River City Ranches #1 Ltd., Leon Shepard, Tax Matters Partner - Page 51

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          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 is                      






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