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interest in an amount that we can estimate, under the Cohan rule,
based upon the six checks drawn on petitioner's own account and
the Form 1098 received into evidence. Based upon the record, we
conclude that petitioner has provided adequate proof of mortgage
payments for the 6 months covered by the checks. There is
insufficient proof for the remaining months. Petitioner's
checks, when compared to the total monthly payments listed on
the Form 1098, indicate that he paid varying portions of the
total mortgage payments, ranging from 100 percent to just under
50 percent, as follows:
Payment Total Payment By Petitioner's
Due Date Payment Petitioner Percentage
Feb.1, 1990 $1,894.48 $1,894.48 100%
Apr.1, 1990 1,894.48 1,894.48 100%
May 1, 1990 1,894.48 914.48 48.27%
June 1, 1990 1,894.48 949.48 50.12%
July 1, 1990 2,256.53 1,292.53 57.28%
Aug.1, 1990 2,256.53 1,128.53 50.01%
15(...continued)
into evidence totaling $8,073.98, which he testified represented
payments on his mortgage. Respondent did not object to the
admission of the checks into evidence. Respondent now contends
on brief that the amount of mortgage interest at issue is limited
to the amount claimed in petitioner's trial memorandum.
Under Rule 41(b), issues not raised by the pleadings which
are nonetheless tried by express or implied consent of the
parties shall be treated in all respects as if they had been
raised in the pleadings. The issue as to the amount of the
mortgage interest paid by petitioner was raised at trial upon
petitioner's offer into evidence of six checks totaling $8,073.98
that petitioner testified were payments for his mortgage. The
admission of such checks into evidence, without limitation or
objection by respondent, placed the amount in issue by implied
consent, and we treat the higher amount as if raised in the
pleadings, pursuant to Rule 41(b).
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