Court further correctly recognized that the hypothetical buyer

and seller are presumed to have reasonable knowledge of the relevant facts affecting

the property’s value. See Ebben v. Comm'r, 783 F.2d 906, 909 (9th Cir. 1986).

Testimony from a preeminent conservator and the IRS’s expert witness, Dr. Peter

Cardile, supports the Tax Court’s finding that as of the valuation date, the


                                         2
hypothetical buyer would know that cleaning was “a well advised and low-risk

undertaking.” See Doherty v. Comm’r, 16 F. 3d 338, 340 (9th Cir. 1994); see also

Furstenberg v. United States, 595 F.2d 603, 609 (Ct. Cl. 1979) (considering fact that

“a prospective buyer could have ascertained that a skillful cleaning effort [of a

painting] probably would have been successful.”). Even the Estate’s expert witness,

George Wachter, observed that “under all the dirt the pictures seemed to be in

reasonably good condition.” The Tax Court also did not err in concluding that

Wachter exaggerated the dirtiness of the paintings and the risk of cleaning them.

      3.     The Tax Court did not improperly base its valuation on Maypole’s sale

price. Rather, in arriving at its valuation, the Tax Court primarily relied on Dr.

Cardile’s valuation. Moreover, the Tax Court did not err in finding that Wachter

failed to explain the nearly fivefold increase in value between his valuation and the

sale price. Although Wachter asserted that there was a surge in demand for Old

Master paintings in 2009, the Estate failed to establish an increase in sales prices

for individual paintings at Sotheby’s in 2009. Additionally, Sotheby’s Form 10K

filed with the Securities and Exchange Commission for the relevant period

contradicted Wachter’s assertion.

      4.     The Tax Court did not err in rejecting Wachter’s opinion in part because

he did not support his valuations with comparable sales data. Wachter downplayed

the importance of comparables in assessing value and failed to include any in his


                                         3
expert report. He testified that when he arrived at his valuations, he was not

interested in comparables.    At trial, Wachter indicated that he had reviewed

comparables only after the IRS challenged his methodology.1

      5.     The Tax Court did not err in largely accepting Dr. Cardile’s valuations.

Dr. Cardile explained his methodology, reliance on comparables, and research about

the paintings’ conditions. Moreover, the Tax Court did not wholly accept Dr.

Cardile’s valuations, instead applying discounts for both paintings based on the

evidence. See Estate of O’Connell v. Comm’r, 640 F.2d 249, 253 (9th Cir. 1981)

(finding that “the Tax Court did not commit reversible error” in choosing a valuation

“within the range supported by the evidence”). In its valuation, the Tax Court

thoroughly considered the evidence, and its valuation plausibly flowed from the

record.

     6.      We lack jurisdiction to reduce the amount of interest owed on the

deficiency. Interest on a tax deficiency is mandated by statute, 26 U.S.C. § 6601(a),

and may not be reduced by the Tax Court. Comm’r v. McCoy, 484 U.S. 3, 7 (1987).

We only have jurisdiction to review the decisions of the Tax Court. 26 U.S.C. §


      1
             To the extent the Estate frames the issue as arising under Federal Rule
of Evidence 703, its argument fails. “Rule 703 permits the admission of otherwise
inadmissible evidence upon which an expert properly relies for the purpose of
explaining the basis of the expert’s opinion.” Hudspeth v. Comm’r, 914 F.2d 1207,
1215 (9th Cir. 1990) (citation omitted). There is no showing that the Tax Court
found Wachter’s reference to comparables inadmissible. Instead, the court
concluded that Wachter did not rely on comparables in the first instance.

                                         4
7482(a)(1). We are “not empowered to proceed further to decide other questions

relating to interest and penalty—questions that were not presented, and could not

possibly have been presented, to the Tax Court—or to grant relief that the Tax Court

itself had no jurisdiction to provide.” McCoy, 484 U.S. at 6–7 (holding that appellate

court lacked jurisdiction to forgive interest on a tax deficiency).

      AFFIRMED.




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