Paul Trans and Thuy Bich Dang - Page 16




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          petitioner husband.  We conclude that petitioners held the                  
          benefits and burdens of ownership of the Milpitas property and              
          have established equitable ownership of it during the period in             
          question during 1994.  Accordingly, we hold that petitioners are            
          entitled to deduct the $11,738 home mortgage interest paid by               
          them with respect to the Milpitas property during 1994.                     
                                                                                     
               B. Property Taxes                                                      
               Section 164 allows a deduction for certain taxes, including            
          State and local real property taxes.  In general, taxes are                 
          deductible only by the person upon whom they are imposed.  See              
          sec. 1.164-1(a), Income Tax Regs.  However, the person owning the           
          equitable or beneficial interest in real property and paying the            
          taxes assessed against the property to protect that interest may            
          deduct the taxes paid even though legal title is recorded in the            
          name of another person.  See Estate of Movius v. Commissioner, 22           
          T.C. 391 (1954); Horsford v. Commissioner, 2 T.C. 826 (1943);               
          Casey v. Commissioner, T.C. Memo. 1965-282.                                 
               We have concluded that petitioners were equitable owners of            
          the Milpitas property during 1994; accordingly, we hold that they           
          are entitled to deduct property taxes they paid on the property             
          that year.                                                                  
               For the first time on reply brief, respondent argues that              
          petitioners have not substantiated that they paid the property              
          taxes on the Milpitas property.  Respondent has failed to raise             
          this issue in the notice of deficiency, at trial, or on opening             


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