River City Ranches #1 Ltd., Leon Shepard, Tax Matters Partner - Page 81

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          partnership level, which they have not.  Assuming, arguendo, that            
          petitioners had proven that the partnerships were the victims of             
          a partnership level theft, petitioners still failed to satisfy               
          the year of discovery element required to claim a theft loss                 
          deduction.                                                                   
               Petitioners acknowledge that pursuant to section 165(e), a              
          taxpayer may deduct a theft loss only in the tax year in which               
          the taxpayer discovers the loss.  Further, petitioners concede               
          that the partnerships’ discovery of the alleged thefts occurred              
          in 1997 or 1998, which is after the last year at issue in this               
          case.  However, petitioners assert that respondent is equitably              
          estopped from denying the theft loss deduction in each of the                
          years at issue regardless of the actual year of discovery.  In               
          addition, petitioners argue that under Rod Warren Ink v.                     
          Commissioner, 912 F.2d 325 (9th Cir. 1990), this Court “may                  
          depart from the literal meaning of [section 165(e)] regarding the            
          year of discovery in order to avoid unintended negative                      
          consequences to the taxpayer and to effectuate Congress’ intent.”            
               Petitioners’ sole purpose in seeking a deviation from the               
          discovery date requirements of section 165(e) to deduct the theft            
          losses in each of the years at issue is to distribute losses from            
          the partnerships to the individual partners, thereby reducing the            
          amount of interest partners owe on deficiencies related to the               
          TEFRA partnership adjustments.                                               






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