Gerald and Kathleen Chamales - Page 14




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               Moreover, the Court of Appeals for the Ninth Circuit, to               
          which appeal in the present case would normally lie, has adopted            
          this rule requiring physical damage.  See, e.g., Kamanski v.                
          Commissioner, 477 F.2d at 452; Pulvers v. Commissioner, 407 F.2d            
          838, 839 (9th Cir. 1969), affg. 48 T.C. 245 (1967).  In Pulvers             
          v. Commissioner, supra at 839, the Court of Appeals reviewed the            
          specific casualties enumerated in section 165(c)(3) and                     
          concluded:  “Each of those surely involves physical damage or               
          loss of the physical property.  Thus, we read ‘or other                     
          casualty,’ in para materia, meaning ‘something like those                   
          specifically mentioned.’”  Even more explicitly, the Court of               
          Appeals based affirmance in Kamanski v. Commissioner, supra at              
          452, on the following grounds:                                              
                    The Tax Court ruled that the loss sustained was a                 
               nondeductible personal loss in disposition of                          
               residential property and not a casualty loss; that the                 
               drop in market value was not due to physical damage                    
               caused by the [earth]slide, but to “buyer resistance”;                 
               that casualty loss is limited to damage directly caused                
               by the casualty.  We agree.                                            
               Furthermore, two recent opinions from U.S. District Courts             
          within the Ninth Circuit, although nonbinding and not officially            
          reported, nonetheless serve as an indication that the Court of              
          Appeals has not rejected the physical damage requirement.  In               
          Gordon v. United States, No. C-94-4210 MHP (N.D. Cal., July 3,              
          1995), affd. without published opinion 82 F.3d 422 (9th Cir.                
          1996), the District Court, citing the appellate decision in                 






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