Jimmy D. Morris, Transferee - Page 16




                                               - 16 -                                                  
            an asset or an interest in an asset”.  Fla. Stat. sec.                                     
            726.102(12) (1988) (emphasis added).  As a party to the covenant                           
            not to compete, ACT clearly had an interest in the proceeds                                
            therefrom, which the parties have stipulated were part of the                              
            total purchase price paid for ACT’s assets.  Petitioner has not                            
            established that ACT had no interest in the entire $330,400                                
            partial payment it received from JSL, or that its transfer to                              
            petitioner of a one-fourth share of these proceeds did not                                 
            constitute a transfer from ACT within the meaning of the UFTA.                             
            Whether the Full Amount of ACT’s Deficiency Has Been Paid                                  
                 On brief, petitioner argues for the first time that he                                
            should not be liable for ACT’s deficiency because it has already                           
            been discharged by other transferees.  Generally, we will not                              
            consider positions raised for the first time on brief if to do so                          
            would prejudice the opposing party.  See Leahy v. Commissioner,                            
            87 T.C. 56, 64-65 (1986).  In the instant circumstances, however,                          
            we believe it is appropriate to address petitioner’s argument.                             
                 As a general principle, the Commissioner can collect the                              
            transferor’s tax liability only once; where it is shown that the                           
            full amount of the deficiency has been paid, the liability of the                          
            transferee is extinguished.  See Holmes v. Commissioner, 47 T.C.                           
            622, 627 (1967); Quirk v. Commissioner, 15 T.C. 709 (1950), affd.                          
            per curiam 196 F.2d 1022 (5th Cir. 1952).  Once the Commissioner                           
            has met his burden of proof under section 6902(a) and established                          






Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  Next

Last modified: May 25, 2011