Allen v. Commissioner

16 T.C. 163, 1951 U.S. Tax Ct. LEXIS 301

• Court: United States Tax Court
• Decided: January 24, 1951
• Docket: Docket No. 22707
• Status: Published

Opinions

OPINION.

Van Fossan, Judge:

On the above facts, petitioner asks us to find that she sustained a loss by theft in the amount of $2,400, the value of the brooch in question. (Section 23 (e) (3).) This, we are unable to do.

There is no question as to the credibility of the witnesses and, excepting the conclusions and inferences of fact, there is no dispute about the evidence. Stripped to essentials, the facts are that petitioner owned a brooch which she lost in some manner while visiting the Metropolitan Museum of Art in New York. She does not, and cannot, prove that the pin was stolen. All we know is that the brooch disappeared and was never found by, or returned to, petitioner.

Petitioner has the burden of proof. This includes presentation of proof which, absent positive proof, reasonably leads us to conclude that the article was stolen. 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. If the evidence is in equipoise preponderating neither to the one nor the other conclusion, petitioner has not carried her burden.

In the case at bar we cannot find as a fact that a theft occurred. The reasonable inferences from the evidence point otherwise. It is noted that there is no evidence as to the nature of the clasp by which the pin was fastened to petitioner’s dress. We do not know whether it was a “safety clasp” or merely a simple clasp. Nor is there any evidence that petitioner was jostled in the crowd (the usual occurrence when a theft from the person is attempted). If the pin was properly equipped (as may be assumed from its value) with a safety clasp and securely fastened to petitioner’s dress, the question arises as to how it could have been removed without damage to the dress, there being no testimony as to any such damage. If it were essential to the disposition of this case that we find either that the pin was lost by theft or was lost by inadvertence, our finding on the record made would be that it was lost by some mischance or inadvertence— not by theft. The inference that such was true is the more readily drawn. However, we need not go so far. We need only hold that petitioner, who had the burden of proof, has not established that the loss was occasioned by theft, a sine qua non to a decision in her favor under section 23 (e) (3).

We see no merit in petitioner’s argument based on the New York Criminal Statutes which hold that the finder of a lost article shall report the finding and make certain efforts toward locating the owner. These statutes are neither binding nor persuasive here. There is no evidence that the pin was ever found and thus the New York statute could not be invoked against anyone. This argument but emphasizes the lack of proof which characterizes the record in this case.

We sustain the respondent’s determination.

Reviewed by the Court.

Decision will be entered for the respondent.