- 18 -18 Mr. Ottey's testimony failed to persuade us that Irvington Federal suffered a $280,000 loss. Based on the record, we find that the bank's loss from petitioner's check-kiting scheme was $183,229. This amount represents the total Irvington Federal checks that Commercial & Farmers dishonored on July 13, 1988. After reducing the $183,229 by $20,000 to reflect attorneys' fees conceded by respondent, we hold that petitioners had unreported income of $163,229 in 1988 from petitioner's check-kiting scheme. Petitioners are entitled to relief for repayments to Irvington Federal with regard to the dishonored checks. See James v. United States, 366 U.S. at 219-220. Taxpayers are permitted to deduct from income the amount of actual repayments made to the embezzled party in the year of repayment. Ianniello v. Commissioner, 98 T.C. 165, 174 (1992).6 The character of the repayments as a loan or restitution here is irrelevant. If the taxpayer proves the actual repayment of the embezzled funds, he is entitled to treat those repayments as losses under section 165(c)(2).7 Mais v. 6 There is no evidence to suggest that petitioners were not cash basis taxpayers. Consequently, any amount repaid is deductible in the year of repayment. See Whitaker v. Commissioner, 259 F.2d 379, 382 (5th Cir. 1958), affg. 27 T.C. 399 (1956). 7 SEC. 165. LOSSES. (a) General Rule.--There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise. (continued...)Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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