Robert J. and Anne L. Wilson - Page 5

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          rental property in Gaithersburg, Maryland.  At trial and on                  
          brief, petitioners argued that they should be allowed to deduct              
          those expenses if the Court should find, as we indeed did in                 
          Wilson I, that the condemnation proceeds do not qualify for tax-             
          free treatment under section 1033.3  We agree with petitioners.              
               Ordinary and necessary attorney fees are generally                      
          deductible subject to certain restrictions under section 67(a),              
          provided such expenses are paid or incurred during the taxable               
          year with respect to an issue involving income-producing                     
          property.  Sec. 212(1); sec. 1.212-1(l), Income Tax Regs.  In                
          addition, a deduction is allowed for attorney's fees paid or                 
          incurred during the taxable year in connection with the                      
          determination, collection, or refund of any tax with respect to              



          3    Although this issue was not raised by petitioners in their              
          petition herein, it was argued by them at trial and on brief, and            
          the evidence is uncontested that they indeed incurred attorney               
          fees of $26,341 in 1989.  Leahy v. Commissioner, 87 T.C. 56, 65              
          (1986); Estate of Horvath v. Commissioner, 59 T.C. 551, 555                  
          (1973); Wynn v. Commissioner, T.C. Memo. 1996-415.  Moreover, at             
          trial, respondent did not object to petitioners' assertion that              
          the attorneys' fees are at issue if "the Court should find that              
          [petitioners] didn't reinvest" the condemnation award pursuant to            
          sec. 1033.                                                                   
               Normally we will not consider an issue that was not pleaded,            
          but raised for the first time on brief.  Rule 34(b)(4).  However,            
          respondent did not object to petitioners' arguments, and we find             
          that based on the entire record, respondent was not surprised or             
          prejudiced by petitioners' position.  Accordingly, we deem the               
          issue raised and tried by consent of the parties under Rule                  
          41(b).  Mills v. Commissioner, 399 F.2d 744, 748 (4th Cir. 1968)             
          affg. T.C. Memo. 1967-67; Leahy v. Commissioner, supra; Estate of            
          Horvath v. Commissioner, supra; Christensen v. Commissioner, T.C.            
          Memo. 1996-254.                                                              




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