Timothy J. Burke - Page 6

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          that the partners were entitled to only 50 percent of the                   
          partnership’s profits each and were not entitled to any amounts             
          based on the new agreement.  On October 16, 2002, the jury found            
          for petitioner “with regard to the partnership between January 1,           
          1996 through December 31, 1998"; i.e., the income of the                    
          partnership should be allocated according to the new agreement.             
          Although petitioner received a favorable jury verdict, as of the            
          time of the submission of the parties’ moving papers in the                 
          instant case, the partnership receipts remained in escrow pending           
          the Massachusetts Superior Court’s decision on petitioner’s                 
          motion for an accounting.                                                   
               Respondent determined a $41,338 deficiency based on the                
          $121,000 reported to petitioner on his Schedule K-1 and mailed              
          petitioner a notice of deficiency on May 14, 2004.  Petitioner              
          timely petitioned this Court.  After petitioner provided                    
          respondent an income analysis of the partnership’s income for               
          1998 during discovery, respondent increased the deficiency to               
          $53,077.  Using the income analysis petitioner provided,                    
          respondent determined petitioner’s distributive share under the             
          new agreement was $151,682.                                                 




               2(...continued)                                                        
          stolen by Mr. Cohen.  Respondent deducted the stolen deposits               
          from the calculation of the increased deficiency.                           





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