Frank A. Walter and Joann R. Walter - Page 4

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          legislative grace, and petitioners bear the burden of proving               
          that they are entitled to any deduction claimed.  New Colonial              
          Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).                             
               As we understand petitioners' position, they contend that              
          (1) the $50,000 punitive damages award constituted a nonbusiness            
          debt owed to petitioner by Mr. Erkel, (2) that debt became                  
          worthless during 1991, and (3) they are therefore entitled to a             
          $50,000 nonbusiness bad debt deduction for 1991.  Respondent does           
          not dispute that the $50,000 punitive damages award constituted a           
          debt owed to petitioner by Mr. Erkel within the meaning of                  
          section 166.  However, respondent contends that petitioners are             
          not entitled under section 166 to a deduction for 1991 with                 
          respect to that debt because (1) they failed to establish that              
          the punitive damages award became a worthless debt during 1991              
          within the meaning of that section, (2) they did not include any            
          portion of the punitive damages award in their gross income for             
          Federal income tax purposes, and (3) they failed to establish               
          that they had any basis in the punitive damages award.4                     


          4  Respondent notes on brief that it is not clear to her whether            
          petitioners are also taking the position that they are entitled             
          to a $50,000 deduction for 1991 under the general loss provisions           
          of sec. 165(a) for the punitive damages award at issue.  Conse-             
          quently, respondent also contends on brief that if petitioners              
          were advancing any such position, it would be unsupported and               
          must be rejected.  While we do not agree with respondent that               
          petitioners also are relying on sec. 165(a) in this case, we do             
          agree with respondent that any such position would be without               
          merit.                                                                      




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