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theft loss within the meaning of section 165 requires a "theft"
under applicable State law. See Viehweg v. Commissioner, 90 T.C.
1248, 1253 (1988). Under Ohio law, to be guilty of theft by
deception, it must be shown that the accused obtained money or
property of the alleged victim by knowingly deceiving him by a
false or misleading representation, by withholding information,
by preventing the alleged victim from acquiring information, or
by any other conduct, act, or omission which created, confirmed,
or perpetuated a false impression as to law, value, state of mind
or other objective or subjective fact. Ohio Rev. Code Ann. sec.
2913.01(A) (Anderson 1996). Petitioner has the burden of proving
theft under Ohio law. Rule 142(a).
Petitioner has failed to prove under Ohio law that a theft
has occurred. There is no evidence establishing that any
statements or representations made by Mr. Kelley that petitioner
may have relied on were false; there is no evidence that any
false statements were made with the intent of criminally
appropriating petitioner's money; and there is no evidence
establishing that petitioner's loss was related to any false
representations. Viehweg v. Commissioner, supra at 1254.
Petitioner testified that Mr. Kelley had pirated some portion of
the software and had deceived petitioner as to his rights to the
software being developed. Petitioner offered no evidence, other
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