Miguel Martin and Claudia P. Palos - Page 4




                                        - 4 -                                         
                                       OPINION                                        
               Section 165(a)1 allows a deduction for “any loss sustained             
          during the taxable year and not compensated for by insurance or             
          otherwise.”  Although an individual taxpayer’s business and                 
          personal casualty losses are deductible under section 165(c),               
          there is a distinction between them.  Casualty losses incurred in           
          a business or other profit-seeking activity can be fully                    
          deductible, whereas personal casualty losses are subjected to a             
          $100 exclusion and must exceed 10 percent of a taxpayer’s                   
          adjusted gross income.  See sec. 165(h)(1) and (2).  That                   
          distinction is critical to petitioners because the limitations on           
          personal losses may reduce or eliminate petitioners’ ability to             
          deduct a casualty loss deduction.  There is no dispute about the            
          occurrence of the earthquake, and respondent seems to agree that            
          petitioners had some loss; however, respondent contends that the            
          loss was personal and was of an amount that would not have                  
          exceeded the threshold limitations.                                         
               First, we consider the amount of petitioners’ loss.  A                 
          casualty loss is the difference between the fair market value of            
          the property immediately before and immediately after the                   
          casualty.  See sec. 1.165-7(a)(2)(i), Income Tax Regs.                      


               1 Unless otherwise indicated, section references are to the            
          Internal Revenue Code in effect for the tax year under                      
          consideration, and Rule references are to this Court’s Rules of             
          Practice and Procedure.                                                     





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