- 21 - Commissioner, supra at 276; Huey v. Commissioner, T.C. Memo. 1985-348. However, filing a proof of claim in a bankruptcy proceeding has been held to be a ministerial act that does not require the same degree of effort as pursuing a lawsuit. Jensen v. Commissioner, supra. The burden is on the taxpayer to show there was no reasonable prospect of recovery in the year the theft loss is claimed. Gale v. Commissioner, supra at 276. For the reasons stated below, we hold that neither Mr. Premji nor Mr. Norby sustained a deductible theft loss in 1990. Both Mr. Premji and Mr. Norby contend that their theft losses were discovered in 1990. To the contrary, respondent contends that the losses were not discovered until 1991 when Ms. Jobin, the trustee in bankruptcy, first ascertained that M&L was operating an illegal ponzi scheme and that its inventory did not exist. Regardless of the year in which the theft losses were discovered, the crucial issue here, as we see it, is whether petitioners had a reasonable prospect of recovery in 1990 when they claimed the theft loss deductions. Based on the evidence presented, we conclude that there was a reasonable prospect in 1990 that petitioners would subsequently recover some of their losses. Several facts support our conclusion. First, Ms. Jobin, the trustee in bankruptcy, testified that she was "hopeful" in 1990Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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