
    Harold H. Kuchman and Jennie F. Kuchman, Petitioners, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 29434.
    Promulgated April 30, 1952.
    
      Harry J. BudicJc, Esq., Mason G. Kassel, Esq., and Joyce Stanley, Esq., for the petitioners.
    
      Scott A. Dahlquist, Esq., for the respondent.
   OPINION.

Opper, Judge:

Respondent’s opinion witnesses and petitioner on brief agree that a purchaser could not be found for the stock in question with its contractual restrictions. Although respondent now seeks to rely on the testimony of one of petitioner’s opinion witnesses, this evidence on analysis is obviously a valuation of the stock, not from the standpoint of a purchaser from petitioner, but as of the time and under the circumstances that the underwriters distributed it. Since fair market value is defined as the price at which the property to be valued with all its attributes would change hands between a willing buyer and a willing seller generally, Andrew B. C. Dohrmann, 19 B. T. A. 507, 513, and not as the sale might be limited to one specific purchaser, see Estate of Millie Langley Wright, 43 B. T. A. 551; Heiner v. Crosby (C. A. 3), 24 F. 2d 191, we have concluded that the ascertainment of fair market value cannot be founded on this testimony.

The finding has accordingly been made that the property had no ascertainable fair market value in the hands of petitioner. Under these circumstances acquisition of the stock does not justify charging petitioner in the year of its receipt with income in any amount. Helvering v. Tex-Penn Oil Co., 300 U. S. 481, 577; Propper v. Commissioner (C. A. 2), 89 F. 2d 617; Schuh Trading Co. v. Commissioner (C. A. 7), 95 F. 2d 404; Morris D. Kopple, 35 B. T. A. 1056. Cf. Robert Lehman, 17 T. C. 652.

This disposition of the matter as an issue of fact, see Gould Securities Co. v. United States (C. A. 2), 96 F. 2d 780; Blanchard v. Commissioner (C. A. 3), 184 F. 2d 438, makes unnecessary consideration of the legal questions involved in the issuance of stock to an employee at a price below its fair market value. See Delbert G. Geeseman, 38 B. T. A. 258; Norman G. Nicolson, 13 T. C. 690; Wanda V. Van Dusen, 8 T. C. 388, affd. (C. A. 9) 166 F. 2d 647; cf. Commissioner v. Smith, 324 U. S. 177.

Reviewed by the Court.

Decision will be entered for the-petitioners.

KerN, Van Fossan, Haioion, and Raum, JJ., dissent.  