Michael E. Yoakum - Page 5

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          years.  Sec. 172(b)(1)(A), (2), and (3).2  Petitioner, as a                 
          taxpayer attempting to deduct an NOL, bears the burden of                   
          establishing both the existence of the NOL and the amount of any            
          NOL that may be carried over to the subject years.3  See Rule               
          142(a)(1); United States v. Olympic Radio & Television, Inc.,               
          349 U.S. 232, 235 (1955); Keith v. Commissioner, 115 T.C. 605,              
          621 (2000).  As part of that burden, petitioner must prove that             
          he is entitled to deduct his claimed theft loss.  New Colonial              
          Ice Co. v. Helvering, 292 U.S. 435, 440 (1934); see also Jones v.           
          Commissioner, 24 T.C. 525, 527 (1955); Allen v. Commissioner,               
          16 T.C. 163, 166 (1951).  Deductions are a matter of legislative            
          grace and not a matter of right.  United States v. Olympic Radio            




               2 The Taxpayer Relief Act of 1997, Pub. L. 105-34, sec.                
          1082(a)(1)and (2), 111 Stat. 950, amended sec. 172(b)(1)(A) to              
          require generally a 2-year carryback and a 20-year carryover for            
          NOLs incurred in taxable years beginning after Aug. 5, 1997.                
          Petitioner in his brief claims without discussion that the                  
          20-year rule applies.  We disagree.  The NOL at issue, if in fact           
          incurred, was incurred well before the effective date of the                
          20-year rule.                                                               
               3 Sec. 7491(a) was added to the Code by the Internal Revenue           
          Service Restructuring and Reform Act of 1998, Pub. L. 105-206,              
          sec. 3001(c), 112 Stat. 727, effective for court proceedings                
          arising from examinations commencing after July 22, 1998.  Sec.             
          7491(a)(1) provides that the burden of proof shifts to the                  
          Commissioner in specified circumstances.  Petitioner makes no               
          argument that sec. 7491(a)(1) applies to this case, and we                  
          conclude that it does not.  See, e.g., sec. 7491(a)(2) (sec.                
          7491(a)(1) applies with respect to an issue only if the taxpayer            
          meets certain requirements); see also Mediaworks, Inc. v.                   
          Commissioner, T.C. Memo. 2004-177.                                          




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