Reinaldo & Ernestina Moracen - Page 7




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          and control over the annuity proceeds, even if her father also              
          claimed title to the proceeds.  See Rutkin v. United States,                
          supra.                                                                      
               Petitioner nevertheless argues that she is not liable for              
          tax because of the alleged wrongdoing of Mr. Knight and Mr.                 
          Falcon described in the District Court complaint.  Even if                  
          petitioner’s allegations are true, however, petitioner had the              
          freedom to use the annuity proceeds at will.  See Ianniello v.              
          Commissioner, supra.  Accordingly, petitioners must include in              
          gross income the $53,885 of annuity proceeds and the $1,136 of              
          interest income.                                                            
               Although it is not clear, petitioners may be arguing that              
          they suffered a theft loss.  Section 165(a) allows a deduction              
          for “any loss sustained during the taxable year and not                     
          compensated for by insurance or otherwise.”  A loss arising from            
          theft is treated as sustained during the year in which the                  
          taxpayer discovers such loss.  Sec. 165(e).  If in the year of              
          discovery there is a claim for reimbursement that has a                     
          reasonable prospect for recovery, a loss is not considered                  
          sustained until the tax year in which it can be ascertained with            
          reasonable certainty.  Secs. 1.165-1(d)(3), 1.165-8(a)(2), Income           
          Tax Regs.  Filing a lawsuit to recover a purported loss gives               
          rise to an inference that the taxpayer has such a claim.  Dawn v.           








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