Paul A. and Marilyn J. Grothues - Page 29




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               C.   Lack of Reasonable Certainty No Recovery Can Be Made              
               Even if the embezzlement claim belonged to petitioners and             
          they proved that theft occurred, it could not be ascertained with           
          reasonable certainty that there was no reasonable prospect of               
          recovery from Mr. Kanz, as required by section 1.165-1(d)(3),               
          Income Tax Regs.                                                            
               There is a reasonable prospect of recovery when the taxpayer           
          has bona fide claims for recoupment from third parties or                   
          otherwise, and when there is a substantial possibility that such            
          claims will be decided in his favor.  Estate of Scofield v.                 
          Commissioner, 266 F.2d 154, 159 (6th Cir. 1959), affg. in part              
          and revg. in part 25 T.C. 774 (1956); Ramsey Scarlett & Co. v.              
          Commissioner, 61 T.C. 795, 811-812 (1974), affd. 521 F.2d 786               
          (4th Cir. 1975).                                                            
               Mr. Kanz told petitioners he had no assets or inheritance to           
          pay the judgment, and they claim they believed the testimony of a           
          man who allegedly embezzled more than $186,000 from them.                   
          Petitioners have not provided any independent evidence that Mr.             
          Kanz no longer has any assets, net worth, or opportunity for an             
          inheritance with which to pay the judgment.  To this date, more             
          than 8 years after the collateral agreement was executed, Mr.               
          Kanz has not fulfilled his part of the bargain.  Yet, petitioners           
          have not attempted to collect the judgment from Mr. Kanz.                   
          Petitioners have not satisfied their burden of proving it could             






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