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to carry their burden, petitioners must establish both the
existence of a theft within the meaning of section 165 and the
amount of the loss. See Elliott v. Commissioner, 40 T.C. 304,
311 (1963).
In Allen v. Commissioner, supra, we described the operation
of the burden of proof in theft loss cases as follows:
Petitioner has the burden of proof. This includes
presentation of proof which, absent positive proof,
reasonably leads us to conclude that the article was
stolen. If the reasonable inferences from the evidence
point to theft, the proponent is entitled to prevail.
If the contrary be true and reasonable inferences point
to another conclusion, the proponent must fail. If the
evidence is in equipoise preponderating neither to the
one nor the other conclusion, petitioner has not
carried her burden. [Id. at 166.]
The analysis described above, when applied to the facts of this
case, leads to only one conclusion.
The record in this case is extremely sparse. Although both
James and Christopher testified at trial, only James was directly
involved in any way in the attempt to acquire the airplanes.
James’ testimony at trial was quite general and not very
informative. Although he had some documents related to the
airplane acquisition efforts that he introduced into evidence at
trial, many of the documents were not offered or admitted for the
truth of their contents. None of the other key participants,
such as Michael Donnelly, E. B. Leedy, Brian Wilcox, or a
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