Estate of James R. Tobias, Deceased, V. Pauline Tobias, Executrix, and Verna P. Tobias, Surviving Spouse - Page 28




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             estate argues that a "50-50 income allocation is consistent              
             with the requirements of the Internal Revenue Code under                 
             all of the undisputed facts and circumstances of this                    
             case."  We consider the facts and circumstances the estate               
             relies on.                                                               
                  First, the estate argues that the partnership income                
             for the years in issue did not inure to the benefit of                   
             James.  According to the estate, this is shown by the fact               
             that the asset value of the partnership was not increased                
             by the amount of income reported by the partnership, and by              
             the fact that any distribution to James upon liquidation of              
             the partnership would be minimal.  Second, the estate                    
             argues that respondent "is improperly attempting to use a                
             state court decision rendered in 1997 with respect to an                 
             accounting * * * to retrospectively reallocate income for                
             federal income tax purposes for the calendar years 1990                  
             through 1993."                                                           
                  Contrary to the estate's argument, the net asset value              
             of the partnership increased each year by the amount of                  
             partnership income.  In the following schedule, we have                  
             computed the net asset value of the partnership using the                
             balance sheets filed with the partnership returns as                     
             Schedule L, and we have compared the annual increases in                 
             net asset value to the income reported:                                  






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