Poison Creek Ranches #1, Ltd., Poison Creek Ranches #2, Ltd., Poison Creek Ranches #3, Ltd., Poison Creek Ranches #4, Ltd., Walter J. Hoyt, III, Tax Matters Partner, et al. - Page 25

                                       - 25 -                                         

          interpretation of the agreement supports his contention that the            
          partnership items should be allocated to a limited number of                
          partners.                                                                   
               First, petitioner asserts, on brief, that the tax matters              
          partner believed that pursuant to the Code provisions, partners             
          who settled on an individual basis should be excluded from                  
          allocations to be determined under the agreement because such               
          partners are no longer parties to this action.                              
               Respondent argues that even assuming that the tax matters              
          partner believed the calculations under the agreement would be              
          made by applying its provisions only to the partners who are                
          parties to this action, such belief is a mistake of law, and thus           
          it does not preclude enforcement of the agreement.                          
               Assertions made in briefs do not constitute evidence.  Rule            
          143(b).  There is no evidence on the record to support                      
          petitioner's assertion as to the belief of the tax matters                  
          partner at the time the agreement was made.  Further, we agree              
          with respondent that the tax matters partner's asserted belief is           
          mistaken, and, whether the mistake is of fact or law, it is not             
          grounds for rescinding an agreement under section 6224.  Korff v.           
          Commissioner, T.C. Memo. 1993-33.  Therefore, the agreement is              
          enforceable.                                                                
               In the alternative, petitioner argues that by its terms the            
          agreement does not apply to partners who have settled with the              





Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011