- 56 - 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 aPage: Previous 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 Next
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