Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 276

                                                -341-                                                   
            of the trusts’ gross receipts; (2) $295,298 of the trusts’                                  
            interest income; (3) dividend income of $325; (4) passive                                   
            activity partnership losses totaling $261,040; (5) $3,094,058 of                            
            net capital gain income;136 and (6) certain investment interest                             
            expenses.                                                                                   
                                               OPINION                                                  
            A.  Grantor Trust Provisions of Sections 671 Through 678                                    
                  Section 671 provides that if the grantor or another person                            
            is treated as the owner of all or a portion of a trust under                                
            sections 672 through 678, that person must include in income all                            


                  136  The STJ report, at 115 note 49, recommended that                                 
            respondent should not be permitted to argue on brief that                                   
            $2,033,368 of this adjustment represented long-term capital gain                            
            realized by the Bea Ritch Trusts in 1986 (as opposed to 1987)                               
            attributable to investments in Oyster Bay Associates Partnership                            
            (OBA).  We reject the recommendation in the STJ report that                                 
            respondent’s assertion on this point represented a “new matter”                             
            not properly before the Court.  A review of the record reveals                              
            (1) Kanter’s tax liability for 1986 is at issue at docket No.                               
            26251-90, (2) Kanter was not surprised or prejudiced with regard                            
            to the matter because his counsel elicited testimony from                                   
            Gallenberger that the income was recognized in 1986                                         
            (Gallenberger, Transcr. at 4483-4485); (3) respondent promptly                              
            made an oral motion to conform the pleadings to the proof and                               
            respondent’s motion apparently was granted (Transcr. at 4495-                               
            4500), (4) Kanter did not identify any evidence which he was                                
            prevented from introducing as a result of respondent’s motion,                              
            and (5) respondent’s assertion that the item is taxable to Kanter                           
            in 1986 is not inconsistent with the original determination that                            
            the Bea Ritch Trusts were Kanter’s grantor trusts, it did not                               
            require new evidence, and it merely reflected a good-faith error                            
            in the timing of when specific income was earned.  Consistent                               
            with this Court’s holding in Achiro v. Commissioner, 77 T.C. 881,                           
            890 (1981), respondent’s oral motion to amend the pleadings will                            
            be granted, and we decline to shift to respondent the burden of                             
            proof on this point.                                                                        




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