Estate of James R. Tobias, Deceased, V. Pauline Tobias, Executrix, and Verna P. Tobias, Surviving Spouse - Page 13




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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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