Southern Boiler Sales & Service, Inc. - Page 14

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          Commissioner, 87 T.C. 389, 400 (1986).  The highest and best use            
          is the "reasonable and probable use that supports the highest               
          present value".  Symington v. Commissioner, 87 T.C. 892, 897                
          (1986).  The fair market value is not affected by whether the               
          property is put to its highest and best use; the realistic,                 
          objective potential uses control its valuation.  Stanley Works &            
          Subsidiaries v. Commissioner, supra.  If existing zoning                    
          restrictions preclude a more profitable use, ordinarily such use            
          should not be considered.  United States v. Meadow Brook Club,              
          259 F.2d 41, 45 (2d Cir. 1958).  If the possibility of a zoning             
          reclassification is a reasonable one, however, this is an element           
          that can be taken into account.  Id.; Frazee v. Commissioner, 98            
          T.C. 554, 564 (1992).                                                       
               Petitioner's position is that the amounts of $15,500 and               
          $14,979 deducted as rental expenses on its 1989 and 1990 returns,           
          respectively, were reasonable.6  Respondent asserts through her             
          amended answer that the fair market rental value of the property            
          was $8,300 per year, that petitioner's rental deductions should             
          be limited to this value, and that respondent is entitled to                
          increased deficiencies and additions (penalties).7                          

          6  Presumably petitioner concedes the $11,690 in rent                       
          deducted on the return filed as No. 2.  See supra notes 1, 3.               
          7  Petitioner, in its brief, has questioned whether the                     
          Court should have allowed respondent to amend her answer to                 
          conform to the proof after the conclusion of the trial.                     
          Petitioner can claim no surprise or prejudice.  The fair market             
          rental value of the property has always been at issue, respondent           
                                                             (continued...)           



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