Howard L. Burris, Sr. and Barbara J. Burris - Page 18




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               Petitioner deducted home mortgage interest of $20,180 in               
          1990, $32,741 in 1991, and $7,497 in 1993.  Respondent argues               
          that the mortgage interest is investment interest.  Petitioner              
          testified that he “placed a mortgage on it [petitioners’                    
          residence] to bail out some of these items [other debts]”.                  
          Respondent did not establish that the indebtedness at issue was             
          not QRI.  Further, respondent did not present additional evidence           
          to prove that the indebtedness at issue was not secured by                  
          petitioners’ qualified residence.  There is nothing in this                 
          record which would lead us to the conclusion that respondent’s              
          characterization of the interest as investment interest is                  
          correct.                                                                    
               We are also unable to discern when the debt was incurred.              
          Respondent’s agent, Michael A. Halpert, testified that he                   
          “reviewed the petitioner statements he received from banks and              
          other lending institutions reflecting the amount of interest he             
          had paid in the respective years”.  Respondent did not produce              
          any of these documents at trial, and the record is silent as to             
          when petitioners purchased their residence.  It is possible that            
          the debt could qualify as pre-October 13, 1987, debt, in which              
          case the use of the funds from the indebtedness is not relevant             
          to our inquiry.  Respondent failed to establish that the interest           
          was not QRI.  We hold for petitioners on this issue.                        








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