Timothy J. Burke - Page 12

                                       - 12 -                                         
          therefore, was taxable on his distributive share of the                     
          partnership’s profits for 1998, even though he did not receive              
          it.  See First Mechs. Bank v. Commissioner, 91 F.2d at 279.  It             
          is irrelevant that petitioner still may not know the full extent            
          of the partnership income because of the deposits stolen by his             
          partner, Mr. Cohen; the nonappearance of the deposits on the                
          partnership books is not determinative.  See Stoumen v.                     
          Commissioner, 208 F.2d 903, 908 (3d Cir. 1953) (holding that the            
          taxpayer’s distributive share of partnership income was taxable             
          to him in the year of realization by the partnership, despite the           
          fact that his partner had embezzled funds which did not appear in           
          the partnership books, and despite the fact that the taxpayer was           
          unaware of the existence of the funds and never received any of             
          them), affg. a Memorandum Opinion of this Court.5                           
               Thirdly, a partner is taxable on his distributive share of             
          partnership income when realized by the partnership despite a               
          dispute among the partners as to their respective distributive              
          shares.  In De Cousser v. Commissioner, 16 T.C. 65 (1951), the              
          taxpayer argued that a controversy with his partner rendered the            
          amounts of his distributive share indefinite and impossible to              
          determine and that those amounts were not specifically                      


               5 We recognize that this is a harsh rule, but the harshness            
          is mitigated somewhat by the theft loss deduction allowed under             
          sec. 165(e), which, in pertinent part, provides:  “any loss                 
          arising from theft shall be treated as sustained during the                 
          taxable year in which the taxpayer discovers such loss.”                    




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011