Timothy Demitri Brown - Page 7

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          Mr. Brown argues that because he was unable to close on the                 
          townhouse, he forfeited the deposit under the terms of the                  
          contract and, therefore, was entitled to claim a loss deduction.            
               However, this assumption is not supported by the terms of              
          the contract.  The contract provided that upon the buyer’s                  
          default, the seller may either seek specific performance or any             
          other relief provided by law or terminate the contract and keep             
          the earnest money deposit as liquidated damages.  Mr. Brown has             
          not shown that the seller elected to keep the deposit as                    
          liquidated damages or even that the seller intended to enforce              
          its contract claim against Mr. Brown.  Indeed, Mr. Brown                    
          admittedly received the $5,000 back from the seller during the              
          next taxable year.  Accordingly, we find that Mr. Brown’s breach            
          of contract, in itself, was not a closed and completed                      
          transaction giving rise to a deductible loss.3  See Lucas v.                
          American Code Co., 280 U.S. 445, 450 (1930).                                
               Next, we must determine whether Mr. Brown is entitled to               
          claim a deduction for a theft loss in the amount of $22,300 for             
          the property taken from him by Ms. Lotts.  Mr. Brown filed a                
          civil suit against Ms. Lotts in 1994, obtained a default                    
          judgment, and has pursued collection since then.  Mr. Brown did,            
          in fact, recover the vehicle from Ms. Lotts.  We find that the              

          3We note, however, that because Mr. Brown reported the                      
          recovery of the $5,000 deposit as income in 1994, he overreported           
          his taxable income in 1994 and may be entitled to a refund for              
          that year.                                                                  




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