Stephen P. Pacileo - Page 6




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          that a theft, as defined by local law, occurred.  See Viehweg v.            
          Commissioner, 90 T.C. 1248, 1253 (1988); Luman v. Commissioner,             
          79 T.C. 846, 860 (1982).  A loss attributable to a mysterious               
          disappearance of property does not qualify for deduction as a               
          theft loss.  See Jacobson v. Commissioner, 73 T.C. 610, 613                 
          (1979).                                                                     
               Petitioner claimed a theft loss deduction for property left            
          behind when he separated from Ms. Stephens in January 1998.  At             
          trial, petitioner’s explanation of the circumstances surrounding            
          the loss of this property suggest, at best, that the property               
          mysteriously disappeared.1  Furthermore, his testimony at trial             
          was in sharp contrast to his testimony at the deposition, where             
          he testified that Ms. Stephens sold the property.  Nothing in the           
          record suggests a theft has occurred under Texas law.  See Tex.             
          Penal Code Ann. sec. 31.03 (Vernon 2002); Tex. Fam. Code Ann.               
          secs. 3.001-3.003 (Vernon Supp. 2002).  Therefore, petitioner is            
          not entitled to the theft loss deduction here in dispute.                   
          Respondent’s determination disallowing the theft loss deduction             
          claimed on petitioner’s 1998 Federal income tax return is                   
          sustained.                                                                  




               1 With respect to the items allegedly stolen, petitioner               
          testified at trial: “I don’t know what happened to them.  I know            
          I don’t have them.”                                                         






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