Zahirudeen Premji and Carol M. Premji - Page 26

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          investment, Mr. Norby did not consult an attorney in 1990 or                
          1991.  He knew that collateral suits against third parties were             
          in progress but chose not to participate in them.  He did not               
          speak with Ms. Jobin, the bankruptcy trustee, in 1990.  He filed            
          a proof of claim in the bankruptcy proceeding on November 5,                
          1991, seeking recovery of his losses.                                       
               While the information Mr. Norby obtained in 1990 indicated             
          M&L's fraud and raised questions about its true financial                   
          condition, the record does not support his conclusion that,                 
          objectively, his prospects of recovering at least part of his               
          investment were remote or nebulous.                                         
               Mr. Norby did not offer any explanation as to why any                  
          attempt or suit for recovery would have been futile except to               
          relate that his analysis and subjective feelings led him to                 
          believe that his principal investment in M&L had been lost in               
          1990.  That is not sufficient to meet his burden of proof that              
          there was no prospect of recovery.  See Boehm v. Commissioner,              
          326 U.S. at 294.                                                            
               Accordingly, because we conclude that Mr. Premji and Mr.               
          Norby had reasonable prospects for recovery of some of their                
          claimed M&L losses in 1990, we hold that they are not entitled to           
          theft loss deductions in that year.11                                       

          11        Petitioners may be entitled to claim theft loss                   
          deductions in the year their claims are allowable and paid in the           
          bankruptcy proceeding if their recoveries are less than the                 
          principal amounts they invested in M&L.                                     




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