Alton W. Burns and Pamela Burns - Page 11

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            forward that loss to 1989.  They argue that if a capital loss                                
            were incurred in those years "which exceeded the current capital                             
            gains and other application of capital losses during the period                              
            from 1979 to 1988, the capital loss carryover created would be                               
            capable of being carried into 1989 and offset the reported gain."                            
                  Petitioners are unclear about whether they are seeking a bad                           
            debt deduction under the provisions of section 166, a loss                                   
            deduction under the provisions of section 165, or both with                                  
            respect to the Riviera and the Arizona Marine transactions.  In                              
            their trial memorandum, petitioners cite section 166(a), which                               
            allows a deduction for a debt that becomes worthless within a                                
            taxable year.  They also cite section 165(g), which allows a                                 
            deduction for a security which becomes worthless during a taxable                            
            year.  On brief after trial, petitioners argue "there is little                              
            significance to whether the loss constituted a short-term capital                            
            loss under � 166(d)(1)(B) IRC or a long term capital loss as                                 
            described under � 1201 et.seq. IRC."  They cite no other code                                
            sections throughout their brief and reply brief.                                             
                  The separate statutory provisions regarding losses and bad                             
            debts are mutually exclusive.  Spring City Foundry Co. v.                                    
            Commissioner, 292 U.S. 182, 189 (1934).  Therefore, if a loss has                            
            been sustained, the taxpayer may not deduct it as a bad debt.                                
            Moreover, deductions are not a matter of right but of legislative                            
            grace.  The burden is on the taxpayer to bring the case squarely                             






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