- 8 - 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 thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 NextLast modified: November 10, 2007