Agostinho Dias Reis - Page 5

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               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.                                   




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