OPINION
Dawson, Judge:
Respondent determined the following Federal income tax deficiencies against the petitioner:
Taxable year ended Deficiency
Sept. 30, 1962_ $5, 270. 00
Sept. 30, 1963_ 56, 115. 00
Sept. 30, 1964_ 124, 250. 00
Sept. 30, 1965_ 5, 309. 50
Two adjustments made in respondent’s notice of deficiency have been conceded by petitioner. The only issue presented for our decision is whether the petitioner is entitled to deduct under section 165, I.R.C. 1954,1 its total embezzlement loss of $605,116.52 in its taxable year ended September 30, 1965, the year it discovered the loss, or whether the loss should be limited to $216,216.52 by disallowing the amounts ($388,900) attributable to the taxable years ended September 30, 1958 through 1961, with respect to which respondent is barred by the statute of limitations from adjusting the tax and for which the petitioner has derived a tax benefit or advantage.
All of the facts have been stipulated, are so found, and are incorporated herein by this reference.
B. C. Cook & Sons, Inc. (herein called petitioner), is a Florida corporation having its principal office in Haines City, Fla., when it filed its petition in this proceeding. Its U.S. corporation income tax returns for the taxable years in question were filed with the district director of internal revenue at Jacksonville, Fla.
At all times pertinent to this proceeding the petitioner was engaged in the business of acquiring citrus fruit for distribution to processing plants.
During its taxable year ended September 30, 1965, the petitioner discovered that an employee, through a series of fictitious purchases, bad embezzled from it substantial sums of money over an 8-year period extending from 1958 through 1965. The amounts embezzled in each of the petitioner’s taxable years ended (FYE) September 30, 1958, through September 30, 1965, are as follows:
FYE Sept. SO— Amount embezzled
1958... $49, 750. 00
1959_ 107, 150. 00
1960_ 111, 750. 00
1961_ 132, 750. 00
1962_ 103, 250. 00
1963_ 100, 087. 50
1964_ 165, 625. 00
1965_ 101, 850. 00
Total_ 872,212.50
The employee had been employed by petitioner as a bookkeeper at the time it was organized in November 1956. Among other things, he was authorized to write checks, place them before a corporate officer for signature, and enter the expenditure in the corporate books of accounts.
Commencing with a check dated January 20, 1958, and continuing through January 11, 1965, the employee caused checks to be drawn on the petitioner’s bank accoiint and issued to “J. C. Jackson,” a fictitious name used by the employee. The checks were in turn deposited by the employee in a local bank to an account styled “J. C. Jackson,” which was in reality owned by the employee who ultimately received the proceeds of the checks.
The checks so drawn were purportedly in payment of fruit purchases. Accordingly, the petitioner’s books reflected these amounts as additional fruit purchases although no fruit was actually received, with the .result that the petitioner’s cost of goods sold was increased by a corresponding amount. The petitioner’s gross income for each taxable year involved was in this manner similarly reduced and hence its taxable income decreased by an amount which corresponded with the amounts embezzled in each of those taxable years.
Of the total amount of $872,212.50 embezzled, the petitioner recovered from the employee the amount of $254,595.98 during its taxable year ended September 30, 1965.
On its Federal corporation income tax return filed for the taxable year ended September 30, 1965, the petitioner claimed as a deduction for embezzlement loss the amount of $605,116.52, computed as follows:
FYE Sept. SO— Amount of loss
1958_$37,250.00
1959___ 107, 150. 00
1960_ 111,750.00
1961___ 132,750.00
1962_ 103,250.00
1963_____— 100, 087. 50
1964_ 165,625.00
1965_ 101,850.00
Total_ 859,712.50
Less recovery_ 254, 595. 98
Loss claimed_ 605, 116. 52
The amount of loss so claimed corresponds with the amount of the checks except for the taxable year ended September 30, 1958. For that year the checks totaled $49,750 rather than the amount of $37,250, as set out on the petitioner’s return filed for its taxable year ended September 30, 1965. This is a difference of $12,500 and is represented by check number 1515 in that amount issued on March 3, 1958, to “J. C. Jackson.”
The return filed by the petitioner for its taxable year ended September 30, 1965, reflected a net operating loss in the amount of $383,923.65. Of this amount, $17,567 was deducted as a net operating loss carryback in the petitioner’s taxable year ended September 30, 1962; $118,490 was deducted as a net operating loss carryback in the petitioner’s taxable year ended September 30, 1963; and $247,867 was deducted as a net operating loss carryback in the petitioner’s taxable year ended September 30, 1964.
In his statutory notice of deficiency respondent determined that the deduction of $605,116.52 claimed as an embezzlement loss on the petitioner’s return filed for its taxable year ended September 30, 1965, was not allowable to the extent of $388,900. The amount disallowed by respondent was attributable to embezzlement in the following taxable years 2 and in the following amounts:
FYE Sept. SO—
1958_ $37,250
1959_ 107, 150
1960_ 111,750
1961___ 132,750
Total_ 388,900
Petitioner contends that it should be allowed to deduct the full amount ($605,116.52) of the unrecovered embezzled funds. Since the embezzlement was discovered during the taxable year ended September 80, 1965, petitioner argues that it properly claimed a deduction under section 165(a) and (e) 3 of the Code for that taxable year. Section 1.165-8(d), Income Tax Regs., provides that the term “theft” includes embezzlement. In other words, the petitioner simply says that its claimed embezzlement loss deduction falls squarely within the plain language of the statute.
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OPINION
Dawson, Judge:
Respondent determined the following Federal income tax deficiencies against the petitioner:
Taxable year ended Deficiency
Sept. 30, 1962_ $5, 270. 00
Sept. 30, 1963_ 56, 115. 00
Sept. 30, 1964_ 124, 250. 00
Sept. 30, 1965_ 5, 309. 50
Two adjustments made in respondent’s notice of deficiency have been conceded by petitioner. The only issue presented for our decision is whether the petitioner is entitled to deduct under section 165, I.R.C. 1954,1 its total embezzlement loss of $605,116.52 in its taxable year ended September 30, 1965, the year it discovered the loss, or whether the loss should be limited to $216,216.52 by disallowing the amounts ($388,900) attributable to the taxable years ended September 30, 1958 through 1961, with respect to which respondent is barred by the statute of limitations from adjusting the tax and for which the petitioner has derived a tax benefit or advantage.
All of the facts have been stipulated, are so found, and are incorporated herein by this reference.
B. C. Cook & Sons, Inc. (herein called petitioner), is a Florida corporation having its principal office in Haines City, Fla., when it filed its petition in this proceeding. Its U.S. corporation income tax returns for the taxable years in question were filed with the district director of internal revenue at Jacksonville, Fla.
At all times pertinent to this proceeding the petitioner was engaged in the business of acquiring citrus fruit for distribution to processing plants.
During its taxable year ended September 30, 1965, the petitioner discovered that an employee, through a series of fictitious purchases, bad embezzled from it substantial sums of money over an 8-year period extending from 1958 through 1965. The amounts embezzled in each of the petitioner’s taxable years ended (FYE) September 30, 1958, through September 30, 1965, are as follows:
FYE Sept. SO— Amount embezzled
1958... $49, 750. 00
1959_ 107, 150. 00
1960_ 111, 750. 00
1961_ 132, 750. 00
1962_ 103, 250. 00
1963_ 100, 087. 50
1964_ 165, 625. 00
1965_ 101, 850. 00
Total_ 872,212.50
The employee had been employed by petitioner as a bookkeeper at the time it was organized in November 1956. Among other things, he was authorized to write checks, place them before a corporate officer for signature, and enter the expenditure in the corporate books of accounts.
Commencing with a check dated January 20, 1958, and continuing through January 11, 1965, the employee caused checks to be drawn on the petitioner’s bank accoiint and issued to “J. C. Jackson,” a fictitious name used by the employee. The checks were in turn deposited by the employee in a local bank to an account styled “J. C. Jackson,” which was in reality owned by the employee who ultimately received the proceeds of the checks.
The checks so drawn were purportedly in payment of fruit purchases. Accordingly, the petitioner’s books reflected these amounts as additional fruit purchases although no fruit was actually received, with the .result that the petitioner’s cost of goods sold was increased by a corresponding amount. The petitioner’s gross income for each taxable year involved was in this manner similarly reduced and hence its taxable income decreased by an amount which corresponded with the amounts embezzled in each of those taxable years.
Of the total amount of $872,212.50 embezzled, the petitioner recovered from the employee the amount of $254,595.98 during its taxable year ended September 30, 1965.
On its Federal corporation income tax return filed for the taxable year ended September 30, 1965, the petitioner claimed as a deduction for embezzlement loss the amount of $605,116.52, computed as follows:
FYE Sept. SO— Amount of loss
1958_$37,250.00
1959___ 107, 150. 00
1960_ 111,750.00
1961___ 132,750.00
1962_ 103,250.00
1963_____— 100, 087. 50
1964_ 165,625.00
1965_ 101,850.00
Total_ 859,712.50
Less recovery_ 254, 595. 98
Loss claimed_ 605, 116. 52
The amount of loss so claimed corresponds with the amount of the checks except for the taxable year ended September 30, 1958. For that year the checks totaled $49,750 rather than the amount of $37,250, as set out on the petitioner’s return filed for its taxable year ended September 30, 1965. This is a difference of $12,500 and is represented by check number 1515 in that amount issued on March 3, 1958, to “J. C. Jackson.”
The return filed by the petitioner for its taxable year ended September 30, 1965, reflected a net operating loss in the amount of $383,923.65. Of this amount, $17,567 was deducted as a net operating loss carryback in the petitioner’s taxable year ended September 30, 1962; $118,490 was deducted as a net operating loss carryback in the petitioner’s taxable year ended September 30, 1963; and $247,867 was deducted as a net operating loss carryback in the petitioner’s taxable year ended September 30, 1964.
In his statutory notice of deficiency respondent determined that the deduction of $605,116.52 claimed as an embezzlement loss on the petitioner’s return filed for its taxable year ended September 30, 1965, was not allowable to the extent of $388,900. The amount disallowed by respondent was attributable to embezzlement in the following taxable years 2 and in the following amounts:
FYE Sept. SO—
1958_ $37,250
1959_ 107, 150
1960_ 111,750
1961___ 132,750
Total_ 388,900
Petitioner contends that it should be allowed to deduct the full amount ($605,116.52) of the unrecovered embezzled funds. Since the embezzlement was discovered during the taxable year ended September 80, 1965, petitioner argues that it properly claimed a deduction under section 165(a) and (e) 3 of the Code for that taxable year. Section 1.165-8(d), Income Tax Regs., provides that the term “theft” includes embezzlement. In other words, the petitioner simply says that its claimed embezzlement loss deduction falls squarely within the plain language of the statute.
The only position taken by the respondent is this: The law prohibits a taxpayer from taking more than a single deduction for the same item; and where, as here, a taxpayer has previously derived a tax benefit or advantage through an erroneous deduction or otherwise, he may not deduct the same amount in a subsequent year after the Commissioner is barred by the statute of limitations from adjusting the tax for the prior year. Respondent relies heavily on Charles Ilfeld Co. v. Hernandez, 292 U.S. 62, 68 (1934); United States v. Skelly Oil Co., 394 U.S. 678, 685 (1969); and R. G. Robinson, 12 T.C. 246 (1949), affd. 181 F. 2d 17, 18-19 (C.A. 5, 1950).
For the first time in its reply brief the petitioner asserted that the “proper procedure to be followed, if respondent believes that petitioner has received a double benefit, is set forth in sections 1311-1315 of the Internal Revenue Code of 1954.” Petitioner then points out the prerequisites to effectuate the mitigation-of-limitations provisions of sections 1311-1315 as to otherwise closed years, i.e., that there must, in effect, be a “determination” by this Court that the claimed losses are allowable in petitioner’s taxable year ended September 30, 1965; that petitioner must have taken a position herein which is inconsistent with a position taken with respect to the same item in another taxable year; and that respondent must follow all of the statutory procedures for assessment, including the requirement that a notice of deficiency be mailed to petitioner prior to assessment, if respondent wishes to resort to the mitigation provisions. Petitioner cites,; among other cases, Kenosha Auto Transport Corporation, 28 T.C. 421, 425-426 (1957).4
It is perfectly clear that the allowance of a deduction in the taxable year ended September 30, 1965, for the full amount of the unrecovered embezzled funds will result in a double tax benefit because of the amounts previously written off by the petitioner as cost of goods sold in prior years. But the key to the decision here lies in the fact that the petitioner erroneously deducted nonexistent purchases in computing its cost of goods sold for prior years. Respondent is seeking in this proceeding to make adjustments for those prior errors after the statute of limitations has run for the earlier years.
The prohibition against double deductions evolved in the context of cases where the taxpayer correctly treated an item in an earlier barred year and received a tax benefit therefrom and then sought to obtain a similar tax benefit in a later year. This was the case in Charles Ilfeld Co. v. Hernandez, supra; and in United States v. Shelly Oil Co., supra, cited by the respondent. And in R. G. Robinson, supra, this Court carefully pointed out that it was not convinced that the taxpayer incorrectly treated the items in question on his returns for the earlier years (see 12 T.C. at 249) and the Court of Appeals expressly recognized this significant fact (see 181 F.2d at 18) .5 Furthermore, in the Robinson case the taxpayer took certain deductions which fully depleted his tax basis in certain timber rights. In 1942 he sustained a casualty loss equal to the value of the timber rights. He then attempted to claim a casualty loss deduction for the value loss which was sustained. However, since his basis in the timber rights had been reduced to zero as the result of prior deductions which appeared to be properly claimed, there was no basis remaining to be deducted at the time the loss was incurred. By contrast, the present case involves the embezzlement of cash which is neither depreciable nor depletable. Hence the Robinson case is distinguishable on its facts.
If we were to apply the doctrine prohibiting double deductions in a situation such as this, where the petitioner’s action in earlier years was erroneous, we would turn that doctrine into a sword to pierce the shield of repose provided by the statute of limitations, and there would appear to be little need for the mitigation provisions applicable to double deductions contained in sections 1311-1315, and particularly section 1312(2). Cf. Adolph B. Canelo III, 53 T.C. 217, 226-227 (1969), affirmed per curiam 447 F.2d 484 (C.A. 9, 1971). Moreover, a deduction which is incorrectly taken in one year should be corrected by eliminating it from the year in which it was taken. Lucas v. American Code Co., 280 U.S. 445 (1930); Brown v. Helvering, 291 U.S. 193 (1934). It should not be used as an offset in another year because that would take it out of the proper accounting period. See Commissioner v. Mnookin’s Estate, 184 F. 2d 89, 92 (C.A. 8, 1950), affirming 12 T.C. 744 (1949).
When previously faced with a similar question, this Court held that the deduction must be allowed in its proper year and that the Commissioner’s recourse is through the correction procedures set forth in sections 1311 through 1315. Kenosha Auto Transport Corporation, supra; and North Carolina Granite Corp., 43 T.C. 149, 168 (1964). In the Kenosha case we noted that this approach seemed necessary if recognition is to be given to the annual accounting period principle and the purpose underlying the statute of limitations. We commented at page 425:
Our jurisdiction attached only to the year before us (in this case, 1948) and the question before us is solely the propriety or impropriety of a deduction taken in that year. There is no basis for departure from these fundamental principles on so-called equitable grounds. No factor of estoppel is presented. Moreover, as indicated infra, it appears that respondent has an adequate remedy under section 1311, et seq., of the Internal Revenue Code of 1954.
Accordingly, we hold under these circumstances that the petitioner is entitled to an embezzlement loss deduction in the amount of $605,-116.52 for its taxable year ended September 30, 1965. It therefore follows that the petitioner is also entitled to net operating loss carry-back deductions for the taxable years ended September 30, 1962, September 30, 1963, and September 30, 1964.
Reviewed by the Court.
Decision will be entered under Rule 50.