-8-
Olympic Radio & Television, Inc., 349 U.S. 232, 235 (1955), and
Jones v. Commissioner, 25 T.C. 1100, 1104 (1956), revd. and
remanded on other grounds 259 F.2d 300 (5th Cir. 1958), for the
requirement that a taxpayer seeking to deduct a net operating
loss (NOL) carryover must establish that the NOL was properly
applied in the later year). To the extent that petitioner has
recognized before 1997 the full capital loss claimed on the stock
for 1993, he has recovered his entire basis in that stock so that
he now lacks any basis to deduct as a theft loss for 1997. See,
e.g., Carloate Indus., Inc. v. United States, 354 F.2d 814 (5th
Cir. 1966); United States v. Koshland, 208 F.2d 636 (9th Cir.
1953); Robinson v. Commissioner, 12 T.C. 246 (1949), affd. 181
F.2d 17 (5th Cir. 1950). Given the record at hand, we cannot
determine in any manner what portion, if any, of the capital loss
has not been recognized.2
We conclude that petitioner is not entitled to any of the
claimed theft loss deduction and hold for respondent. In so
concluding, we have considered all arguments made by the parties
2 Petitioner testified that he has never received any
benefit from his deduction of the $2,816,540 for 1993. On the
basis of the record as a whole, including our observation and
perception of petitioner while he testified at trial, we find
this testimony incredible and decline to rely upon it.
Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 84
(2000), affd. 299 F.3d 221 (3d Cir. 2002).
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