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agreement and the Pecaris partnership agreement to provide for a
part sale of the Mall to Coastal and a special allocation that
would have been consistent with the position he took on his own
income tax return and that he now takes in this case.
We denied respondent's motion at the calendar call, "without
prejudice to renew in the brief after we've had a trial".
Respondent's brief in answer, after observing that "At this
juncture, the motion in limine to preclude the introduction of
evidence is moot", went on, without disavowing respondent's
position on the motion, in effect to broaden her position to
encompass the Pecaris partnership agreement:
After further reflection, and as noted by the
Court (Motion Hearing Tr. 9) during the oral
presentation of respondent's motion, it may well be
that respondent imprecisely placed the focus of her
motion on the wrong agreement.
The record is clear that the purchase/sale
Agreement, bolstered by the additional written
instruments memorializing and consummating the sale
of the Mall are entirely consistent with the manner in
which Pecaris reported the transaction. Additionally,
this consistency continues through the allocation of
the gain from the transaction per the written Pecaris
partnership agreement.14 (Ex. D (par. 4.)) As
suggested by the Court, this partnership agreement
may be the critical "agreement" which petitioner is
attempting to modify.
14Per the written partnership agreement,
petitioner was entitled to share in one-fourth (25%)
of the profits and losses of the Pecaris partnership
enterprise.
The Court of Appeals for the Sixth Circuit has adopted the
Danielson rule, North Am. Rayon Corp. v. Commissioner, 12 F.3d
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