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With respect to when petitioner discovered the alleged
custom house theft loss, petitioner claims that, because of the
ongoing nature of Mona Builders’ actions that resulted in the
alleged custom house theft loss, he became aware of different
aspects of that loss at different times. According to peti-
tioner, for purposes of section 165 his discovery of the alleged
custom house theft loss occurred in October 20005 when he claims
he first became aware of certain aspects of that loss by deter-
mining that Mona Builders had (1) failed to give him credit for
certain amounts by which the allowance for bricks in the custom
house contract exceeded the amounts that Mona Builders actually
paid for such bricks (alleged brick theft) and (2) not installed
certain humidifiers as provided for in the custom house contract
(alleged humidifier theft). Petitioner does not cite, and we
have not found, any authority supporting petitioner’s contention
that for purposes of section 165 his discovery of the alleged
custom house theft loss occurred when he first became aware of
any aspect of that loss.
Assuming arguendo that petitioner had carried his burden of
establishing that it is appropriate for purposes of section 165
5At trial, on direct examination petitioner testified that
the alleged brick theft occurred in October 2004. According to
petitioner, that was when he had a conversation with Mona Build-
ers concerning the price that Mona Builders had charged Ms. Davis
and petitioner for bricks used in the custom house. However, the
record establishes that the custom house litigation counterclaim
was settled in May 2003.
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