Bennett Geiger - Page 12

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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               
               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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