- 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