Michael H. Gulley and Paula M. Gulley - Page 16




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          petitioner, and its losses after July 11, 1991, are allocated to               
          the bankruptcy estate because petitioner’s filing of the petition              
          in bankruptcy (and the bankruptcy estate’s succession to                       
          ownership of his interest in GSD) caused a change in ownership of              
          that interest.  We disagree.                                                   
               Petitioners point out that in Smith v. Commissioner, supra,               
          the Commissioner disallowed a pro rata portion of losses from                  
          real estate rentals; i.e., allowed the losses to the taxpayer for              
          the part of the year before he filed in bankruptcy.  Petitioners               
          apparently contend that the Commissioner followed the same                     
          procedure for the taxpayers’ partnership losses; however, the                  
          opinion in Smith makes clear that the taxpayers failed to prove                
          the amount of partnership losses or that they were incurred                    
          before the taxpayers filed in bankruptcy.  Thus, Smith is silent               
          on the point for which petitioners cite it here.                               
               Income, gain, loss, deduction, and credit of a partnership                
          are treated as if received by the partner on the last day of the               
          partnership’s tax year.  See sec. 706(a).  Thus, if a partner                  
          commences a bankruptcy case before the last day of the partner’s               
          tax year and the bankruptcy estate holds the partnership interest              
          on the last day of that year, then that partner’s share of any                 
          income, gain, loss, deduction, or credit of the partnership is                 
          treated as earned by the bankruptcy estate.                                    
               The bankruptcy estate succeeded to petitioner’s interest in               






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