C. Examples to Highlight the Issues
The following examples illustrate the issues raised and develop them in a one-step trial setting. Assume unless stated otherwise that the case is before the Tax Court.
Example 10: Assume the same basic fact pattern as assumed above for refund suits (Examples 6 through 9) but in a Tax Court setting. The taxpayer, an estate, reported its estate tax valuing common stock owned by the decedent at $50 per share. The notice of deficiency is based on a value of $100 per share. The sole issue at trial is the per-share value of the common stock. At the close of trial, the evidence establishes that $100 is excessive but does not establish any other value. Indeed, the evidence is so inconclusive that the Court cannot find that the value is at least $50. Who wins? In this circumstance, Helvering v. Taylor awards the victory to the taxpayer, because the deficiency amount is excessive and there is no basis to enter a deficiency decision for the Service. In the refund suit counterpart, discussed in Example 6, the taxpayer would prevail but only to the extent of the tax on one cent per share. Having said that, as Example 6 explains, it is almost impossible to imagine a real-world case in which this state of equipoise between $0.00 and $99.99 would exist.
Example 11: Same facts as in Example 10, except that, at the close of trial, the quality of the evidence is that the $100 might be excessive, but the quality of the evidence is that the Tax Court is not persuaded (50+%) that $100 is excessive. This could occur when the value range is $90 to $100, provided that the evidence is in equipoise within this range and the court is unable to find a value of less than $100. In this circumstance, Helvering v. Taylor awards the victory to the Service. As discussed above in Example 7, in a refund suit, the government wins in this situation because the finding of a range that includes the value as determined by the Service means that the estate has not established that the value determined by the Service is arbitrary and excessive.
Example 12: Same facts as in Example 11, except as varied herein. At trial, the Service introduced expert testimony valuing the stock at $90, and the taxpayer introduced expert testimony valuing the stock at $50, just as originally reported on the estate-tax return. At that point, the evidence shows that the notice of deficiency is excessive. As is typical, the Tax Court is not persuaded that either party’s asserted valuation is correct and proceeds to slice and dice the expert testimony to arrive at a preliminary conclusion based on the evidence introduced that the valuation range for the stock is from $70 to $80. And, after further analysis, the Court is able to zero in on a definite value point within the range—say $75—which it is persuaded is the value. (In effect, the range of equipoise is eliminated.) In this case, of course, the Court has been persuaded, and the burden of persuasion has not affected the outcome. Helvering v. Taylor is irrelevant in this example. The same result is achieved in a refund suit with the same phenomenon—affirmative persuasion.
Example 13: Same facts as in Example 12, except that the Court cannot determine the sweet spot in the $70 to $80 range—i.e., as to any point in that range—because the evidence is in a state of equipoise. Now the burden of persuasion becomes important. Conceptually, if the estate bears the burden of persuasion, equipoise is resolved against the estate, and the Court should find a value of $80 per share. But, if the Service bears the burden of persuasion, equipoise is resolved against the Service, and the Court should find a value of $70 per share. For the reasons noted below in the discussion of Cavallaro III, the Service’s concession should not shift the burden of persuasion to the Service either under Helvering v. Taylor or as new matter. Consequently, the Court should find a value of $80 per share because the taxpayer has not persuaded the court that $80 is excessive, the same result that is obtained in a refund litigation. But, even if a court were persuaded that the Service’s concession did invoke Helvering v. Taylor, thereby shifting the burden of persuasion to the Service, it could still find a value of $70 at the bottom of the range because it is persuaded.
The key in aligning the result before the Tax Court with that in a refund litigation is, of course, based on an interpretation of Helvering v. Taylor that a concession or even a court finding of a value lower than that in the notice of deficiency does not make the value asserted in the notice of deficiency arbitrary and excessive. I return to this issue in discussing Estate of Mitchell and the Cavallaro cases below.
D. Legislative Grace and Burden of Proof
Courts frequently pen the notion, which the Supreme Court has characterized as a “familiar rule,” that “an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer.” Does this notion affect the rule in Helvering v. Taylor?
The effect of a deduction was at issue in Helvering v. Taylor—the issue concerned the proper amount of basis for the stock sold. Because basis reduces the amount realized in determining gain, basis has the effect of a deduction. In Helvering v. Taylor, the Service allowed an amount of basis less than that claimed by the taxpayer and issued a notice of deficiency. The taxpayer showed that the Service allowed too little basis and, thus, that the basis asserted in the notice of deficiency was excessive. Does this suggest that there is some inherent tension between the legislative grace rule and Helvering v. Taylor? Perhaps.
Example 14: The taxpayer claims a deduction for property donated to charity. The taxpayer values the property at $100. The Service issues a notice of deficiency based on a value of $50. The taxpayer petitions the Tax Court. At trial, the Service revises the value to $60, with appropriate expert testimony, thus in effect conceding that the deficiency based on the $50 value was excessive. The taxpayer has expert testimony supporting $80 in value. Assume that the Court determines that the value falls between $70 and $78 but cannot on the basis of persuasion determine a definite value within that range. The taxpayer’s deduction should be $70 because the taxpayer has not established a value exceeding $70, entitling the taxpayer to a higher deduction. Helvering v. Taylor is irrelevant because of the taxpayer’s burden to prove deductions.
E. Some Thoughts on Shifting Burden of Persuasion
1. The Context
In my original article, I discussed three cases that Professor Lederman also discussed in her article. For this update and revision, I discuss only one of those cases, Estate of Mitchell v. Commissioner, and omit the two earlier cases since they do not add materially to this updated Article. I also discuss the subsequent Tax Court decision on remand in Estate of Mitchell and two subsequent cases, Kohler v. United States and the Cavallaro line of cases, that raise analogous issues. These decisions deal with the burden of persuasion when the valuation supporting the notice of deficiency is revised, thus making the notice of deficiency excessive.
Admittedly, this discussion is a bit of a detour from the main point of this Article—the use of the ends of the range of values to determine the value based on the burden of persuasion. That argument, if valid, remains true regardless of whether the taxpayer or the Service bears the burden of persuasion. Shifting the burden of persuasion from the taxpayer to the Service simply shifts the risk nonpersuasion and affects only which end of the range is applied. Still, I think the discussion of these cases echoes some of the issues.
2. Estate of Mitchell v. Commissioner
In Estate of Mitchell v. Commissioner, the Tax Court considered an estate-tax valuation dispute over the stock of a closely held corporation based on competing expert testimony introduced at trial. The value asserted by the Service during the trial was significantly less than the value asserted in the notice of deficiency. The stock at issue had been held by a deceased shareholder owning slightly less than 50% of the stock. An unrelated shareholder owned 50% of the stock, and other unrelated shareholders owned the remaining stock. Ignoring the other unrelated shareholders’ 50+% ownership, the Service valued the decedent’s shares as a controlling interest. Curiously, the Service’s own expert initially had not valued the shares as a controlling interest, but for some unexplained reason, the Service directed the expert to do so and issued the notice of deficiency accordingly. Valuing the less than 50% interest in these circumstances as a controlling interest was simply ill-advised—in the language of Helvering v. Taylor, the resulting valuation was arbitrary and excessive. The Tax Court nevertheless held that the taxpayer still bore the burden of persuasion, but concluded that the taxpayer had satisfied the burden of persuasion. Consequently, the assignment of the burden of persuasion was irrelevant as the Tax Court explicitly noted.
On appeal, the Ninth Circuit (1) found that the circumstances of Helvering v. Taylor were present, meaning that the Service bore the burden of persuasion as to an amount justifying a decision in its favor and (2) although recognizing that the assignment of the burden of persuasion was irrelevant if the Tax Court properly determined value on the basis of the evidence, found fault with the Tax Court’s determination of a 35% discount because it felt the Tax Court had not adequately explained the discount. Accordingly, without such an explanation, the Ninth Circuit panel concluded that it could not meaningfully review the valuation determined by the Tax Court and remanded for the Tax Court to explain its decision so that the Ninth Circuit could review it on appeal.
On remand, after analyzing the evidence and stating the basis for its conclusion, the Tax Court reaffirmed its 35% discount previously determined. As an affirmative finding based on persuasion, this time with explanation, the assignment of the burden of persuasion did not matter, but the Court was careful to say that it recognized that the burden of persuasion was on the Service rather than the taxpayer.
3. Kohler v. United States
In Kohler v. United States, a tax refund suit, the parties fought over a valuation issue. The government’s valuation proffered at trial—$19.5 million—was simplistic and clearly excessive, at least according to Judge Posner writing for the panel in his inimitable fashion of bringing pure logic to the task. The taxpayer’s valuation proffered at trial—$11.1 million—was clearly too low. The record offered no persuasive evidence as to a point in between these two erroneous extremes nor did the record indicate whether, if there were a range of equipoise, what that range might have been. In traditional refund suit theory, requiring the taxpayer to show not only that the Service erred but also the amount of the refund to which the taxpayer is entitled, this lacuna should have required a judgment of no refund. Nonetheless, apparently perceiving the government’s erroneous position as more outrageous than the taxpayer’s erroneous position, Judge Posner side-stepped the traditional refund theory by declaring the assessment to be a “naked assessment . . . without any foundation whatsoever.” Where the Service’s valuation is plainly excessive even in a refund suit, the taxpayer has no burden beyond showing that the Service’s claim is excessive. The Service loses. Judge Posner concluded his opinion: “The Service could have justified a more modest estimate yet one well above $11.1 million, but clinging stubbornly to its untenable valuation it suggested no alternative to $19.5 million. It played all or nothing, lost all, so gets nothing.” So, the taxpayer won—even though the taxpayer’s affirmative proof at trial was not persuasive or even credible—simply because the government was more off base than the taxpayer.
But, let us test what Judge Posner said. Let us say that the Service asserted an $18 million valuation in Kohler, with at least some modicum of evidence for that amount. Then, at trial, the trier of fact finds that the taxpayer’s proffered valuation of $11.1 million is too low, that the Service’s proffered valuation of $18 million is too high, that the real valuation is somewhere in between, but that the evidence is so inconclusive that it does not permit the trier of fact to pick the in-between point (or even range) by a preponderance of the evidence. (This is an extreme and highly unlikely example, but assume it for purposes of analysis.) Would or could Judge Posner have applied the naked assessment side-step to shut the Service out? Would not the Service then have prevailed under the standard formulation of the burden of proof in a refund suit—no basis to quantify an amount of refund beyond the amount based on the Service’s reasonable value of $18 million if the evidence does not show that the refund is due? Is not Kohler just a specific adaptation in a litigation context of the adage that “bulls make money, bears make money, pigs get slaughtered?”
Kohler does help in discussing the warp and woof of the burden-of-proof theory in tax cases, but the circumstances will rarely be present in the real world. At a trial on a valuation issue, even if the Service’s original assessment is excessive, the Service is unlikely to rest on an excessive valuation and will propose a reasonable—or at least a somewhat reasonable—valuation in order to maintain credibility before the court. So, in the above example, even if the Service’s original assessment was based on a $19.5 million value, if at trial the Service admitted that the value did not exceed $18 million and offered some basis for $18 million, the court would not reject the Service’s proposed valuation simply because of its admission that the original $19.5 million valuation was excessive. Rather, the $18 million would become the relevant valuation, and the above analysis would apply because, even if wrong, the Service’s position was not arbitrary. In burden-of-proof terms, if $18 million were at the upper end of the range, the taxpayer would bear the risk of nonpersuasion as to any amount less than $18 million. In other words, it appears that the Tax Division’s attorney in Kohler simply botched it and suffered the consequences of irritating Judge Posner in the process.
4. The Cavallaro Saga
a. Introduction. As previously discussed, the key decisions in the Cavallaro saga are Cavallaro I, Cavallaro II, Cavallaro III, and Cavallaro IV. Cavallaro IV is the decision that inspired this updated Article. Because this Article is about valuation, I do not discuss Cavallaro I as it deals with a summons enforcement action. Although the Cavallaro trajectory (II–IV) does not deal specifically with valuation ranges, it does deal with valuation and Helvering v. Taylor in ways that could be applicable in cases involving ranges.
b. Cavallaro II. In Cavallaro II, the Tax Court (Judge Gustafson) held that the parents who owned a corporation that merged with a corporation owned by their children had not received sufficient value in the merged corporation and had thereby made gifts to their children, resulting in a very substantial gift tax. The court also held that the parents had reasonable cause to rely on their tax advisors and thus avoided penalties.
The law is easy to state. If a party (parents here) transfer property to the objects of their bounty (children here) for less than fair consideration, they have transferred value to the children and have thus made a gift to them. The key issue is one of valuation: what was the value of the gift? In Cavallaro II, the Tax Court resolved the value issue on the basis of the burden of proof. In most cases, disputed valuation issues are decided after each side has proffered expert testimony with the Court finding a value somewhere in between. Even when the parties are reasonable in their valuations, the valuations are usually reasonably aggressive with the actual value resting somewhere between. The court found the value the Service claimed because it found that the taxpayers had failed to meet the burden of proof imposed upon them.
The key issue on which the court focused was whether the parents’ corporation or the children’s corporation owned certain valuable technology. The potential for a shift in value from the parents to the children occurred only if the parents’ corporation owned the technology. The parents claimed that, because the children’s corporation owned the technology, the parents did not receive less than they contributed to the merger and, thus, did not make a gift to the children. The parents’ experts assumed that the parent’s corporation did not own the technology. The court found, however, that the parents’ corporation did own the technology, thereby rendering the parents’ expert witness reports irrelevant. All the court then had regarding value was the claim by the Service (which had been reduced from the amount originally asserted in the notice of deficiency), supported by a report from the Service’s expert Mr. Bello. The court found the Bello valuation credible. The court thus felt it had no basis for doing anything other than sustaining the Service’s claim based on the taxpayers’ failure to meet the burden of proof. In sustaining the Service’s position, however, the court did not consider the Cavallaros’ arguments regarding flaws in the Bello report.
The components of the holding with respect to valuation included the following:
(1) The court first held that the taxpayers had the burden of proof even though the Service had substantially reduced its valuation from the amount originally asserted in the notice of deficiency. The court reasoned:
In general, the IRS’s notice of deficiency is presumed correct, “and the petitioner has the burden of proving it to be wrong”. Welch v. Helvering, 290 U.S. 111, 115 (1933); see also Rule 142(a). The Commissioner has conceded that the taxable gifts totaled not $46.1 million (as in the notices of deficiency) but instead $29.6 million (as yielded by Mr. Bello’s analysis). Where the Commissioner has made a partial concession of the determination in the notice of deficiency, the petitioner has the burden to prove that remaining determination wrong.
(2) The court then rejected the argument that the Service’s valuation reduction shifted the burden of proof under Tax Court Rule 142(a)(1) which imposes the burden of proof on the Commissioner “in respect of any new matter.”
(3) The court rejected the argument that the original deficiency notice was arbitrary and without foundation because the Service had “abandoned” the original claim in favor of the reduced one at trial.
(4) In finding that the Cavallaros had failed to meet their burden of proof, the court held:
Petitioners’ criticisms might have greater significance on the next sub-issue—i.e., determining what portion of that value is properly attributable to each of the two companies—but we need not resolve those criticisms or attempt to correct the Commissioner’s figures. It is the Cavallaros who have the burden of proof to show the proper amount of their tax liability, and neither of the expert valuations they provided comports with our fundamental finding that Knight owned the valuable CAM/A LOT technology before its merger with Camelot. We are thus left with the Commissioner’s concession, effectively unrebutted by the party with the burden of proof. The Cavallaros risked their cases on the proposition that Camelot had owned the CAM/A LOT technology (and on a valuation that assumed that proposition), but they failed to prove that proposition (and the evidence showed it to be false). That being so, it would serve no useful purpose to review our agreement or disagreement with each and every aspect of the experts’ opinions. We conclude that Mr. and Mrs. Cavallaro made gifts totaling $29.6 million on December 31, 1995.
(5) The original valuation used in computing the deficiency in the notice of deficiency ($46.1 million) was significantly reduced by the Service’s concession to $29.6 million. That figure represented a 35.7% ($16.5 million) reduction in value. Nevertheless, that reduction did not mean that the notice of deficiency was arbitrary and excessive (as confirmed by the Court of Appeals in Cavallaro III).
c. Cavallaro III. In Cavallaro III, the First Circuit addressed the Cavallaros’ argument that the Tax Court erred in not shifting the burden of proof to the Service. The court started by stating the background proposition that “[a] rebuttable presumption of correctness cloaks an IRS notice of deficiency,” thereby imposing on the taxpayer “the burden of proving by a preponderance of the evidence that the Commissioner’s tax assessment is erroneous.” The court then addressed the Cavallaros’ argument that the Service’s deficiency notice was arbitrary and excessive:
Burden-shifting for an excessive-and-arbitrary deficiency notice is a fairly narrow doctrine. See United States v. Janis, 428 U.S. 433, 441–42 (1976). It involves “a challenge to the deficiency assessment itself on the basis that it bears no factual relationship to the taxpayer’s liability, not a challenge to any proof offered by the Commissioner at trial before the Tax Court.” Where an assessment is shown to be “naked” or utterly without foundation, we remand the case for further action to determine the amount that might lawfully be taxed. See Janis, 428 U.S. at 442 . . . . In this limited circumstance, the presumption of correctness is overcome, and the burden shifts to the Commissioner.
The threshold question, then, is whether the Cavallaros have carried their burden of producing evidence from which it can be concluded that their deficiency assessments utterly lacked rational foundation. The Cavallaros’ challenge falls short of the mark. . . .
Without more, however, the fact that the Commissioner later conceded a portion of the original deficiency does not compel a conclusion that the initial assessments lacked a rational foundation.
The First Circuit distinguished Estate of Mitchell as a case in which the erroneous valuation report supporting the notice of deficiency during the examination was arbitrary and excessive.
In Estate of Mitchell v. [Commissioner], the estate tax deficiency notice rested on a stock valuation that the appraiser had altered according to the Commissioner’s instructions and that the Service’s expert disavowed. The circumstances in the instant case are not analogous.
Thus, a mere reduction in value—and perhaps even a substantial reduction in value as in Cavallaro II—does not alone establish that a Service valuation supporting a notice of deficiency is arbitrary or excessive within the meaning of Helvering v. Taylor.
The court then addressed the taxpayer’s argument that the burden shifted because the Service’s new, albeit reduced, valuation was a “new matter.” The court rejected this argument:
The Commissioner’s subsequent adoption of the Bello report was simply a refinement of that original theory (i.e., a clarification of the extent to which Knight was undervalued). We have previously said that “if a deficiency notice is broadly worded and the Commissioner later advances a theory not inconsistent with that language, the theory does not constitute new matter, and the burden of proof remains with the taxpayer.” The original deficiency notices were more than adequate to put the Cavallaros on notice that the Commissioner was challenging the value of Knight as transferred within the merger. . . . Indeed, the Cavallaros’ Petition for Re-determination makes it clear that they were aware all along that the value of Knight, to the extent that it exceeded the value of the stock they received at the time of the merger, would be integral to determining their tax liability.
For these reasons, the First Circuit held that the burden of proof did not shift to the Service.
Regarding the Tax Court’s determination of the value of the gift, the First Circuit rejected the Cavallaros’ argument that the critical component of value, the valuable technology, was owned by the children’s corporation rather than the parents’ corporation. The court then held that, although the Cavallaros’ expert valuations were fatally flawed because they failed to account for the valuable technology ownership by the parents’ corporation rather than the children’s, the Tax Court had erred in applying the Helvering v. Taylor analysis by declining to consider the Cavallaros’ attack on the Service’s expert report:
The Cavallaros should have had the opportunity to rebut the Bello report and to show that the Commissioner’s assessment was “arbitrary and excessive.” If they succeeded in doing so, the Tax Court should have then determined for itself the correct amount of tax liability rather than simply adopting the Commissioner’s position. See Taylor, 293 U.S. at 515–16 (stating that upon determining the Commissioner’s valuation to be arbitrary, the Board of Tax Appeals should have conducted a “further hearing” in which it “heard evidence to show whether a fair apportionment might be made and, if so, the correct amount of the tax”) . . . .
In accordance with those cases, we remand so that the Tax Court can evaluate the Cavallaros’ arguments that the Bello valuation had methodological flaws that made it arbitrary and excessive. If the Tax Court determines that the Commissioner’s assessment was arbitrary, then it must determine the proper amount of tax liability for itself. “The court need not, in making this determination, be able to precisely establish the correct figures; reasonable approximations may be employed, provided the findings disclose the method used in calculating the deficiency.” Miller v. United States, 296 F.2d 457, 460 (7th Cir. 1961). The court is free to accept in whole or in part, or reject entirely, the expert opinions presented by the parties on the subject. . . . Further, the court may take new evidence, including a new expert valuation.
In other words, based on the record, the Cavallaros should have been allowed to show that the Bello valuation was flawed in some respects. The Tax Court just did not consider the Cavallaros’ arguments and, thus, had not considered whether the Bello valuation (which was the new target for the Helvering v. Taylor analysis) was itself arbitrary and excessive, so that adjustments could be made accordingly.
d. Cavallaro IV. The Tax Court (Judge Gustafson) summarized its job on remand in the following manner: “The question before us on this remand is whether the Commissioner’s expert’s valuation is ‘arbitrary and excessive.’ If it is, then we are tasked with determining the proper amounts of the Cavallaros’ tax liabilities.” As articulated, the scope of the remand was fairly limited. For its factual consideration, the Court assumed familiarity with the facts from Cavallaro II and III.
Addressing value, the court focused on the Service’s expert valuation, the Bello valuation, that the Tax Court had accepted in Cavallaro II in order to consider, as directed by the First Circuit, the Cavallaros’ claims of error in the Bello valuation. The court first rejected the Cavallaros’ argument that the Bello report should be rejected in its entirety because Mr. Bello was biased. The Court found Mr. Bello credible, with any errors the result of mistakes and not bias.
Moving to the Cavallaros’ claims of specific errors in the implementation of Mr. Bello’s valuation methodology, the court rejected all of the claims except one, the so-called “90th percentile profit margin calculation.” A detailed review of the error asserted is not important for this discussion, but in general the court found that Mr. Bello erred in certain assumptions and that, when those assumptions were corrected and revised calculations made pursuant to his methodology, the value of the disguised gift should have been reduced by $6.9 million, resulting in total gifts from the parents of $22.8 million. The court rejected the Cavallaros’ argument that the error was “deceptive” and rendered the balance of the valuation methodology suspect. According to the court, the valuation, as adjusted, was persuasive, without any alternative more persuasive as to a lesser value. The court summarized:
This one error does not make us unable to use Mr. Bello’s valuation, and it does not require a new trial or necessitate receiving additional evidence. Rather, we “accept . . . in part . . . the expert opinion [] presented by . . . [the Commissioner] on the subject.” Cavallaro III, 842 F.3d at 27. On the basis of the trial record, the Cavallaros’ identification of the error and proposal of a correction, and the Commissioner’s acceptance of the Cavallaros’ calculation, we are able to correct for this error and determine the proper amount of the Cavallaros’ gift. The parties agree that if Mr. Bello had used the correct 90th percentile figure, 9.66% rather than the 7.5% incorrect value, the value of the disguised gifts would be reduced from approximately $29.7 million to $22.8 million, a difference of about $6.9 million. We conclude that the $22.8 million value is the correct value of the disguised gifts made by the Cavallaros to their sons.
The final determined value of $22.8 million was less than 50% of the original valuation in the notice of deficiency. And yet that drastic reduction, most of which resulted from the Service’s concession in Cavallaro II, did not mean that the original valuation and resulting notice of deficiency was arbitrary and excessive for purposes of Helvering v. Taylor.
e. Summary of the Cavallaro Saga. One issue discussed in the Cavallaro decisions is whether a reduction in value from that in the notice of deficiency by the Service at trial invokes the Helvering v. Taylor requirement that the Service prove the amount of the deficiency. There are statements in decisions that can be read both ways on that issue, but I think that the better position is that in Cavallaro III which held that, barring some egregious circumstances other than mere reduction at trial, the original valuation supporting the notice of deficiency is not arbitrary and excessive within the meaning of Helvering v. Taylor.
Regardless of which party bears the burden of persuasion, the analysis that I argue for here—that the party with the burden of persuasion must bear the risk in the range of equipoise—is still correct. Persuasion is persuasion and not some guesstimate beyond the point of persuasion. A shift of the burden of persuasion to the Service would simply shift the risk in the range of equipoise from the taxpayer to the Service. But that is simply to say that, in using ranges and the burden of persuasion, the Service is subject to the same rules as is the taxpayer.
V. Conclusion
Understanding the interplay of the burden-of-proof rules and ranges in valuations can help the parties and the courts focus more crisply on litigation needs. The parties at trial should pay more attention to ranges and, unless an obvious persuasive definite valuation presents itself (not often, at least initially), conform their trial strategies to achieve the best ranges. A court must carefully analyze the evidence to determine the appropriate range and to constrict the range to the extent the evidence permits. Careful analysis may not only identify a preliminary appropriate range but also further assist the court in finding the “sweet spot” with the requisite degree of persuasion. Such an approach will permit the trial court to articulate the basis for its finding so that an appeals court can meaningfully review its decision. And, if the trial court’s decision is overturned because of a misallocation of the burden of proof, a finding of value in terms of a range will provide the result on appeal without the need for a remand.