Thomas P. and Ermina A. Krukowski - Page 10




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          if neither party gives contrary notice; held, lease is 2-year                 
          lease because either party can prevent renewal by giving notice).             
          See also Sheppard v. Rosenkrans, 85 N.W. 199 (Wis. 1901).                     
          Petitioner, as lessor, had to agree with the lessee/law firm as               
          to the rent that would be payable for any additional rental                   
          period after the first 5 years.  Moreover, if they were unable to             
          reach such an agreement at least 30 days before the 5-year period             
          expired, petitioner possessed the sole discretion to declare the              
          option to renew null and void.                                                
               We also bear in mind that the absence in the 1987 lease of               
          an agreed-upon rent for the renewal period made the 1987 lease                
          unenforceable for any period after the 5-year period expired.                 
          See Wis. Stat. Ann. sec. 704.03(1) (West 1998) (Wisconsin statute             
          of frauds provides that a lease for more than a year, or a                    
          contract to make such a lease, is unenforceable unless it sets                
          forth the amount of rent or other consideration).  In fact, an                
          enforceable contract for the additional period did not exist                  
          until December 27, 1991, when the parties agreed on a rent for                
          the renewal period and created a writing memorializing that new               
          agreement.  See Borkin v. Alexander, 132 N.W.2d 587 (Wis. 1965);              
          Ratcliff v. Aspros, 35 N.W.2d 217 (Wis. 1948).                                
               Petitioner also argues that he is not subject to the                     
          recharacterization rule by virtue of section 1.469-11(b)(1),                  
          Income Tax Regs., which allows taxpayers, at their option, to use             






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