- 11 -
reasonable prospect of recovery, no loss may be reported until it
can be ascertained with reasonable certainty whether or not such
reimbursement will be received. Section 1.165-1(d)(2)(i), Income
Tax Regs., further provides that whether a reasonable prospect of
recovery exists with respect to a claim for reimbursement of a
loss is a question of fact to be determined upon an examination
of all facts and circumstances.
Respondent argues that, assuming Lakewood suffered a
"taking" in this case, Lakewood necessarily possessed a
"reasonable prospect of recovery" as contemplated under section
1.165-1(d)(2)(i), Income Tax Regs. Relying on affidavits
executed by Lakewood's environmental engineering consultants,
petitioner counters that, by virtue of COE's method of operation,
there is a genuine issue of fact whether Lakewood's property was
taken in such a manner as to eliminate any reasonable prospect of
recovery.
While there is a certain allure in the fundamental logic
underlying respondent's argument, on the whole we find
respondent's position to be overly simplistic. It is beyond
peradventure that the Federal Government is obliged to provide
just compensation where private property is taken within the
meaning of Fifth Amendment. See, e.g., Lucas v. South Carolina
Coastal Council, 505 U.S. 1003 (1992). Nevertheless,
respondent's abstract concession that Lakewood suffered a
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011