M. Bennett Marcus and Maria F. Marcus - Page 18

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          property; she settled for one-third of the net proceeds from the            
          future sale of the property.  If the property increased in value            
          after the death of Fulvio Suvich, Mrs. Marcus would share in the            
          appreciation.  Likewise, if the property decreased in value, Mrs.           
          Marcus would share in its depreciation.  The potential                      
          appreciation or depreciation would not be part of an inheritance,           
          or received in lieu of an inheritance, but simply the effect of             
          market forces.  As in Parker v. United States, supra, Mrs. Marcus           
          must show what her basis in the property would have been had she            
          inherited her share (one-third) of the property.                            
               Respondent determined that petitioners failed to establish             
          Mrs. Marcus' basis in the property and that consequently, the               
          entire $37,898 is taxable.  Where the Commissioner has determined           
          in a statutory notice of deficiency that a taxpayer's basis in              
          property is zero, the taxpayer bears the burden of proving basis            
          for the purpose of calculating gain or loss on the sale of the              
          underlying property.  Rule 142(a); Welch v. Helvering, 290 U.S.             
          111 (1933); Counts v. Commissioner, 42 T.C. 755, 760 (1964).                
          That principle applies to this case.  If petitioners cannot                 
          establish what Mrs. Marcus' basis would have been had she                   
          inherited her share of the property, then the entire amount she             
          received in settlement would be taxable.7                                   

          7  Respondent also makes the argument that depreciation, allowed            
          or allowable, would have reduced whatever basis Mrs. Marcus had             
                                                             (continued...)           




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