Estate of Emerson Winkler, Deceased, Thomas Winkler and Darrell S. Winkler, Co-Executors, et al. - Page 26

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             704(e), each member of the Winkler family shall be                        
             recognized as a partner if he or she owns a capital                       
             interest in the enterprise.  Sec. 704(e)(1).                              
                  Section 1.704-1(e)(2), Income Tax Regs., sets forth                  
             basic tests to determine "ownership".  These tests are                    
             designed to determine "Whether an alleged partner who is a                
             donee of a capital interest in a partnership is the real                  
             owner of such capital interest, and whether the donee has                 
             dominion and control over such interest".  Id.  For this                  
             purpose, a capital "interest purchased by one member of a                 
             family from another shall be considered to be created by                  
             gift from the seller, and the fair market value of the                    
             purchased interest shall be considered to be donated                      
             capital."  Sec. 704(e)(3).  The basic tests fall into five                
             categories:  Retained controls by the transferor of the                   
             partnership interest, indirect controls by the transferor,                
             participation in management, income distributions, and                    
             conduct of partnership business.  Cirelli v. Commissioner,                
             82 T.C. 335, 345 (1984); sec. 1.704-1(e)(2), Income Tax                   
             Regs.  Whether a person "owns" a capital interest in a                    
             partnership is a mixed factual and legal issue to be                      
             determined from the totality of the circumstances.                        
             Pflugradt v. United States, 310 F.2d 412, 416 (7th Cir.                   
             1962); Reynolds, T.C. Memo. 1987-261.                                     





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