William Lenihan - Page 14

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          petitioner’s cost bases in those assets.  In Waterman v.                    
          Commissioner, T.C. Memo. 1990-497, the Commissioner had issued              
          separate notices of deficiency to a husband and a wife (both                
          nonfilers) making adjustments for, among other things, their                
          failures to report gains on their disposition of a jointly owned            
          inventory of paintings held primarily for sale to customers in              
          the ordinary course of the husband’s trade or business as an art            
          dealer.  We found that their disposition amounted to a sale for             
          $250,000, but we concluded that the record lacked any credible              
          evidence of their joint basis in the paintings.  The                        
          Commissioner’s adjustment was predicated on his claim that their            
          joint gain was $250,000, because their joint basis was zero.                
          While denying that they realized any gain, the taxpayers asserted           
          that their joint basis was $100,000.  We stated:  “In the absence           
          of evidence upon which to make a finding of fact or a reasonable            
          estimate of petitioners’ basis, we must hold against the parties            
          bearing the burden of proof on that issue.”  Inasmuch as the wife           
          bore the burden of proof in her case, we sustained the                      
          Commissioner’s claims that the couple’s joint basis in the                  
          paintings was zero and their joint gain was $250,000.  We further           
          held that she had to include in gross income her share of that              
          gain.  In the husband’s case, however, the Commissioner bore the            
          burden of proof because, in the amended answer, he had changed              
          the year in which he argued the disposition of the paintings had            






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