- 35 - 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 theftPage: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
Last modified: May 25, 2011