Woody F. Lemons - Page 56

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                  As to respondent's second reason for disallowing the                
             partnership losses; i.e., that petitioner is not eligible                
             for the $25,000 offset for rental real estate activities,                
             provided by section 469(i), petitioners make two points.                 
             First, they assert that this "is a new theory not raised                 
             in the Notice * * *  is outside the scope of the pleadings               
             * * * [and] was not tried by express or implied consent."                
             Second, they note that on the Forms 8582, Passive Activity               
             Loss Limitations, filed with their 1987 and 1988 returns,                
             both claimed passive activity losses, but neither claimed                
             eligibility for the $25,000 offset for rental real estate                
             activities prescribed by section 469(i).                                 
                  We do not agree with respondent's second reason for                 
             disallowing the partnership losses.  We agree with                       
             respondent that a married individual who files a separate                
             return for any taxable year is not entitled to the $25,000               
             offset for rental real estate activities unless the                      
             taxpayer lives apart from his or her spouse at all times                 
             during the year.  Sec. 469(i)(5)(B).  However, even if the               
             taxpayer is ineligible for the $25,000 offset for rental                 
             real estate activities provided by section 469(i), the                   
             taxpayer may be entitled to deduct losses from certain                   
             passive activities by reason of other provisions set forth               
             in section 469.  For example, section 469(m) provides a                  






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