Estate of James R. Tobias, Deceased, V. Pauline Tobias, Executrix, and Verna P. Tobias, Surviving Spouse - Page 19




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                  Section 708 governs termination of a partnership for                
             Federal income tax purposes.  Section 708 provides that a                
             partnership shall be considered terminated only if:  (1) No              
             part of any business, financial operation, or venture of                 
             the partnership continues to be carried on by any of its                 
             partners in a partnership; or (2) within a 12-month period               
             there is a sale or exchange of 50 percent or more of the                 
             total interest in partnership capital and profits.  See                  
             sec. 708(b)(1).  Section 708 provides that a partnership                 
             "shall be considered as continuing if it is not                          
             terminated."  Sec. 708(a).                                               
                  It is undisputed that after James excluded Darwin from              
             the partnership in 1986, James continued to carry on the                 
             animal farm business until some time after December 31,                  
             1993.  It is also undisputed that neither James nor Darwin               
             sold or exchanged his interest in the partnership.                       
             Therefore, we have no basis to find that either of the                   
             events specified by section 708 took place before 1994,                  
             such that the partnership terminated for Federal tax                     
             purposes before or during the tax years in issue.                        
                  Having disposed of the above preliminary matters, we                
             turn to the principal issue for decision in these cases:                 
             the manner of allocating the partnership's income for the                
             years in issue.  In order to put this issue in context, we               






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