Saba Partnership, Brunswick Corporation, Tax Matters Partner - Page 5




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          disregarded for Federal income tax purposes.  Petitioner bears              
          the burden of proof.  Rule 142(a); Brown v. Commissioner, 85 T.C.           
          968, 998 (1985), affd. sub nom. Sochin v. Commissioner, 843 F.2d            
          351 (9th Cir. 1988).                                                        
          I.  Partnership Status Under Statutory and Case Law                         
               Petitioner first contends that Saba and Otrabanda qualify as           
          partnerships for Federal income tax purposes consistent with the            
          statutory definitions of partnerships (and partners) set forth in           
          sections 704(e), 761, and 7701(a)(2), and in accordance with                
          Supreme Court decisions in cases such as Commissioner v. Tower,             
          327 U.S. 280 (1946), and Commissioner v. Culbertson, 337 U.S. 733           
          (1949).  Petitioner avers that “a person should be treated as a             
          partner when he or she owns capital in a partnership in which               
          capital is a material income-producing factor, without regard to            
          whether the partnership was formed to avoid tax.”                           
               We need not dwell on this argument because the Court of                
          Appeals did not direct us to evaluate the technical compliance of           
          the partnerships.  Instead, the Court of Appeals directed us to             
          consider whether the partnerships should be recognized at all for           
          Federal income tax purposes consistent with the standards the               
          Court articulated in ASA Investerings Pship. v. Commissioner, 201           
          F.3d 505 (D.C. Cir. 2000), affg. T.C. Memo. 1998-305.  We were              










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