- 14 - 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 inPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011