Estate of James R. Tobias, Deceased, V. Pauline Tobias, Executrix, and Verna P. Tobias, Surviving Spouse - Page 2




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                                 MEMORANDUM OPINION                                   
                  WHALEN, Judge:  These consolidated cases are before                 
             the Court to decide the motion for summary judgment filed                
             by the Estate of James R. Tobias and Ms. V. Pauline Tobias,              
             the cross-motion for summary judgment filed by Mr. Darwin                
             R. Tobias, Sr., and Ms. Shirley I. Tobias, and the cross-                
             motion for summary judgment filed by respondent.  The                    
             principal issues for decision in these cases involve the                 
             allocation of income pursuant to section 704 from an animal              
             farm business.  All section references in this opinion are               
             to the Internal Revenue Code as in effect during the years               
             in issue, unless specified otherwise.  Respondent's                      
             determinations have the effect of allocating all of the                  
             income from the business for the years 1991 and 1993 to                  
             Mr. James R. Tobias and allocating 50 percent of the income              
             from the same business for the years 1990, 1991, and 1993                
             to Mr. Darwin R. Tobias.                                                 

             Background                                                               
                  The two cases consolidated herein involve petitions                 
             filed by or on behalf of two brothers and their wives.  The              
             first brother, Mr. James R. Tobias, died on September 8,                 
             1996.  In this opinion, he is sometimes referred to as the               
             decedent or James.  His wife, Ms. V. Pauline Tobias, was                 
             appointed executrix of his estate.  She resided in Halifax,              





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