Estate of Robert L. Wagner, Deceased, Ruth R. Wagner, Personal Representative, and Ruth R. Wagner, et al. - Page 11

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          that respondent believes afforded RTA a reasonable prospect for             
          recovering its investment.  The sole issue we must decide is                
          whether RTA failed to sustain a loss in 1991 because the lawsuit            
          afforded RTA a reasonable prospect of recovery.  That presents a            
          question of fact, and petitioners bear the burden of proof.  Rule           
          142(a).  Petitioners have failed to carry that burden.                      
          II. Summary of Facts                                                        
               In 1989, RTA and Environmental Disposal Systems, Inc. (EDS),           
          entered into an agreement (the agreement) for the acquisition by            
          RTA from EDS of the tire transformation system (TTS).                       
          Difficulties ensued, and, in September 1990, RTA sued EDS for               
          breach of contract (the lawsuit), its principal requests being              
          specific performance, delivery of the TTS, and injunctive relief.           
          In May 1991, RTA discharged its employees and ceased business               
          operations.  It claimed a loss on its 1991 Federal income tax               
          return on account of abandonment of the TTS (the TTS loss) and              
          reported the TTS loss to the shareholders.  The lawsuit was                 
          concluded in 1992, when EDS agreed to pay RTA $2.1 million, none            
          of which, however, has been paid.                                           
          III.  Law Applicable to Deductions of Losses                                
               A.  Allowance for Losses Sustained During the Taxable Year             
               With limitations not here pertinent, section 165 "[allows]             
          as a deduction any loss sustained during the taxable year and not           
          compensated for by insurance or otherwise."  Sec. 165(a).                   
          Section 1.165-1(b), Income Tax Regs., provides:  “To be allowable           




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