Harold A. Johnson - Page 8




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          is not necessarily limited to, larceny, embezzlement, and                    
          robbery.  Sec. 1.165-8(d), Income Tax Regs.  The term covers “any            
          criminal appropriation of another’s property to the use of the               
          taker”.  Edwards v. Bromberg, 232 F.2d 107, 110 (5th Cir. 1956);             
          see Johnson v. United States, 291 F.2d 908, 909 (8th Cir. 1961)              
          (losses from theft within the meaning of section 165 “consist                
          only of takings and deprivations in which the element of criminal            
          intent has been involved”).                                                  
               On his Form 1040X for 1995, petitioner described the                    
          foreclosure of the Merritt Island property as a “judicial theft              
          of real estate”.8  However, at trial, petitioner testified as                
          follows:  “It’s a strange kind of loss.  It’s not really a theft             
          loss, because there was no criminal intent.  It’s a due process              
          theft.”                                                                      
               Petitioner’s theory is that Judge Harris lacked jurisdiction            
          to issue the July 22, 1988, foreclosure order because of the                 
          pendency of an appeal in respect of a nonfinal order; therefore,             
          in petitioner’s view, the foreclosure of the Merritt Island                  
          property pursuant to such order gave rise to a “due process                  
          theft”.                                                                      
               We question whether there is any such thing as a “due                   
          process theft” or, if there is, whether a “due process theft”                


               8  In his petition, petitioner described the foreclosure of             
          the Merritt Island property similarly, calling it a “judicial                
          theft of property”.                                                          





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