# Allen v. Commissioner

> United States Tax Court · January 24, 1951 · 16 T.C. 163

URL: https://www.frixlaw.com/law-library/cases/4475531

## Case

- **Full name:** Mary Frances Allen v. Commissioner of Internal Revenue
- **Court:** United States Tax Court
- **Decided:** January 24, 1951
- **Citations:** 16 T.C. 163; 1951 U.S. Tax Ct. LEXIS 301
- **Precedential status:** Published
- **Opinion:** Dissent by Opper
- **Judges:** Opper,Tietjens
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4475531

## Opinion text

OppeR, J., dissenting: As the hearer of the evidence, I would find the fact to be that petitioner’s brooch was stolen. I would do so for the very reason that the Court now finds otherwise; that is, that of all the_ possibilities, the most probable is a loss by tbeft.
(ftiis conclusion presupposes that we believe the testimony of the witnesses. Having heard them testify, I have no reservations in this respect. If the evidence is believed, petitioner had the brooch pinned on her dress at about 4:30 in the afternoon. She was present only in well lighted rooms so constructed that no article could reasonably be lost — especially in view of the subsequent search which the record shows. At 5 o’clock she discovered that the brooch was missing, having in the meantime mingled with a crowd of 5,000 people preparing to leave the museum.
Accepting this evidence, the three possibilities are thus: that the brooch dropped off and has never been found; that it was found but not turned in, and that it was stolen by some person in the crowd. The first may be disregarded as not a reasonable probability; the second would be impossible if the finder were honest. It assumes a virtual concealment which in the case of so valuable an object would actually amount to a theft. Taken with the third, it necessarily points to theft as the only reasonable cause of disappearance.
The suggestion that failure to show the condition of the clasp is fatal to petitioner’s case seems to me to prove too much. If the clasp were so difficult to open as to make its removal unlikely, it is even more improbable that it could have fallen off by itself; and if it could open accidentally so as to allow the brooch to fall off, it must have been easy game for a competent sneak thief. Since the clasp in any condition would make removal more likely than mere accidental opening, it is only on the assumption that she was not being candid that petitioner’s failure to produce such evidence could be the ground for the result now reached.
Absolute proof by an eye witness is so improbable that the burden now being imposed upon taxpayers virtually repeals fro tanto section 23 (e) (3). Ever since Appeal of Howard J. Simons, in 1 B. T. A. at page 351, the rule has been otherwise. Without regard to the New York penal law, to which, however, resort would appear to be authorized by the precedents, 1 the probabilities of theft have been demonstrated as completely as such circumstances could ever permit. I see no reason now for departing from principles so well settled and so long established.
Leech and Tietjens, JJ., agree with this dissent. Morris Plan Co. of St. Joseph, 42 B. T. A. 1190, 1195; Earle v. Commissioner, (CCA-2) 12 Fed. (2d) 366.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4475531. Public record. Not legal advice.