-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.Page: Previous 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 Next
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