Fortunato J. Mendes - Page 11

                                       - 11 -                                         
          been verified with petitioner by telephone, and a confirmation of           
          the sale would have been mailed to him.  Mr. McDonnell further              
          testified that, in accordance with standard brokerage industry              
          policy and standard Merrill Lynch firm policy (and absent                   
          specific instructions to the contrary), if petitioner had                   
          requested payment of the sale proceeds from a sale of securities,           
          a check would have been made payable to him as the owner of                 
          record on the statement.6  He stated that such checks are sent by           
          regular, first class U.S. mail and that, if the check “expires”             
          (i.e., it is not cashed within a certain period of time), the               
          amount of the check is redeposited to the customer’s account.               
               Section 165 allows an individual taxpayer to deduct a theft            
          loss in the year during which the taxpayer discovers such loss.             
          See sec. 165(a), (c)(1), (e).  Petitioner bears the burden of               
          proving that a theft (and not, for instance, merely a mysterious            
          disappearance of the property) has occurred and that the                    
          requirements of section 165 have been met.  See Rule 142(a);                
          Jacobson v. Commissioner, 73 T.C. 610, 613 (1979); Allen v.                 
          Commissioner, 16 T.C. 163, 166 (1951) (absent positive proof, a             


               6  Mr. McDonnell testified that, because Merrill Lynch was             
          required to retain records of customer transactions for only 7              
          years, he was unable to produce copies of the transaction                   
          confirmation slip, the canceled check, or any other records                 
          specifically related to the 1988 sale of petitioner’s 240 shares            
          of IBM.  In fact, he was “amazed” that the 1988 Merrill Lynch               
          statements pertaining to petitioner’s account were still                    
          available in Merrill Lynch’s microfiche library.                            





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011