- 36 - from the theft of property. Sec. 165(a), (c)(3). Petitioners bear the burden of proving by a preponderance of the evidence that a theft actually occurred. Rule 142(a); Jones v. Commissioner, 24 T.C. 525, 527 (1955); Allen v. Commissioner, 16 T.C. 163, 166 (1951); Ginesky v. Commissioner, T.C. Memo. 1994- 551. To carry this burden of proof, section 165 requires petitioners to establish all the required elements of a theft loss. Yates v. Commissioner, T.C. Memo. 1988-565. First, petitioners must show that a theft occurred under the law of the jurisdiction wherein the alleged loss occurred. Monteleone v. Commissioner, 34 T.C. 688, 692 (1960). Second, petitioners must prove the amount of the theft loss. Gerstell v. Commissioner, 46 T.C. 161, 175 (1966); sec. 1.165-8(c), Income Tax Regs. Third, petitioners must establish the date that the loss from theft was discovered. Sec. 165(e); McKinley v. Commissioner, 34 T.C. 59, 63 (1960); sec. 1.165-8(a), Income Tax Regs. For purposes of section 165, “any loss arising from theft shall be treated as sustained during the taxable year in which the taxpayer discovers such loss.” Sec. 165(e); sec. 1.165- 8(a)(2), Income Tax Regs. However, if in the year of discovery there exists a claim for reimbursement with respect to which there is a reasonable prospect of recovery, only that portion of the loss not covered by that claim for reimbursement isPage: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
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