James G. and Elaine A. Wanchek - Page 7




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          of proving that the determination is improper.  See Rule 142(a);            
          Welch v. Helvering, 290 U.S. 111, 115 (1933).  But see sec.                 
          7491(a).                                                                    
               Section 165(a) allows a taxpayer to deduct any loss                    
          sustained during the taxable year that is not compensated for by            
          insurance or otherwise.  Section 165(c)(3), which limits losses             
          for individuals, allows an individual taxpayer to deduct losses             
          of property arising from, among other things, theft.  The                   
          existence of a theft must be determined by reference to the law             
          of the jurisdiction in which the loss occurred; however, a                  
          criminal conviction is not necessary in order for a taxpayer to             
          demonstrate a theft loss.  See Monteleone v. Commissioner, 34               
          T.C. 688, 692-694 (1960).                                                   
               The New Mexico Criminal Code does not list “theft” as a                
          crime.  See McCullough v. Commissioner, T.C. Memo. 1990-653 (“The           
          New Mexico Criminal Code does not specifically make ‘theft’ a               
          crime.”).  Under New Mexico law, fraud, the crime Mr. Green                 
          allegedly committed against petitioners, is “the intentional                
          misappropriation or taking of anything of value that belongs to             
          another by means of fraudulent conduct, practices or                        
          representations.”  N.M. Stat. Ann. sec. 30-16-6 (LexisNexis Supp.           
          2006).  The elements of criminal fraud include “a specific intent           
          to cheat or deceive someone.”  State v. Higgins, 762 P.2d 904,              
          908 (N.M. Ct. App. 1988).  “Intent is seldom provable by direct             







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