Estate of James R. Tobias, Deceased, V. Pauline Tobias, Executrix, and Verna P. Tobias, Surviving Spouse - Page 20




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             recall the following statement from our opinion in Vecchio               
             v. Commissioner, 103 T.C. 170, 185-186 (1994):                           

                       In determining his income tax, a partner                       
                  must take into account his "distributive share"                     
                  of each item of partnership income, gain, loss,                     
                  deduction, and credit.  Sec. 702(a).  Each                          
                  partner is taxed on his distributive share of the                   
                  partnership income without regard to whether the                    
                  amount is actually distributed to him.  Sec.                        
                  1.702-1(a), Income Tax Regs.; see also United                       
                  States v. Basye, 410 U.S. 441, 453 (1973).  A                       
                  partner's distributive share of partnership                         
                  income or loss is to be determined by the                           
                  partnership agreement, provided the allocation                      
                  has substantial economic effect.  Sec. 704(a).                      
                  If the partnership agreement does not provide as                    
                  to the partner's distributive share, or if the                      
                  partnership agreement provides for an allocation                    
                  that does not have substantial economic effect,                     
                  then a partner's distributive share is determined                   
                  by the partner's "interest in the partnership".                     
                  Sec. 704(b).  A partner's interest in the                           
                  partnership is determined by taking into account                    
                  all facts and circumstances.  Id.                                   

             As suggested above, section 704 provides the framework for               
             determining a partner's distributive share of partnership                
             income, gain, loss, deductions, or credits and governs the               
             allocation of such partnership items.  It provides as                    
             follows:                                                                 
                       SEC. 704(a).  Effect of Partnership                            
                  Agreement.--A partner's distributive share of                       
                  income, gain, loss, deduction, or credit shall,                     
                  except as otherwise provided in this chapter,                       
                  be determined by the partnership agreement.                         
                       (b) Determination of Distributive Share.--                     
                  A partner's distributive share of income, gain,                     
                  loss, deduction or credit (or item thereof) shall                   





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