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Respondent contends that to prove "theft" under Pennsylvania
law "the mind of a thief" is relevant and that it must be shown
that there was a specific criminal intent to permanently deprive
the owner of his or her property. The existence vel non of
criminal intent in the circumstances of a particular taking is a
question of fact, and one which is peculiarly within the
competence of this Court to decide. Farcasanu v. Commissioner,
436 F.2d 146, 149 (D.C. Cir. 1970), affg. per curiam 50 T.C. 881
(1968).
Both parties quote Jones v. Commissioner, 24 T.C. 525, 527
(1955) (quoting Allen v. Commissioner, 16 T.C. 163, 166 (1951))
for guidance as to the burden of proof in a theft case:
Petitioner has the burden of proof. This includes
presentation of proof which, absent positive proof,
reasonably leads us to conclude that the article was
stolen. If the reasonable inferences from the evidence
point to theft, the proponent is entitled to prevail.
If the contrary be true and reasonable inferences point
to another conclusion, the proponent must fail. If the
evidence is in equipoise preponderating neither to the
one nor the other conclusion, petitioner has not
carried her burden.
Petitioner attempts to transmute an obvious fee dispute with
respect to Lynch and Reardon into a criminal activity, i.e.,
theft. Thus, under the rationale of the Allen case, the
threshold question is whether the reasonable inferences from the
evidence point to a fee dispute or a theft. If it was a fee
dispute, then we need not jump through hoops raised by
petitioner's assertions that Lynch and Reardon committed a theft
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