S. Byrne Doyle and Barbara S. Doyle - Page 16

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          failure standing alone is not sufficient evidence to sustain                
          petitioners' contention.7  We think it was incumbent on                     
          petitioners to offer either evidence that might affirmatively               
          establish that the partnership agreement in the form attached to            
          the private placement memorandum was not executed (for example,             
          by way of testimony of Mr. Jonell) or some explanation of their             
          failure to provide such evidence.  Wichita Terminal Elevator Co.            
          v. Commissioner, 6 T.C. 1158 (1946), affd. 162 F.2d 513 (10th               
          Cir. 1947).  The fact that this case was submitted fully                    
          stipulated does not relieve petitioners of the usual requirements           
          relating to carrying their burden of proof.  Rule 122(b);                   
          Borchers v. Commissioner, 95 T.C. 82, 91 (1990), affd. 943 F.2d             
          22 (8th Cir. 1991).                                                         
               We think the absence of any such evidence is critical in               
          light of the facts that Mr. Doyle signed the power of attorney              
          for general partner Mr. Jonell to execute the certificate of                
          limited partnership and the partnership agreement, and that Mr.             
          Jonell then actually signed the partnership certificate, which              
          made Mr. Doyle a limited partner.  We think that petitioners                
          should have produced some affirmative evidence to show that Mr.             

               7  We note here that, under Pennsylvania law, whether                  
          petitioners in fact ever received an executed copy of the                   
          agreement is irrelevant: "So long as the parties intend to be               
          bound by the contract, the failure of one party to receive an               
          executed copy of the agreement will not prevent it from becoming            
          operative."  Daniel Adams Associates v. Rimbach Publishing, Inc.,           
          519 A.2d 997, 1005 (Pa. Super. Ct. 1987).                                   





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