Robert C. Davis, Jr. - Page 19

                                        -19-                                          
               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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