John Favia - Page 5




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          a capital loss in the year in which the security becomes                    
          worthless.  Sec. 165(g).                                                    
               A mere shrinkage, however, in the value of a security does             
          not give rise to a loss deduction for the taxpayer under section            
          165(a) if, on the date of the claimed loss, the security has any            
          recognizable value.  Sec. 1.165-4(a), Income Tax Regs.                      
               The worthlessness and the taxable year in which a security             
          becomes worthless constitute questions of fact on which                     
          petitioner has the burden of proof.1  Boehm v. Commissioner, 326            
          U.S. 287, 294 (1945).                                                       
               In order for a security to be treated as worthless, the                
          security is required to have no present or foreseeable value.  In           
          Morton v. Commissioner, 38 B.T.A. 1270, 1278-1279 (1938), affd.             
          112 F.2d 320 (7th Cir. 1940), we stated as follows:                         

                           The ultimate value of stock, and                           
                    conversely its worthlessness, will depend not                     
                    only on its current liquidating value, but                        
                    also on what value it may acquire in the                          
                    future through the foreseeable operations of                      
                    the corporation.  Both factors of value must                      
                    be wiped out before we can definitely fix the                     
                    loss.  If the assets of the corporation                           
                    exceed its liabilities, the stock has a                           
                    liquidating value.  If its assets are less                        
                    than its liabilities but there is a                               

          1     The Internal Revenue Service Restructuring and Reform Act             
          of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726, added sec.              
          7491, which in certain circumstances places the burden of proof             
          on respondent.  Sec. 7491 is applicable, however, to court                  
          proceedings arising in connection with examinations commencing              
          after July 22, 1998.  Accordingly, sec. 7491 is inapplicable to             
          the instant case.                                                           




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