Lazar Simov Kovachevich - Page 9




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         Income Tax Regs.  The amount of the deductible loss is limited to            
         the lower of:  (1) The fair market value of the property                     
         immediately before the theft reduced by its fair market value                
         immediately after the theft (i.e., zero); or (2) its adjusted                
         basis, and if the property was used in a trade or business or for            
         the production of income and the fair market value of the                    
         property immediately before the theft is less than its adjusted              
         basis, then its adjusted basis is treated as the amount of the               
         loss.  See secs. 1.165-7(b)(1), 1.165-8(c), Income Tax Regs.  And            
         with respect to property that is neither used in a trade or                  
         business nor for the production of income, the amount of the loss            
         is limited to that portion of the loss that is in excess of $100.            
         See sec. 1.165-8(c), Income Tax Regs.  Petitioner must establish,            
         inter alia, both the existence of a theft and the amount of the              
         claimed theft loss.  See Elliott v. Commissioner, 40 T.C. 304,               
         311 (1963).                                                                  
              In his Form 4684, petitioner failed to identify specifically            
         the items of property that he alleges were stolen.  Petitioner               
         also failed to establish the year that he discovered the theft.              
         He merely stated, in his Form 4684, that “Probably somethings                
         were stolen” when his storage shed was vandalized in 2001, and at            
         trial, he merely testified that “Somebody took” the 5,500 square             
         feet of marble he had stored.  Finally, petitioner failed to                 
         prove the amount of his loss by establishing the lower of the                







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