John J. Burke and Vivian Burke - Page 14

                 As to Mr. Burke's allegation that his employees embezzled funds from him              
            and his insurance agencies, we find that no such embezzlement took place.  The              
            employees whom Mr. Burke accuses of embezzlement were credible witnesses at                 
            trial.  They explicitly denied receipt of any of the money in question.  As we              
            have already stated in our findings of fact, these employees were operating                 
            under Mr. Burke's instructions when they withdrew funds from the MPC premium                
            account and the accounts of the Burke Insurance Agencies.  Such funds were                  
            either given to Mr. Burke, transferred to Ard Rhei, or otherwise dispersed on               
            Mr. Burke's behalf.  For example, on several occasions, funds were used to                  
            satisfy Mr. Burke's gambling debts11 or to pay persons who supplied Mr. Burke               
            with illegal drugs.12                                                                       
                  We conclude that Mr. Burke improperly diverted funds for his own                      
            personal use without the consent of U.S. Life,13 and these funds are,                       
            therefore, includable in his gross income.  See James v. United States, supra               
            at 219.  Accordingly, we sustain respondent's determination that Mr. Burke had              
            unreported income for the years in issue.  We also conclude that respondent                 
            has presented sufficient evidence to carry her burden of proof regarding the                
            increased deficiency for 1986.  We note that the amounts, which should have                 
            been paid to U.S. Life during the years in issue, actually exceed the income                
            amounts determined by respondent.                                                           

            Embezzlement Losses                                                                         

                  Mr. Burke argues that he is entitled to deductions for losses of $21,800              
            and $215,000 in 1985 and 1986, respectively, as a result of the embezzlement                

            11For instance, a check was drawn on the MPC premium account and made                       
            payable for $6,000 to Lisa Tobin, the wife of a bookmaker with whom Mr. Burke               
            gambled.                                                                                    
            12Another check was made payable for $4,000.51 to Don Balsamo.  Mr. Burke                   
            purchased cocaine from Mr. Balsamo during the years in issue.                               
            13Sufficient evidence exists to explain petitioners' need for funds well                    
            in excess of the income reported on the returns at issue.  Petitioners lived                
            in an expensive house, incurred significant home improvement expenses, paid                 
            for their son's college tuition and provided him with an automobile and                     
            insurance coverage.  Mr. Burke also purchased illegal narcotics and gambled                 
            heavily.                                                                                    



Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011