Harold A. Johnson - Page 9

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          constitutes a theft within the meaning of section 165.  See                  
          Johnson v. United States, supra at 909 (neither foreclosure by               
          bank on property to enforce its security interest nor bank’s                 
          exercise of its right of setoff against funds on deposit                     
          constituted a theft within the meaning of section 165); Rafter v.            
          Commissioner, 60 T.C. 1, 13 (1973) (neither seizure of automobile            
          pursuant to writ of attachment nor repossession of automobile                
          pursuant to a security interest constituted a theft within the               
          meaning of section 165; both the seizure and the repossession                
          were under color of law and no criminal intent was demonstrated),            
          affd. 489 F.2d 752 (2d Cir. 1974); see also Vance v.                         
          Commissioner, 36 T.C. 547, 551 (1961); Washington v.                         
          Commissioner, T.C. Memo. 1990-386, affd. without published                   
          opinion 930 F.2d 919 (6th Cir. 1991).  However, we need not                  
          decide either matter because the premise on which petitioner’s               
          theory rests is lacking.  In this regard we observe that the                 
          Florida court of appeal has consistently held that Judge Harris              
          had jurisdiction to issue the July 22, 1988, foreclosure order               
          and that the Florida Supreme Court has declined to review that               
          ruling.  We need go no further.9                                             

               9  In 2000, petitioner filed an action against Sandy                    
          Crawford, Clerk of Courts of Brevard County, Florida, in the U.S.            
          District Court for the Middle District of Florida, seeking to                
          declare the July 22, 1988, foreclosure order void.  The District             
          Court dismissed petitioner’s complaint.  On Feb. 16, 2001, the               
          U.S. Court of Appeals for the Eleventh Circuit affirmed the                  

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