- 13 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
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