16 T.C. 163">*163 Petitioner contests respondent's adjustment disallowing a deduction for loss by theft, accounting for a deficiency of $ 1,800.16 in income tax for 1945.

FINDINGS OF FACT.

Petitioner, a resident of Greenwich, Connecticut, filed her Federal income tax return for 1945 with the collector of internal revenue for the district of Connecticut.

On January 21, 1945, petitioner owned a diamond brooch having a fair market value of $ 2,400. The brooch was about the size of a nickel, and contained eight diamonds. It had been given to petitioner by her husband as a wedding anniversary gift in 1943.

On Sunday afternoon, January 21, 1945, petitioner and her sister visited the Metropolitan Museum of Art, Fifth Avenue and 82nd Street, 1951 U.S. Tax Ct. LEXIS 301">*302 New York, New York. Petitioner wore the brooch on the left side of her dress about five inches below her shoulder. A fur coat which she wore was not removed at any time in the museum, but was thrown back off her shoulders to about six inches below her neck.

Petitioner and her sister entered the museum at 3 o'clock, and spent about two hours viewing paintings in the "Bache Collection," occupying six small rooms on the second floor, and consisting of approximately 16 T.C. 163">*164 45 paintings, 2 tapestries, 4 pedestals and 8 show cases containing enamels and miscellaneous works of art. The six rooms are connected to form a T, with three rooms across the top and three constituting the stem. The floors, well polished and without rugs, are constructed of wood, cork, and terrazzo. Unlike the floors of an adjoining series of galleries, through which the petitioner may have walked during the afternoon as a direct route between the rooms forming the T's extremities, they contained no floor vents. Five of the rooms were well lighted, and the sixth was light enough to permit easy discovery of a small article on the floor.

In addition to the paintings and show cases, four of the rooms contained1951 U.S. Tax Ct. LEXIS 301">*303 furniture including a total of eight chairs, and three rooms had wall vents with open grillwork installed about eight inches above the floors. One center room was separated from its neighbors by two movable partitions six inches thick having a clearance underneath of about one inch.

Petitioner remained standing continuously during the museum visit in question. While in one of the six rooms she met a friend with whom she conversed for about five minutes. Petitioner's sister remembers that at that time petitioner wore the brooch on her dress. When the friend departed petitioner and her sister continued to look at paintings in the Bache Collection for less than a half hour until a few minutes before five o'clock when a signal was sounded notifying the visitors to leave the museum.

Upon hearing the signal she and her sister proceeded directly to the stairway leading to the main floor, passing across two well-lighted rooms and a small landing at the top of the stairway. The floors of these two rooms and the landing were not covered by rugs, and were constructed of wood and terrazzo. They did not contain floor vents or other grillwork. The stone stairway, well lighted, was composed1951 U.S. Tax Ct. LEXIS 301">*304 of 48 steps in two flights with an intermediate landing containing two upholstered settees having removable cushions and a floor clearance of about four inches.

Of 10,400 persons who visited the museum on the day in question, about 5,000 were still in the building at closing time. When the signal was sounded, the visitors streamed down the stairway. Upon reaching the bottom two or three steps, petitioner did not have the brooch. She examined her clothing, and reported the loss to a guard at the main entrance and to the post-card sales clerk. Meanwhile, her sister returned to the Bache Collection, searched the rooms without success, and informed the attendants there of the loss.

The six rooms containing the Bache Collection, the two small rooms leading to the stairway, the landing, and the stairway are cleaned every day by employees of the museum. The daily cleanings include 16 T.C. 163">*165 the floor under the settees on the stairway and under the furniture in the rooms. Spaces under the movable partitions and behind the pedestals are cleaned at least once a week.

Property found either by visitors or personnel of the museum is customarily deposited in the office of the museum's captain1951 U.S. Tax Ct. LEXIS 301">*305 of the guard. The brooch never has been deposited in that office.

On January 22, 1945, petitioner informed Tiffany & Co., from whom her husband had purchased the brooch, that she had lost it the day before while in the museum. Tiffany & Co. inserted the following notice in the New York Times and Herald Tribune on January 23, 24, and 25:

Two hundred dollars reward for a diamond butterfly brooch lost January 21, in or near Metropolitan Museum of Art.

A few days later, on January 30, 1945, petitioner reported to the city police, at the precinct which includes the museum, that the brooch was "missing from her person in some unknown manner, while visiting the Metropolitan Museum," the "time of occurrence" being recorded as "Bet. 2 & 4 P. M." The police report is as follows:

Details:

Personally interviewed the above complainant who reports the property described on the reverse side of this report missing from her person in some unknown manner, while visiting the Metropolitan Museum.

Case Active.

The police handled the matter as a "lost property" case. A description of the brooch was forwarded to the Lost Property Bureau, 16 T.C. 163">*166 and a detective made inquiries at the museum, pawn-shops and jewelry stores. According to police records, the brooch never has been recovered.

Petitioner has not regained possession of the brooch. She has not been compensated for the loss by insurance or otherwise. In her return for 1945, under a "Schedule of Gains and Losses," petitioner claimed a "loss" of $ 2,400 on account of the brooch described as "LOST." In his notice of deficiency, respondent disallowed the deduction because --

The information submitted is not sufficient to establish theft in connection with the loss of a diamond brooch.

OPINION.

On the above facts, petitioner asks us to find that she sustained a loss by theft in the amount of $ 2,400, the1951 U.S. Tax Ct. LEXIS 301">*307 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 that1951 U.S. Tax Ct. LEXIS 301">*308 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 16 T.C. 163">*167 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 Statutes1951 U.S. Tax Ct. LEXIS 301">*309 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.

Decision will be entered for the respondent.

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 theft.

This 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 she1951 U.S. Tax Ct. LEXIS 301">*310 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 16 T.C. 163">*168 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 that1951 U.S. Tax Ct. LEXIS 301">*311 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 pro tantosection 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.