- 5 - Petitioner, a cash basis taxpayer, never received the escrowed funds and did not include those funds in income or pay tax thereon for 1990 (or any other year). Petitioner therefore has no basis in the escrowed funds. Accordingly, petitioner is not entitled to a deduction under section 165 for the theft loss of those funds.3 See United States v. Kleifgen, 557 F.2d 1293, 1299 (9th Cir. 1977); Alsop v. Commissioner, 290 F.2d 726, 727 (2d Cir. 1961), affg. 34 T.C. 606 (1960). Based on the record before us, we find that petitioner is not entitled to a deduction under section 165 for the $173,000 of escrowed funds that were stolen. To reflect the concessions of the parties, Decision will be entered under Rule 155. 3 Although it is not altogether clear, petitioner appears to claim that Mr. Stern paid income tax on some of the escrowed funds. The record does not support petitioner's claim. Even assuming arguendo that it did, petitioner would still not have a basis in the escrowed funds and would not be entitled to a deduction for those funds under sec. 165.Page: Previous 1 2 3 4 5
Last modified: May 25, 2011