- 29 - C. Lack of Reasonable Certainty No Recovery Can Be Made Even if the embezzlement claim belonged to petitioners and they proved that theft occurred, it could not be ascertained with reasonable certainty that there was no reasonable prospect of recovery from Mr. Kanz, as required by section 1.165-1(d)(3), Income Tax Regs. There is a reasonable prospect of recovery when the taxpayer has bona fide claims for recoupment from third parties or otherwise, and when there is a substantial possibility that such claims will be decided in his favor. Estate of Scofield v. Commissioner, 266 F.2d 154, 159 (6th Cir. 1959), affg. in part and revg. in part 25 T.C. 774 (1956); Ramsey Scarlett & Co. v. Commissioner, 61 T.C. 795, 811-812 (1974), affd. 521 F.2d 786 (4th Cir. 1975). Mr. Kanz told petitioners he had no assets or inheritance to pay the judgment, and they claim they believed the testimony of a man who allegedly embezzled more than $186,000 from them. Petitioners have not provided any independent evidence that Mr. Kanz no longer has any assets, net worth, or opportunity for an inheritance with which to pay the judgment. To this date, more than 8 years after the collateral agreement was executed, Mr. Kanz has not fulfilled his part of the bargain. Yet, petitioners have not attempted to collect the judgment from Mr. Kanz. Petitioners have not satisfied their burden of proving it couldPage: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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