Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 35

                                                -122-                                                   
            Partnership in exchange for a promissory note of $2,000.  Exh.                              
            915.                                                                                        
                  (v).  FPC Subventure’s Tax Returns                                                    
                  During the years at issue, Kanter and Lisle reported their                            
            distributive shares of FPC Subventure’s partnership items of                                
            income, loss, deduction, and credit.59  Exhs. 125-134 (Kanter);                             

                  59  On June 13, 1994, at the start of the trial in these                              
            cases, respondent filed an amendment to answer seeking increased                            
            deficiencies and additions to tax for fraud.  Included in                                   
            respondent’s amendment to answer were allegations that Lisle was                            
            not entitled to deduct losses related to FPC Subventure                                     
            Partnership because he never made a capital contribution to the                             
            partnership (and, thus he was not a partner in the partnership)                             
            and/or Lisle was not “at risk” within the meaning of sec. 465.                              
            On June 13, 1994, Lisle filed a reply to respondent’s amendment                             
            to answer.  On July 26, 1994, Lisle filed a motion to strike                                
            portions of respondent’s amendment to answer.  Specifically,                                
            Lisle moved to strike the portion of respondent’s amendment to                              
            answer pertaining to FPC Subventure Partnership on the ground the                           
            transaction “does not relate to ‘The Five’ in any way.”  Lisle                              
            further alleged that respondent’s attempt to raise the FPC                                  
            Subventure Partnership issue amounted to an attempt to use the                              
            trial as an ongoing audit.  On July 28, 1994, respondent filed an                           
            objection to petitioners’ motion to strike and alleged that FPC                             
            Subventure Partnership was directly related to The Five as                                  
            demonstrated by Schaffel’s testimony during the first phase of                              
            the trial.                                                                                  
                  On July 28, 1994, the Court heard oral argument regarding                             
            Lisle’s motion to strike.  Transcr. at 3060-3096.  On July 28,                              
            1994, Special Trial Judge Couvillion granted Lisle’s motion to                              
            strike insofar as respondent was seeking increased deficiencies                             
            attributable to FPC Subventure Partnership.                                                 
                  Given that petitioners’ motion to strike was granted, the                             
            FPC Subventure Partnership transactions will not increase the                               
            amounts of Lisle’s tax liabilities for the years remaining at                               
            issue.  Nevertheless, our review of the record reveals that FPC                             
            Subventure Partnership is highly relevant to respondent’s theory                            
            that Kanter, Ballard, and Lisle earned the payments remitted by                             
                                                                          (continued...)                




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