John W. and Vincentia Schwartz - Page 7

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          and that if disproportionate allocations of items with respect to                  
          any partner are possible under the terms of the agreement, then                    
          the test has not been satisfied.  We held:                                         
                [F]or purposes of determining whether a partnership is a                     
                small partnership and whether the same share rule is                         
                satisfied, the test should be applied by determining whether                 
                the partnership reported more than one partnership item for                  
                the year and, if so, how those items were shared by each                     
                partner.  This determination should be made by respondent as                 
                of the date of commencement of the audit of the partnership                  
                (but not necessarily on that date) by examining the                          
                partnership return and the corresponding Schedules K-1s, and                 
                any amendments thereto received prior to this date.                          
                          *     *     *     *     *     *     *                              
                Because this section serves the limited purpose of                           
                determining to whom to issue a statutory notice or whether                   
                to issue an FPAA, and for the sake of judicial economy, we                   
                will not for these purposes permit a partner or                              
                representative of a partnership or respondent to claim a                     
                result other than that identified in the return and                          
                Schedules K-1s as filed and amended prior to the date of                     
                commencement of the partnership audit.                                       
          Harrell v. Commissioner, 91 T.C. at 246-247; see also Z-Tron                       
          Computer Program v. Commissioner, 91 T.C. 258 (1988).4                             
                In McKnight v. Commissioner, T.C. Memo. 1991-514,                            
          suppplemented by 99 T.C. 180 (1992), affd. 7 F.3d 447 (5th Cir.                    


          4                                                                                  
                We note that although Harrell v. Commissioner, supra, and Z-                 
          tron Computer Program v. Commissioner, supra, hold that one may                    
          not look behind the returns and Schedules K-1 for purposes of the                  
          same share requirement, each opinion provides a detailed                           
          examination of the partnership agreement and its provisions                        
          regarding the partners' distributive share.  Moreover, we                          
          question whether this Court would be able to decide whether a                      
          specific allocation falls within the realm of sec. 704(c) or                       
          "similar principles" without looking to the partnership agreement                  
          or other supporting documents.  See sec. 301.6231(a)(1)-1T(a)(3),                  
          Temporary Proced. & Admin. Regs.                                                   




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