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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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