Estate of Ida Abraham, Deceased, Donna M. Cawley, and Diana A. Slater, Administratrixes - Page 15

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          partnerships at the time of her death was $476,666 or $238,333              
          for each partnership.                                                       
               On Schedule F, Other Miscellaneous Property Not Reportable             
          Under Any Other Schedule, of the estate tax return, the estate              
          reported the following miscellaneous property:  (1) RMA FLP, 45             
          percent interest, value at date of death $242,750; (2) DAS FLP,             
          33.3-percent interest, value at date of death $238,333; and (3)             
          DAC FLP, 33.3-percent interest, value at date of death $238,333.            
          In the notice of deficiency, respondent determined that 70                  
          percent of the fair market value of the assets in the RMA FLP20             
          and 100 percent of the fair market value of the assets held in              
          the DAC and DAS FLPs were includable in decedent’s taxable                  
          estate.                                                                     
                                       OPINION                                        
          A.  Burden of Proof                                                         
               Generally, the burden of proof is on the petitioner.  See              
          Rule 142(a).  However, in certain circumstances the burden of               
          proof shifts to the Commissioner.21  For example, a new matter or           
          theory raised by the Commissioner can cause the burden to shift             


               20On brief, respondent explains:                                       
               In determining the includible value, the examiner                      
               erroneously treated Richard’s [Abraham] relinquishment of              
               his right to share in Mrs. Abraham’s estate as consideration           
               for purposes of I.R.C. � 2043, and subtracted it from the              
               $830,000 date of death net asset value of the partnership.             
               21Neither party argued the applicability of sec. 7491.                 




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