David W. Chiu - Page 17

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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%                      

            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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