- 37 - III. Distributions in Excess of Basis Respondent argues that, to the extent that the grain sales proceeds and other money Russell received from BBP in 1994 exceeded his adjusted basis in the partnership, Russell had additional taxable income. Russell maintains that he possessed sufficient basis to withdraw the cash from the grain sales without incurring any additional tax liability. As a preliminary matter, we must determine which party bears the burden of proof on this issue. Russell argues that the notice of deficiency containing the adjustment for grain income did not raise the issue of withdrawal in excess of basis as a theory for increasing Russell’s gross income by $751,988. Russell maintains that this alternate theory was not tried by the implied consent of the parties. In the event the issue was tried by the implied consent of the parties, Russell contends that resolution of the issue requires the presentation of evidence that is different from that which would be necessary to resolve the proper reporting of grain sales income as between the estate and Russell. Respondent recognizes that this issue was not expressly raised in the notice of deficiency. On brief, respondent states: Although not expressly set forth in the notice of deficiency, this argument is an additional ground for the $751,988.29 adjustment to Russell Ballantyne’s taxable income in 1994. It was addressed by both respondent and Russell Ballantyne in the parties’ trial memoranda and evidence applicable to the argument wasPage: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
Last modified: May 25, 2011