Robert P. and Christine M. Lolli - Page 5

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                    A:   That's really a matter of when we had this                   
               discussion once before.  The minute I handed him money                 
               it was a swindle.  The last time -- the last check he                  
               got in my heart, in my opinion, was the swindle.                       
                    Q:   Right                                                        
                    A:   Now, when did I know that, probably a week                   
               later.                                                                 
                    Q:   Which was in January of 1989?                                
                    A:   Or December of '88 in that little time frame,                
               yeah.                                                                  

          Section 165(a) generally provides that there shall be allowed as            
          a deduction any loss sustained during the taxable year and not              
          compensated for by insurance or otherwise.  For purposes of                 
          section 165(a), a loss arising from theft is treated as sustained           
          during the taxable year in which the taxpayer discovers such                
          loss.3  Sec. 165(e); sec. 1.165-8, Income Tax Regs.  Thus, even             
          if we accept, arguendo, that there was a theft of the moneys                
          invested by petitioner, his testimony belies his claim that the             
          proper year to account for such a loss was 1990.4                           
               Respondent bears the burden of proof with respect to her               
          determination of an increased deficiency in the amount of $487              


               3The record does not demonstrate, with respect to the                  
          purported theft of his investment, that there was a claim for               
          which petitioner had a "reasonable prospect of recovery".                   
          Accordingly, the provisions of sec. 1.165-1(d)(3), Income Tax               
          Regs., are not applicable in this matter.                                   
               4Furthermore, even if we were to characterize the "business            
          loss" claimed in the amended petition as a deduction for a bad              
          debt, petitioner has failed to produce any evidence, other than             
          his own self-serving testimony, that such a debt became worthless           
          within the taxable year 1990.  Sec. 166(a).                                 



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