Andy Rataiczak - Page 10




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          the theft, and therefore petitioner may claim the deduction.  In            
          general section 165(a) allows a deduction for any loss sustained            
          during the taxable year.3  Section 165(c)(1) limits the deduction           
          to, among other things, losses incurred in a trade or business.             
          Petitioner’s loss qualifies.  Thus, petitioner is entitled to a             
          loss deduction of $3,000 in 1993.                                           
               Petitioner testified that in 1994, after he closed the                 
          service station, he kept some inventory that he was unable to               
          return, and returned some inventory.  Any inventory that                    
          petitioner kept or returned would not have been sold, and thus              
          would not have contributed to gross sales.  The only evidence in            
          the record with respect to the value of unsold inventory is                 
          petitioner’s testimony that he kept a case of spark plugs for               
          which he paid $1,000.  We accept this testimony, and therefore              
          petitioner’s cost of purchases to which the 22.8-percent markup             
          is applied should be reduced by $1,000 in 1994.                             
          Depreciation                                                                
               In the notice of deficiency, respondent disallowed                     
          depreciation deductions for a tow truck and its engine in the               
          amounts of $1,592 for 1993 and $1,137 for 1994.  Respondent                 
          determined that petitioner had not proven that this equipment was           
          used in a trade or business or for the production of income.  In            


               3 Any loss arising from theft is treated as sustained in the           
          year discovered.  See sec. 165(e).  We find that petitioner                 
          discovered the loss in 1993.                                                




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