- 20 - 1995-342; see also Jensen v. Commissioner, T.C. Memo. 1993-393, affd. without published opinion 72 F.3d 135 (9th Cir. 1995). The standard to be applied is primarily objective, but the taxpayer's subjective attitude and beliefs are not to be ignored. Boehm v. Commissioner, supra at 292-293; Ramsay Scarlett & Co. v. Commissioner, supra at 812. The standard is to be applied with foresight. Ramsay Scarlett & Co. v. Commissioner, supra at 811. One of the relevant factors is whether the taxpayer has filed a lawsuit to recoup the loss. Dawn v. Commissioner, supra at 1078; Scofield's Estate v. Commissioner, 266 F.2d 154, 159 (6th Cir. 1959), affg. in part and revg. in part 25 T.C. 774 (1956). Filing the lawsuit soon after the end of the tax year in which the loss was claimed suggests that the taxpayer did not consider the loss a closed and completed transaction. Dawn v. Commissioner, supra at 1078; see also National Home Products, Inc. v. Commissioner, 71 T.C. 501, 525-526 (1979). Unless litigation is speculative or without merit, where the taxpayer deems the chance of recovery sufficiently probable to warrant bringing a lawsuit and pursuing it with reasonable diligence to a conclusion, the taxpayer should postpone the loss deduction until the litigation is terminated. Scofield's Estate v. Commissioner, supra at 159; see also Gale v. Commissioner, 41 T.C. 269, 276 (1963). Another fact which we may consider is whether the taxpayer ultimately recovered as a result of a lawsuit. Gale v.Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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