Concurring:

I concur. I write separately to highlight the inconsistency of the Tax Court opinion which should be addressed on remand.

The final Tax Court order denying the Estate’s second motion for reconsideration stated:

The Tax Court also stated, “The experts herein set the appropriate range from which we determined the applicable discounts.”

The combined discount proposed by the estate’s expert was 61.5% and the combined discount proposed by the Commissioner’s expert was 46.2%. The combined discount of the Tax Court was 35% and, obviously, not within the range of the experts as it had said was required.

It appears that the Tax Court set its combined discount of 35% within the range of what the experts had said was appropriate for a marketability discount alone. (Hanan 30%, Weiksner 45%). 1 In its order denying reconsideration the calculation of its combined discount was not within the range of the evidence provided by the experts’ testimony.

Both experts stated that discounts for both minority interest and for lack of marketability were appropriate. The minority discount is for lack of control of the corporation. The marketability discount is for the fact that the corporation is not publicly traded and thus it is more difficult to sell the shares. A publicly traded corporation already reflects a minority discount in the share valuation because the quotations are for minority interests, quite apart from control.

The estate’s expert, Weiksner, started with a valuation assuming control of the corporation. He then applied a 30% minority discount. On that balance he then applied' a 45% marketability discount, which computes to a combined 61.5% discount. 2

The Commissioner’s expert, Hanan, started with a publicly traded valuation and then applied a 30% marketability discount. The publicly traded valuation already reflected a minority discount. He then pointed out that full control would justify a premium of 30%. The reciprocal of this premium as applied to the control valuation would be a 23.1% minority discount. The 23.1% minority discount and the 30% discount would yield a combined discount of 46.2%. 3

*706 As the estate points out, the Tax Court clearly did not follow the range set forth by the two experts, which was a range of either 61.5% or 46.2% for a combined discount.

In its initial opinion the Tax Court was treating its starting point of the $150 million valuation as though it were the publicly traded valuation not the control valuation, which it clearly was because Gillette’s offer was for the whole company. Its 35% discount was within the range of Weiks-ner’s 45% and Hanan’s 30% discount for marketability, but as a combined discount it was not within their combined discount range.

The Tax Court specifically stated that the valuation it reached should be “within the range of figures that properly may be deducted from the evidence” and that the appropriate range was set by the experts. The Tax Court arrived at a combined minority interest and marketability discount that is not within the range of the evidence provided by the expert testimony. Nor is there any explanation of the evidence relied upon to support the combined discount that the Tax Court concluded was appropriate.

. McGraw also testified that 45% marketability discount was appropriate.

. This combined discount is calculated as follows:

100.0% starting point

— 30.0% 30% minority discount

70.0

— 31.5 45% marketability discount (45% x 70)

38.5%

100%- 38.5% = 61.5% combined discount

.This combined discount is calculated as follows:

100.0% starting point

— 23.1 23.1% minority discount

*706 76.9

-23.1 30% marketability discount (30% x 76.9)

53.8%

100% — 53.8% = 46.2% combined discount