Zinovy Brodsky - Page 49




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               The gain from the sale or other disposition of property is              
          the excess of the amount realized over the adjusted basis of the             
          property provided in section 1011 for determining gain, and the              
          loss is the excess of the adjusted basis provided in that section            
          for determining loss over the amount realized.  Sec. 1001(a).                
          Petitioner must establish his adjusted basis in the Church Street            
          property for purposes of determining the gain or the loss that he            
          realized, and must recognize, on its sale.  O’Neill v. Commis-               
          sioner, 271 F.2d 44, 50 (9th Cir. 1959), affg. T.C. Memo. 1957-              
          193; see Burnet v. Houston, 283 U.S. 223, 227-228 (1931).  As                
          pertinent here, (1) petitioner’s adjusted basis in determining               
          the gain or the loss from the sale of the Church Street property             
          is his basis in that property determined under section 1012,                 
          adjusted as provided in section 1016,88 see sec. 1011(a); and                


               87(...continued)                                                        
          and Ms. Brodsky support that finding.  Petitioner and Ms. Brodsky            
          included Schedule E in each of those returns.  In each such                  
          Schedule E, they reported the Church Street property as rental               
          property.  In the 1991 Schedule E, they claimed rental expenses              
          with respect to that property, in the 1992 Schedule E, they                  
          listed the Church Street property as a rental property, and in               
          the 1992 Schedule D they claimed a capital loss with respect to              
          that property.  We find that the 1991 and 1992 returns contain               
          admissions by petitioner and Ms. Brodsky that one or both of them            
          had an ownership interest in the Church Street property at least             
          during part of 1991 and 1992 until the date of the sale of that              
          property.  Those admissions may not be overcome without cogent               
          evidence that they are wrong.  See FRE 801(d)(2); Waring v.                  
          Commissioner, 412 F.2d 800, 801 (3d Cir. 1969), affg. per curiam             
          T.C. Memo. 1968-126; Estate of Hall v. Commissioner, 92 T.C. 312,            
          337-338 (1989).                                                              
               88With respect to the adjustments to basis under sec. 1016              
          that are required by sec. 1011(a), petitioner testified at the               
                                                              (continued...)           




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