Popa v. Comm'r of Internal Revenue

• Decision Date: 22 October 1979
• Docket Number: Docket No. 3144-78.
• Citation: 73 T.C. 130
• Parties: JUSTIN POPA, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

73 T.C. 130

JUSTIN POPA, PETITIONER

v.COMMISSIONER of INTERNAL REVENUE, RESPONDENT

Docket No. 3144-78.

United States Tax Court

Filed October 22, 1979.

Petitioner maintained a home in Saigon. While he was away on a short business trip, the city fell to the North Vietnamese. He was never able to return and consequently claimed a $12,691 casualty loss on his 1975 return for the value of his goods left behind. Held: The unprecedented suddenness with which the United States left Saigon and Saigon's subsequent seizure by the North Vietnamese resulted in petitioner's loss of property in a casualty comparable to those set forth in sec. 165(c)(3), I.R.C. 1954. His inability to specify the precise manner in which his property was destroyed or pilfered was inevitable and understandable. Justin Popa, pro se.

Charles E. Samuel, for the respondent.

STERRETT, Judge:

By letter dated October 27, 1977, respondent determined a deficiency in petitioner's income taxes paid for his taxable year ended December 31, 1975, in the amount of $3,206.23. After concessions, the only issue for our decision is whether or not petitioner sustained a casualty loss within the meaning of section 165(c)(3), I.R.C. 1954, when various of his personal possessions, located in the Republic of Vietnam, were lost when the government of that nation fell to the North Vietnamese.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. The stipulation of facts and exhibits attached thereto are incorporated herein by this reference.

Petitioner Justin Popa timely filed his cash basis individual Federal income tax return for his taxable year ended December 31, 1975, with the Internal Revenue Service Center at Philadelphia, Pa. Mr. Popa's petition was timely filed with this Court on March 23, 1978.¹ At the time he filed his petition herein, Mr. Popa resided in Seoul, Korea.

During the calendar year 1975, petitioner resided in the Republic of Vietnam, serving as the vice president and general manager of the Transworld Services Corp., a foreign subsidiary of the American Trading Co., Inc., a United States corporation. On April 26, 1975, petitioner left Vietnam on one of his frequent business trips to Bangkok, Thailand. He took with him only a suitcase and a briefcase. Everything else petitioner owned, such as furniture, clothing, appliances, books, and stored food stuffs, was left at his rented home in an affluent part of Saigon. Within a matter of days after Mr. Popa's departure from the Republic of Vietnam, that country's government collapsed. United States nationals were ordered evacuated by the President. Petitioner was never able to return to that country and has no reasonable hope of ever recovering his property or its value. None of the goods lost were insured.

In his return, petitioner attached a list of the items which he claims he had to abandon in Vietnam. Petitioner assigned a total fair market value of $12,691 to these items and deducted this amount, less the $100 section 165(c)(3) floor, as a casualty loss on his calendar year 1975 return.²

Petitioner also deducted as a separate casualty loss a $500 loan he had made to an acquaintance in 1975. This loan became worthless during that calendar year.

OPINION

Respondent has conceded on brief that petitioner is entitled to deduct the full amount of his $500 loan in 1975 as a nonbusiness bad debt under the provisions of section 166(d). We agree that this is the proper treatment for that item. Thus, the only issue left for our decision is whether petitioner is entitled to a casualty loss deduction under section 165(c)(3)³ with respect to the loss of his household goods following the fall of Saigon to the North Vietnamese.

By contending that petitioner abandoned his property in Saigon, respondent concedes the fact that petitioner has suffered an economic loss. Further, we take it as implicit in respondent's memorandum brief that he also concedes that the loss took place when Saigon fell to enemy troops a day or two after petitioner left on a business trip to Bangkok. Nevertheless, respondent argues that petitioner's loss is nondeductible because it “does not constitute a casualty loss as is contemplated by I.R.C. section 165(c)(3).” Petitioner, on the other hand, argues that his loss in Vietnam was due to an “identifiable event of a sudden, unexpected and unusual nature” which event is ejusdem generis to the events specifically described in section 165(c)(3).

We believe that petitioner's loss of his goods is an “other casualty” within the meaning of section 165(c)(3). We think that petitioner's loss in the fall of Saigon is ejusdem generis to losses due to “fire, storm (and), shipwreck.” It was a sudden, cataclysmic, and devastating loss—-just the sort of loss section 165(c)(3) was designed to address. We have previously noted that the application of the principle of ejusdem generis—-

has been consistently broadened so that wherever unexpected, accidental force is exerted on property and the taxpayer is powerless to prevent application of the force because of the suddenness thereof or some disability, the resulting direct and proximate damage causes a loss which is like or similar to losses arising from the causes specifically enumerated in section 165(c)(3). (White v. Commissioner, 48 T.C. 430, 435 (1967).) As “the events giving rise to the undisputed loss here were sudden, unexpected, violent and not due to deliberate or willful actions by petitioner,” we conclude that these losses are deductible. See White v. Commissioner, supra at 433-434.

Our review of the cases convinces us that the only circumstance which could possibly have existed that would require us to deny petitioner his casualty loss would be that the property was confiscated under color of some hastily enacted local law.⁴ All the other possibilities (fire, theft, looting, etc.) are such that entitle him to a section 165(c)(3) casualty loss.

Respondent notes in his memorandum brief that “It is extremely doubtful that petitioner knows or will ever know what became of his property, since he was precluded from returning to Vietnam after the U.S. military evacuation.” We are, of course, well aware of the legion of cases that hold that the taxpayer must be put to his proof. However, in unusual circumstances such as this, we do not think it fair or reasonable to require that the taxpayer eliminate all possible noncasualty causes of his loss. We do not believe that we unduly stretch the bounds of judicial notice when we take into account the abruptness with which the United States abandoned Saigon and the stories with respect to the heavy damage to the city. A few days before the city fell, the United States Government was actively evacuating its citizens from the city. We can hardly fault petitioner for not remaining to determine whether his property was destroyed by gun fire, by looting, by fire, or some form of seizure by the remaining Saigon residents, the Vietcong, or the North Vietnamese. Certainly, petitioner's failure to return to the city was not a matter of personal choice. Nor can his inexactitude in this matter be held against him.⁵

We note here that the difficulties in South Vietnam did not arise from a revolution from within such as occurred recently in Iran and Nicaragua, thus making less likely the possibility that even a despotic law authorized the taking at issue.

Accordingly, we believe that the most reasonable conclusion, on the particular facts of this case, is that the property at issue was either destroyed or pilfered with criminal intent. Hence, we find the decision in Farcasanu v. Commissioner, 436 F.2d 146 (D.C. Cir. 1970), affg. 50 T.C. 881 (1968), relied on by respondent, to be inapposite.

We find more apposite our holding in Solt v. Commissioner, 19 T.C. 183 (1952), wherein we allowed a section 23(e) deduction (the 1939 Code predecessor to sec. 165) for the loss in 1954 of a farm, including a residence, attributable to confiscation by the Government of Hungary. See also Goldner v. Commissioner, 27 T.C. 455 (1956), although the progenitor to section 165(c)(2), as distinguished from section 165(c)(3), was at issue there.

We, therefore, conclude that petitioner suffered a section 165(c)(3) loss when he lost his goods in Vietnam.⁶ See Davis v. Commissioner, 34 T.C. 586, 587 (1960).

However, while we hold that petitioner sustained a casualty loss within the meaning of section 165(c)(3), we are not satisfied that petitioner has adequately documented the deductible amount of this loss. For example, petitioner claimed a $1,000 loss with respect to two air conditioners. The $1,000 claim represents petitioner's estimate of the fair market value of these items as of their loss date. Petitioner testified that he had purchased the air conditioners for $800. Of course, only $800 would, therefore, be allowed as a casualty deduction with respect thereto. Sec. 1.165-7(b)(1), Income Tax Regs. In the face of this, and other similar failures in petitioner's proof, we allow petitioner 75 percent of his claimed loss, corrected in amount as shown in note 2 above. Cohan v. Commissioner, 39 F.2d 540, 544 (2d Cir. 1930).

Decision will be entered under Rule 155.

Reviewed by the Court.

CHABOT, J., concurring:

Respondent does not dispute the fact of petitioner's loss of the property left behind when petitioner departed Vietnam on April 26, 1975.

The parties dispute the amount of the loss; that dispute is resolved in the majority opinion (at page 134).

The parties also dispute the deductibility of the loss.

In the usual case, only one cause of loss is alleged and the issue either is whether that was the cause or whether that cause qualifies the loss for deduction. This case is unusual only in that any of several forces might have caused the loss. In such a situation, I see no warrant for requiring petitioner to show which of several forces, each of which would qualify the loss for deduction, was the cause of the...