- 16 - 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 openingPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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