Whitman & Ransom, Maged F. Riad, Tax Matters Partner - Page 11

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          Handler’s claim that he was not a partner in W&R during 1996 is a           
          partnership item because it could affect the allocation of                  
          partnership items to the other partners.  Blonien v.                        
          Commissioner, 118 T.C. 541, 551 (2002).                                     
               Petitioner bears the burden of establishing that payments in           
          liquidation of the withdrawing partners’ interest in W&R were               
          paid or incurred in 1996 which resulted in deductible guaranteed            
          payments.  See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115           
          (1933); I-Tech R&D Ltd. Pship. v. Commissioner, T.C. Memo. 2001-            
          10, affd. sub nom. Lewin v. Commissioner, 335 F.3d 345 (4th Cir.            
          2003).7  The burden of proof, or the effect of failure of proof,            
          does not change because the case is submitted under Rule 122.               
          See Rule 122(b); Borchers v. Commissioner, 95 T.C. 82, 91 (1990),           
          affd. 943 F.2d 22 (8th Cir. 1991).                                          
               Petitioner claims the allocation of income to zero out the             
          negative capital accounts of the withdrawing partners resulted in           
          guaranteed payments which are deductible by the partnership                 
          pursuant to section 736(a)(2).  Respondent claims that the                  
          allocation of income could not result in guaranteed payments                
          because there was no proof that payment had been incurred or paid           
          in 1996, or that, if payments had been incurred or paid, they               
          were deductible as ordinary or necessary expenses pursuant to               


               7 Petitioner and Handler do not argue that sec. 7491(a)                
          applies to shift the burden of proof to respondent.                         





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