September 6, 1979
JAMES L. PICKERING, APPELLANT
COMMISSIONER OF INTERNAL REVENUE, APPELLEE.
Before KAUFMAN, Chief Judge, NEWMAN and KEARSE, Circuit Judges.
This cause came on to be heard on the transcript of record from the United States Tax Court, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the Judgment of the Tax Court be and it hereby is AFFIRMED.
1. A taxpayer who claims a casualty loss deduction carries the burden of proving the amount of the claimed loss. Rosenthal v. Commissioner, 416 F.2d 491, 498 (2d Cir. 1969). Since Mr. Pickering did not in fact repair the Hamburg Street property following the 1973 acts of vandalism, the Tax Court properly rejected his estimates of the cost of repair and insisted instead upon proof of the diminution in the building's market value attributable to the casualty. Farber v. Commissioner, 57 T.C. 714, 719 (1972). In the absence of such proof, the Tax Court's close approximation of the minimum value of the loss suffered satisfies the requirements of Cohan v. Commissioner, 39 F.2d 540, 544 (2d Cir. 1930), and is not clearly erroneous.
2. It is well established that a taxpayer has no right to a jury trial in the Tax Court when contesting a deficiency assessed by the Commissioner. Dorl v. Commissioner, 507 F.2d 406, 407 (2d Cir. 1974).
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