Manaharlal C. Parekh and Elizabeth Parekh - Page 2

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               The issues for decision are:  (1) Whether petitioners are              
          entitled to a deduction under section 162 or under section                  
          165(e)1 for a $450,000 payment in connection with a guarantor               
          agreement; and (2) whether petitioners may include the $450,000             
          payment in computing net operating losses (NOL's) from the                  
          bankruptcy estate of petitioner Manaharlal C. Parekh.                       
                                  FINDINGS OF FACT                                    
               Some of the facts have been stipulated and are so found.               
          The stipulation of facts and the attached exhibits are                      
          incorporated herein by this reference.  Petitioners, husband and            
          wife, resided in Odessa, Texas, at the time they filed the                  
          petition in this case.  Petitioners filed joint Federal income              
          tax returns for the 1990 and 1991 taxable years.                            
               Manaharlal C. Parekh (petitioner) is a thoracic and                    
          peripheral vascular surgeon who practices in the Midland/Odessa             
          area of Texas.                                                              


               1  At trial, petitioners raised for the first time the                 
          deductibility of the $450,000 payment under sec. 165(e) as a                
          theft loss.  We will not, as a general rule, consider an issue              
          raised for the first time at trial since it has not been properly           
          pleaded.  See Estate of Mandels v. Commissioner, 64 T.C. 61, 73             
          (1975).  When issues not raised by the pleadings are tried by               
          implied consent of the parties, however, the issues shall be                
          treated as if they had been raised in the pleadings.  Rule 41(b).           
          The parties satisfied Rule 41(b) when they introduced the issue             
          at trial and acquiesced in the introduction of evidence on that             
          issue without objection.  LeFever v. Commissioner, 103 T.C. 525,            
          538-539 (1994), affd. 100 F.3d 778 (10th Cir. 1996); see also               
          Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir.            
          1982).                                                                      




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