Marvin L. Barmes and Barbara J. Barmes - Page 11




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            their cost of restoring the pond because heavy snows in the                                
            winter of 1990-91 that caused the cedar trees to fall into and                             
            damage the pond were sudden, unexpected, and unusual.  We                                  
            disagree.                                                                                  
                  An individual may deduct losses arising "from fire, storm,                           
            shipwreck, or other casualty, or from theft."  Sec. 165(c)(3);                             
            Durden v. Commissioner, 3 T.C. 1, 3 (1944).  A casualty does not                           
            include the "progressive deterioration of property through a                               
            steadily operating cause."  Fay v. Commissioner, 120 F.2d 253,                             
            253 (2d Cir. 1941), affg. per curiam 42 B.T.A. 206 (1940); Durden                          
            v. Commissioner, supra.                                                                    
                  Petitioners contend that the trees fell into their pond from                         
            1991 to 1994 sufficiently suddenly to constitute a casualty loss.                          
            Petitioners cite Bailey v. Commissioner, T.C. Memo. 1983-685, and                          
            Helstoski v. Commissioner, T.C. Memo. 1990-382, to support their                           
            claim that the deterioration of their pond was not from gradual                            
            erosion but was due to a sudden event.  Bailey and Helstoski are                           
            distinguishable from this case.  In Bailey, large portions of the                          
            taxpayers’ backyard fell away in 6 to 8 weeks, exposing the                                
            foundation of their house.  We held that the soil slippage                                 
            occurred quickly enough to be a casualty within the meaning of                             
            section 165(a).  Similarly, in Helstoski, we treated as a                                  
            casualty loss storm damage to the taxpayers’ pond which                                    
            immediately reduced the value of the taxpayers’ property.  In                              






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