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distributive share delayed inclusion until a later year when the
funds were actually received).
On the basis of the foregoing, we conclude that petitioner
is taxable on his distributive share of partnership income for
1998 which includes the amounts in dispute between petitioner and
his former partner even though undistributed to petitioner.
Accordingly, respondent is entitled to summary judgment on the
issue of whether petitioner must include the disputed amounts in
his distributive share of partnership income for the 1998 taxable
year, and petitioner’s motion for partial summary judgment will
be denied.
2. Whether Respondent Properly Calculated Petitioner’s
Distributive Share
Under Rule 142(a)(1), respondent bears the burden of proving
an increased deficiency. Respondent’s determination is based on
petitioner’s income analysis of the 1998 taxable year and the
Massachusetts State court jury’s finding in petitioner’s favor.
Petitioner acknowledges that he prepared his income analysis
and that the jury found in his favor that the partners’
distributive shares should be allocated according to the new
agreement. In his response to respondent’s motion for summary
judgment, however, petitioner does not state that respondent
incorrectly calculated his distributive share on the basis of the
income analysis and the new agreement, nor does his affidavit
create a genuine issue of fact in that regard. Instead,
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