Michael K. Berry - Page 41

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         entitled to a deduction for alimony in excess of the amount                  
         claimed on his 1999 return and disallowed by respondent ($50,528),           
         nor did he move for leave to amend the petition to include such a            
         claim.  See Rule 41(a).  Normally, we do not consider issues not             
         raised in the pleadings.  E.g., Christensen v. Commissioner, T.C.            
         Memo. 1996-254 n.1, affd. without published opinion 142 F.3d 442             
         (9th Cir. 1998); see Rule 34(b)(4).  However, the parties’                   
         stipulations reflect both the claim for an increased deduction               
         ($54,110) and the basis for that claim (i.e., the amounts paid to            
         Drs. Caffaro and Murphy), and respondent addressed the issue in              
         his reply brief.  Accordingly, we shall treat petitioner’s claim             
         for an increased alimony deduction as having been tried by consent           
         of the parties.  See Rule 41(b); see also Certified Grocers of               
         Cal., Ltd., v. Commissioner, 88 T.C. 238, 246 n.17 (1987)                    
         (application of Rule 41(b) in the context of a fully stipulated              
         case).                                                                       
                   2.  Substantive Analysis                                           
              The record reveals no factual predicate for petitioner’s                
         claim that his payments to Drs. Caffaro and Murphy in 1999 ($4,188           
         + $114 = $4,302) qualify as deductible alimony.  In order so to              
         qualify, such payments would have to have been made “under a                 
         divorce or separation instrument”.  Sec. 71(b)(1)(A); see sec.               
         71(b)(2).  Neither the dissolution judgment, the 1999 order, nor             
         any other document contained in the record (including the parties’           
         stipulations) reveals any obligation of petitioner to make                   





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