Vincent J. Boido, Jr. and Christine P. Boido - Page 11

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          debt is worthless and uncollectible and that legal action to                
          enforce payment would in all probability not result in the                  
          satisfaction of execution on a judgment, a showing of these facts           
          will be sufficient evidence of the worthlessness of the debt.”              
          Sec. 1.166-2(b), Income Tax Regs.  No deduction is allowed for a            
          debt so long as any part of the debt is recoverable during the              
          taxable year.  Sec. 1.166-5(a)(2), Income Tax Regs.                         
               Petitioner contends that he has a valid and enforceable                
          claim against Ms. Thiellesen under the equitable doctrine of                
          unjust enrichment, and that this claim was wholly worthless in              
          the year 2000.11  On the other hand, respondent contends that               
          petitioner only has an unadjudicated and unliquidated claim                 
          against Ms. Thiellesen because he failed to obtain a judgment               
          against her.12  Respondent further contends that, if the Court              
          finds that petitioner has a legal claim against Ms. Thiellesen,             
          the claim was not wholly worthless because petitioner could                 
          recover the truck from Ms. Thiellesen under a constructive                  



               11  Petitioner seeks restitution on the basis of unjust                
          enrichment, which is a form of equitable relief.  See Dumas v.              
          Auto Club Ins. Association, 473 N.W.2d 652, 663 (Mich. 1991);               
          Restatement, Restitution, sec. 1 (1937).                                    
               12  Generally, a claim arising out of a breach of contract,            
          prior to being reduced to judgment, does not create such a                  
          debtor-creditor relationship because the injured party has only             
          an unliquidated claim for damages.  Lewellyn v. Elec. Reduction             
          Co., 275 U.S. 243, 246 (1927); Proesel v. Commissioner, 77 T.C.             
          992, 1002 (1981) (and cases cited therein).                                 





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