- 7 - 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 directPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 NextLast modified: March 27, 2008