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testimony” and usually “must be proved by the reasonable
inferences shown by the evidence and the surrounding
circumstances.” State v. Ortiz, 563 P.2d 113, 116 (N.M. Ct. App.
1977). Finally, petitioners must prove a theft under applicable
State law only by a preponderance of the evidence, not beyond a
reasonable doubt. See Allen v. Commissioner, 16 T.C. 163, 166
(1951) (“If the reasonable inferences from the evidence point to
theft, the proponent is entitled to prevail. If the contrary be
true and reasonable inferences point to another conclusion, the
proponent must fail.”).
Petitioners have fallen short of proving that Mr. Green
possessed the specific intent to cheat or deceive them when he
took their money in exchange for building their house. To begin
with, Mr. Green’s general representations in his promotional
materials regarding the quality of his work amounted to no more
than sales talk, or puffing.6 For instance, Mr. Green’s
statements in his promotional materials that his houses are
“built with unyielding allegiance to quality and craftsmanship”
and that “As a builder, James Green is unequalled” merely
represented Mr. Green’s opinion of his own work. Such
statements, in this context, do not constitute fraud.
6 “‘“Puffing” means an exaggerated commendation of wares or
worth in communications addressed to the public or to a class or
group.’” West v. Commissioner, 88 T.C. 152, 163 (1987) (quoting
Utah Code Ann. sec. 76-6-405 (1978)).
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Last modified: March 27, 2008