Alice Berger, et al. - Page 68

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          have already been accounted for in respondent's figure of                   
          $75,945.  However, those not so accounted for include:  (1) The             
          income, from whatever Woodbine-associated source, that Howard               
          Berger must accrue or had otherwise included no later than the              
          time of the transfer of his interest to Alice Berger (to be added           
          to basis); (2) the deposit income that Alice must accrue upon the           
          completion of the Phase II mausoleum and her other income from              
          the operation of Woodbine (also to be added to basis); (3)(a) the           
          draw payments and payments of Howard's expenses by Woodbine (to             
          be subtracted from basis) and (b) the similar payments by                   
          Woodbine to or on behalf of Alice (also to be subtracted from               
          basis).15  All these adjustments must be made to the Woodbine               
          basis of $75,945 before we can determine Alice Berger's adjusted            


          15That the adjustments upward for (1) and (2) are                           
          appropriate should be clear from the above discussion.  The same            
          is true for the adjustments downward for (3) and (4).  Neither              
          Howard nor Alice Berger reported any of the draw payments as                
          taxable income, and they were right not to do so.  However, now             
          that we must determine Alice Berger's gain on the sale to the               
          Kunkowskis, the draw payments can no longer be ignored for tax              
          purposes.  We must make the same changes to the basis of Woodbine           
          that we would make to the basis of partnership interests in the             
          hands of the partners.  With respect to (3) and (4), we will have           
          potential windfalls if we don't make the adjustments predicated             
          upon Howard's and Alice's having received distributions from the            
          Woodbine business that were never taxed to them.  Generally,                
          partners don't recognize gain or loss on receipt of cash                    
          distributions from a partnership, sec. 731(a), but a partner's              
          basis in his partnership interest (outside basis) is reduced by             
          the amount of any money distributed by the partnership, secs.               
          705(a)(2), 733, provided the amounts he receives from the                   
          partnership do not exceed his outside basis, sec. 731(a)(1).                
          The same is true here of Howard's and Alice's interests in                  
          Woodbine.                                                                   




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