Searcy M. Ferguson, Jr., and Elizabeth L. Ferguson - Page 13

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          section 165, the term “theft” includes but is not limited to                
          larceny, embezzlement, and robbery.  Sec. 1.165-8(d), Income Tax            
          Regs.  The law of the jurisdiction where the alleged loss is                
          sustained governs the determination of whether a theft or                   
          embezzlement occurred.  Citron v. Commissioner, 97 T.C. 200, 207            
          (1991).  Tex. Penal Code Ann. sec. 31.03 (Vernon Supp. 2005),               
          defines theft as follows:                                                   
               Section 31.03.  Theft.                                                 
                    (a) A person commits an offense if he unlawfully                  
               appropriates property with intent to deprive the owner                 
               of property.                                                           
                    (b) Appropriation of property is unlawful if:                     
                    (1) it is without the owner’s effective consent;                  
                    * * *.                                                            
          Petitioners bear the burden of proving that a theft has occurred            
          and that the requirements of section 165 have been met.  See                
          Mendes v. Commissioner, 121 T.C. 308, 314-315 (2003).                       
               Petitioners have failed to show that Ms. Smith unlawfully              
          appropriated the diamond ring.  Although the corporation was not            
          a party to the divorce agreement, petitioner, the sole                      
          shareholder of the corporation, was a party to the divorce                  
          agreement.  The facts and circumstances demonstrate that either             
          petitioner consented to the designation of the diamond ring as              

               10(...continued)                                                       
               arise from fire, storm, shipwreck, or other casualty,                  
               or from theft.                                                         






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