Alice Berger, et al. - Page 59

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          misattribution of deferred income need not detain us.  At the               
          time of the transfer from Howard to Alice on March 14, 1989, less           
          than 2 months remained before the Phase II mausoleum would be               
          completed, and the bulk of the pre-completion deposits was                  
          already in hand.  During all of 1987 and 1988 and for the first             
          10 weeks of 1989, Howard Berger had received draw payments of               
          $500 per week, plus payments of personal expenses, that were                
          primarily financed by those deposits.  No misattribution results            
          from taxing Howard on one-half the income attributable to Phase             
          II mausoleum crypt sales prior to his March 1989 transfer.                  
               It follows that Howard Berger's taxable income from the                
          operations of Woodbine includes not only his one-half share of              
          the operating profits of Woodbine for the period from January 1             
          through March 14, 1989, computed under Woodbine's method of                 
          accounting, but also a portion of the income from the Phase II              
          mausoleum crypt sales.  Howard Berger has not furnished "the                
          cogent proof" that would require us to reduce the $175,142 of net           
          income that he reported from the Woodbine business for this                 
          period in 1989.  See Estate of Hall v. Commissioner, 92 T.C. 312,           
          337-338 (1989); Nestle Holdings, Inc. v. Commissioner, T.C. Memo.           
          1995-441, 70 T.C.M. 683, 707, 1995 RIA TC Memo par. 95,441 at               
          95-2730.  Consequently, we hold him to the initial admission in             
          his 1989 return as to the measure of his Woodbine income,                   
          including his share of the Phase II crypt sale income.13                    

          13The Estate of Howard Berger now takes the position that in                
                                                             (continued...)           



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