Martin and Marion Abbene - Page 12

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            ownership of those assets to the corporation.13  On its 1991 Form                            
            1120S, Blue Ribbon also reported a section 1231 loss on the                                  
            destruction of Mr. Abbene's horse, Magic Moment, in the amount of                            
            $2,880.                                                                                      
                  Petitioners reported combined gross income of $134,629 for                             
            1990, $112,136 for 1991, and $110,245 for 1992.  Petitioners                                 
            claimed losses in the amounts of $58,809, $57,799, and $61,017                               
            for 1990, 1991, and 1992, respectively, as Mr. Abbene's                                      
            distributive share of Blue Ribbon's operating losses.14  For                                 
            1991, petitioners also claimed $2,880, as Mr. Abbene's                                       
            distributive share of the section 1231 loss Blue Ribbon claimed                              
            on the destruction of Magic Moment.                                                          


            13    Mr. Abbene indicated at trial that Blue Ribbon did not own                             
            the assets used in its operations and for which it claimed                                   
            depreciation deductions during the years in issue.  Accordingly,                             
            at the close of trial, respondent made an oral motion pursuant to                            
            Rule 41(b) to amend the pleadings to conform to the evidence in                              
            order to assert, in the alternative, that petitioners are not                                
            entitled to claim losses in connection with the operation of Blue                            
            Ribbon to the extent that such losses represent depreciation                                 
            deductions.  We denied respondent's motion on the grounds that                               
            the depreciation issue was not tried by either express or implied                            
            consent of the parties.  Rule 41(b).  Consequently, the issue of                             
            whether Blue Ribbon was entitled to depreciation deductions in                               
            connection with the assets owned by Mr. Abbene, but used in its                              
            operations, is not properly before the Court, and is not                                     
            considered in this opinion.                                                                  
            14    Petitioners claimed a loss from the operation of Blue Ribbon                           
            in the amount of $62,638 for 1993.  Petitioners claimed no losses                            
            from the operation of Blue Ribbon for 1994, 1995, or 1996.  While                            
            the record discloses a loss of $59,714 for 1994, there is no                                 
            evidence of the amount of income or loss from the operation of                               
            Blue Ribbon for 1995 or 1996.                                                                




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