Steven D. and Teresa M. Kucera - Page 19




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          evidence.  See Ware v. Commissioner, 92 T.C. 1267, 1268 (1989),             
          affd. 906 F.2d 62 (2d Cir. 1990).                                           
               It is clear that petitioners did not provide notice in their           
          petition of an intent to challenge the extent of petitioner’s               
          participation in BMS.  Their petition states their disagreement             
          with respondent’s determination in the notice of deficiency                 
          solely as follows:                                                          
                    We disagree with the adjustment based on Reg. Sec.                
               1.469-11(c)(1)(ii).  The income from the “1203                         
               Partnership” was attributable to the rental of property                
               pursuant to a written binding contract entered into                    
               before February 19, 1988, and thus was properly                        
               reported as passive income.                                            
               Petitioners never amended their petition to raise or assert            
          any other issue.  No pretrial memoranda were filed by either                
          party.  Counsel for petitioners first raised the issue of                   
          petitioner’s participation in BMS in his opening statement.                 
          Nevertheless, petitioners argue that respondent should have been            
          on notice that petitioner’s participation in BMS was at issue               
          because petitioners stipulated that petitioner was a material               
          participant in the PC but did not make such a stipulation with              
          regard to BMS.                                                              
               Although the recharacterization rule applies only to a                 
          taxpayer’s rental income from property rented for use in a trade            
          or business in which the taxpayer materially participates, see              
          sec. 1.469-2(f)(6), Income Tax Regs., rules governing the                   
          grouping of activities prohibit a partner from treating                     





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