Paul A. and Marilyn J. Grothues - Page 13




                                       - 13 -                                         
          Issues 1 and 2.  Theft Loss Deductions; Deductions for Payments             
          of Corporate Employment Taxes and Interest Thereon                          
               Petitioners bear the burden of proving their entitlement to            
          deductions for theft losses and for payment of the corporate                
          employment taxes and interest thereon.  Rule 142(a); Welch v.               
          Helvering, 290 U.S. 111, 115 (1933).4  That this is a fully                 
          stipulated case does not alter the burden of proof, or the                  
          requirements otherwise applicable with respect to adducing proof,           
          or the effect of failure of proof.  Rule 122(b).                            
               Petitioners have claimed their theft loss deduction under              
          section 165(a) and their entitlement to deductions for paying the           
          corporate employment taxes and interest thereon under section               
          162(a).                                                                     
               Section 165(a) allows a deduction for “any loss sustained              
          during the taxable year and not compensated for by insurance or             
          otherwise.”  Under section 165(a), a theft loss deduction is                
          allowable for the year “in which the taxpayer discovers such                
          loss.”  Sec. 165(e).  If in the year of discovery the taxpayer              
          has a claim for reimbursement on which there is a reasonable                


               4Sec. 7491(a) places the burden of proof on the Commissioner           
          in certain circumstances in court proceedings arising from IRS              
          examinations beginning after July 22, 1998.  See Internal Revenue           
          Service Restructuring and Reform Act of 1998, Pub. L. 105-206,              
          sec. 3001(c), 112 Stat. 727.  By the same token, sec. 7491(c)               
          places the burden of production on the Commissioner with respect            
          to additions to tax.  Sec. 7491(a) and (c) does not apply in this           
          case because the examination of petitioners’ 1993, 1994, and 1995           
          tax years began on Jan. 8, 1996.                                            





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