- 17 - 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).Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011