- 18 -18 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...)Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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