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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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