Harold A. Johnson - Page 9
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constitutes a theft within the meaning of section 165. See
Johnson v. United States, supra at 909 (neither foreclosure by
bank on property to enforce its security interest nor bank’s
exercise of its right of setoff against funds on deposit
constituted a theft within the meaning of section 165); Rafter v.
Commissioner, 60 T.C. 1, 13 (1973) (neither seizure of automobile
pursuant to writ of attachment nor repossession of automobile
pursuant to a security interest constituted a theft within the
meaning of section 165; both the seizure and the repossession
were under color of law and no criminal intent was demonstrated),
affd. 489 F.2d 752 (2d Cir. 1974); see also Vance v.
Commissioner, 36 T.C. 547, 551 (1961); Washington v.
Commissioner, T.C. Memo. 1990-386, affd. without published
opinion 930 F.2d 919 (6th Cir. 1991). However, we need not
decide either matter because the premise on which petitioner’s
theory rests is lacking. In this regard we observe that the
Florida court of appeal has consistently held that Judge Harris
had jurisdiction to issue the July 22, 1988, foreclosure order
and that the Florida Supreme Court has declined to review that
ruling. We need go no further.9
9 In 2000, petitioner filed an action against Sandy
Crawford, Clerk of Courts of Brevard County, Florida, in the U.S.
District Court for the Middle District of Florida, seeking to
declare the July 22, 1988, foreclosure order void. The District
Court dismissed petitioner’s complaint. On Feb. 16, 2001, the
U.S. Court of Appeals for the Eleventh Circuit affirmed the
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