Alonzo and Emma J. Bradley - Page 13

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          property.  Neither the expense nor the depreciation figures                 
          reflect rental income received.  There was no mention of Schedule           
          E rental income or the business or profit-seeking status of                 
          petitioners' real estate activities in respondent's Answer or in            
          his trial memorandum.  Respondent first formally raised the                 
          substantiation of the rental income at trial.  The challenge to             
          the business or profit-seeking status of petitioners' activities            
          was not raised until the posttrial brief.  Because the notice was           
          quite specific regarding the Schedule E items disallowed, we do             
          not believe that the issue of the "trade or business" or "for               
          profit" status of petitioners' real estate activities was fairly            
          raised in the pleadings prior to trial, or during the trial, and            
          decline to permit respondent to raise it for the first time in a            
          posttrial brief.  See Fox Chevrolet, Inc. v. Commissioner, 76               
          T.C. 708, 735 (1981); Estate of Horvath v. Commissioner, 59 T.C.            
          551, 555-556 (1973).  Since respondent has conceded the expenses            
          and depreciation disallowed in the notice, we allow deductions              
          for those items.                                                            
               Finally, we consider whether petitioners have substantiated            
          the Schedule E expenses relating to the Mississippi land                    
          disallowed in the notice.8  To substantiate the Schedule E auto             
          and travel expenses that were disallowed, petitioners offered               


               8Respondent has conceded that petitioners are allowed a                
          deduction in the amount of $259 for taxes related to the                    
          Mississippi land.                                                           




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