Glenn H. and Diane J. Flood - Page 18




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          unless there are specific provisions for nonrecognition.                    
               Respondent determined that petitioners understated their               
          capital gain from the sale of Glenwood by $10,635.  The increased           
          capital gain results, in part, from respondent’s characterizing a           
          $29,788.59 check from Glenwood to petitioner as a distribution              
          which reduced petitioner’s basis in Glenwood to zero.  The issue            
          before us is purely factual.                                                
               Petitioners argue that the $29,788.59 was a distribution to            
          Hammontree from Glenwood and, in turn, a payment to petitioner in           
          exchange for Hammontree’s acquisition of a 50-percent interest in           
          Glenwood from petitioner.  We agree with petitioner.  In 1988               
          petitioner and Hammontree agreed that Hammontree would use funds            
          from a retirement account to become a 50-percent partner in                 
          Glenwood.  However, Hammontree was unable to draw from the                  
          account.  Thereafter, it was understood that Hammontree would run           
          the business and take a salary and that petitioner’s one-half               
          interest in Glenwood would be paid for from Hammontree’s profit             
          and/or salary from the partnership.  Glenwood’s Federal income              
          tax returns for 1988 and short year 1989 reflect a 50-50                    
          partnership.  Early in 1989, however, Glenwood was incorporated,            
          the partnership was discontinued, petitioner and Hammontree                 
          became equal shareholders, and petitioner had not been paid for             










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