- 15 -
OPINION
I. Number of Shares
The number of shares of Johnco stock includable in
decedent's estate depends upon the number of such shares
bequeathed to Andrew in the unified credit bequest of John's
will, because as the beneficiary of the residuary of John’s
estate, decedent inherited whatever Johnco shares held by John at
death were not specifically bequeathed to Andrew. Petitioner
took the position on the estate tax return that 79,730 shares
were includable in decedent's estate. Respondent determined in
the notice of deficiency that the correct number is 80,485. In
the petition, petitioner did not assign error to this aspect of
respondent's determination and now contends that 80,485 is the
correct number. Respondent, however, in his answer avers that
the correct number is in dispute and contended at trial and on
brief that the correct number is 81,251.9
9 The parties address only obliquely what the consequences
are for the allocation of the burden of proof occasioned by these
modifications in position. The only clue to petitioner's
position is the following stipulation entered by the parties:
Petitioner asserts * * * that respondent is bound by
the following statement, at page 2, in the notice of
deficiency, "Finally it is determined that the decedent
owned 80,485 shares of Johnco, Inc. common stock.
For his part, respondent on brief expressly disavows a claim to
any increase in the amount of the deficiency initially determined
and seeks to minimize the significance of his change in position
regarding the number of Johnco shares in decedent’s estate.
According to respondent, the determination in the notice that
there were 80,485 shares in decedent’s estate “constitutes
nothing more than a position, subject to a shift based on more
(continued...)
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: May 25, 2011