- 14 - 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...)Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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