Estate of James W. Boyle - Page 13




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          calculating gain or loss on its disposition, calculated in                  
          accordance with sections 1.1011-1, 1.1016-2, and 1.1016-3, Income           
          Tax Regs., was their adjusted basis in the old warehouse as of              
          the date of the casualty or $40,831.10                                      
          Summary                                                                     
               A taxpayer cannot deduct a casualty loss under section                 
          165(a) unless his adjusted basis in the converted property                  
          exceeds the reimbursement received.  United States v. Koshland,             
          208 F.2d 636, 639 (9th Cir. 1953); LaFavre v. Commissioner, T.C.            
          Memo. 2000-297; Elliston v. Commissioner, T.C. Memo. 1973-4; sec.           
          1.165-7(b)(3), Examples (1) through (3), Income Tax Regs.                   
          Despite this well-established principle, petitioners urge us, in            
          effect, to permit them to deduct as a casualty loss their entire            
          unrecovered investment in both the old and new warehouses.  This            
          we cannot do for the reasons discussed herein.  We hold that the            
          cost of constructing the new warehouse does not increase the                
          Boyles’ adjusted basis in the old warehouse for purposes of                 
          section 165, and, therefore, the Boyles’ adjusted basis in the              


               10In his opening brief, respondent notes that the revenue              
          agent’s calculation of the allowable casualty loss showed the               
          Boyles’ adjusted basis as $33,408.  This figure was calculated              
          (with a $1 discrepancy) by subtracting the 1994 depreciation                
          deduction of $7,424 from $40,831, the Boyles’ adjusted basis in             
          the old warehouse as of the date of the fire.  Respondent states            
          that he does not concede that the 1994 depreciation deduction was           
          proper, but he takes the position that the issue is immaterial              
          because the insurance proceeds received exceed both $40,831 and             
          $33,408.                                                                    





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