- 6 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 NextLast modified: November 10, 2007