Peter U. and Mary M. Boehme - Page 10




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               C.  Applicability of Section 163(h)(2)(A)                              
               Petitioners argue for the first time on brief that the                 
          $64,000 interest payment is deductible under section 163(h)(2)(A)           
          as “interest paid or accrued on indebtedness properly allocable             
          to a trade or business”.  We assume that that argument represents           
          an attempt by petitioners to link the loans to Mary’s business              
          use of petitioners’ personal residence.  The Schedule Cs included           
          in petitioners’ returns for the audit years indicate that Mary              
          was engaged in a business (conducted on a cash basis)  referred             
          to variously as “model train painting” (1995) or “professional              
          custom painting” (1996).  The Form 8829, Expenses for Business              
          Use of Your Home, for 1995 states that 37.96 percent of                     
          petitioners’ residence was used regularly and exclusively for               
          business.  For 1996, such business use percentage is stated to be           
          15.4 percent.                                                               
               As a general rule, this Court will not consider issues                 
          raised by a party for the first time on brief when to do so will            
          prevent the opposing party from presenting evidence or arguments            
          that might have been offered had the issue been timely raised.              
          Graham v. Commissioner, 79 T.C. 415, 423 (1982).  In this case,             
          respondent notified the Court of his intention not to file a                
          reply brief for the reason that his opening brief “adequately               
          disposes of the relevant factual and legal aspects of this case.”           
          Respondent has thereby failed to object to petitioners’ argument            






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