Glenn H. and Diane J. Flood - Page 17




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          have not shown that they became worthless during 1992.                      
          Are Petitioners Entitled to a Casualty Loss Deduction?                      
               We next consider whether petitioners are entitled to a                 
          casualty loss deduction under section 165 for losses stemming               
          from the destruction of the auction.  Petitioners advanced their            
          casualty loss argument for the first time in their brief as an              
          entirely new and separate issue.  After considering that this               
          issue was not tried by consent of the parties and that surprise             
          and prejudice to respondent would result, we hold that the issue            
          was not timely raised.  See Estate of Horvath v. Commissioner, 59           
          T.C. 551, 555 (1973).  Petitioners’ casualty loss argument                  
          appears to be an afterthought.  Petitioners have not shown that             
          they had an ownership interest in the auction.  Additionally,               
          petitioners’ argument conflicts factually with petitioner’s                 
          father’s and stepmother’s claim of a $55,825 casualty loss for              
          the same property.                                                          
          Petitioner’s Basis in Glenwood                                              
               We next consider whether petitioners have shown that they              
          correctly reported capital gain from the 1992 sale of Glenwood.             
          Section 1001(a) provides that gain from the sale or disposition             
          of property shall be the excess of the amount realized over the             
          adjusted basis.  Section 1001(b) provides that the amount                   
          realized is the sum of money received plus the fair market value            
          of any property received.  Section 1001(c) requires that the                
          amount of gain on the sale or exchange of property be recognized            





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