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purposes of section 165 depends on the law defining the crime of
theft in the jurisdiction where the alleged theft occurred.
Monteleone v. Commissioner, 34 T.C. 688, 692 (1960).
Fla. Stat. Ann. sec. 812.014 (West 2000) provides:
(1) A person commits theft if he or she knowingly
obtains or uses, or endeavors to obtain or to use, the
property of another with intent to, either temporarily
or permanently:
(a) Deprive the other person of a right to the
property or a benefit from the property.
(b) Appropriate the property to his or her own
use or to the use of any person not entitled to the
use of the property.
In the instant case, petitioner has failed to prove that a
theft occurred under Florida law. Despite producing, as multiple
exhibits at trial and on brief, several lists of checks from
BBTS,8 including those in response to respondent’s
interrogatories, petitioner has not provided the Court with any
credible documentation that supports a theft in the total amount
of $1,801,213, $704,500, or $564,711.9
8We note that several of these lists include information
about checks that are not a part of the record and are not in
evidence.
9For example, petitioner’s reply brief includes three lists
of checks. The list entitled “TOTAL Theft Loss” includes 427
checks with a total amount of $909,449.66. There is a “TOTAL
DOUBLE DATED CHECKS” list for each of the years 1996-2000, which
lists cumulatively include 275 checks totaling $593,940.76. The
list entitled “Missing Check Total Amount” includes 348 checks
totaling $762,810.34.
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Last modified: May 25, 2011