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to include 50 percent of the income of the partnership
is inconsistent with respondent's position that all
partnership income should be allocated to James.
The memorandum in support of respondent's cross-motion
for summary judgment states: "If and to the extent the
respondent's motion is granted, the respondent will
stipulate to a decision reducing Darwin's income
accordingly."
The estate makes three arguments in opposition to the
cross-motions for summary judgment filed by Darwin and
respondent and in support of its position that respondent
erred by allocating to James all of the partnership income
for the years in issue. First, the estate reiterates its
position that the income of the partnership for the years
in question must be allocated in accordance with the
"partner's interest in the partnership." According to the
estate: "The state court expressly found in considering
all relevant facts and circumstances that both James and
Darwin owned a 50 percent partnership interest in the
business." On that basis, the estate contends that the
income of the partnership should be allocated to the
partners equally.
Second, the estate argues, in the alternative, that
such a 50-50 income allocation has substantial economic
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