Estate of Melvin W. Ballantyne, Deceased, Jean S. Ballantyne, Independent Executrix, and Jean S. Ballantyne - Page 37




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          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 was                  





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