Barry H. and Marilyn S. Scheiner - Page 19

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                With respect to petitioner's argument that she qualifies                     
          under section 1.469-5T(a)(4), Temporary Income Tax Regs., supra,                   
          respondent contends that petitioner failed to raise this argument                  
          in a timely fashion.  Respondent argues that because no discovery                  
          was conducted with respect to petitioner's participation in her                    
          accounting partnership, undue prejudice would result were we to                    
          consider this issue.  Respondent also maintains that, even if the                  
          Court considers petitioner's argument, petitioner has failed to                    
          adequately substantiate the requisite hours in the condominium                     
          hotel activity and in the accounting partnership activity.                         
                It is well settled that we will not consider issues raised                   
          by parties when undue surprise and prejudice would result.                         
          Seligman v. Commissioner, 84 T.C. 191, 198 (1985), affd. 796 F.2d                  
          116 (5th Cir. 1986).  While petitioner's pre-trial memorandum                      
          broadly argued that her activities constituted material                            
          participation under section 469, petitioner introduced this                        
          particular argument during closing arguments.  We note, however,                   
          that the notice of deficiency characterizes petitioner's                           
          condominium rental activities as "passive activities" under                        
          section 469.  Moreover, respondent's pre-trial memorandum argues                   
          that petitioner failed to meet each of the seven tests contained                   
          in the regulations, including section 1.469-5T(a)(4), Temporary                    
          Income Tax Regs., supra.  Petitioner reported her accounting                       
          partnership activities on her returns, and respondent was well                     
          aware that the only issue in this trial was whether petitioner's                   
          activity constituted material participation in the ownership of                    



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