Zahirudeen Premji and Carol M. Premji - Page 21

                                       - 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 1990             




Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011