Anthony and Linda Walters - Page 13

                                       - 13 -                                         
          Accordingly, respondent contends that the alleged embezzled funds           
          constitute gross income to petitioners in the year of                       
          embezzlement.  It is well established that profits or gains                 
          earned illegally constitute gross income within the meaning of              
          section 61.  James v. United States, 366 U.S. 213 (1961).                   
          Embezzled funds, therefore, constitute income to the embezzler.             
          Id.  In James, the Supreme Court explained that a taxpayer has              
          income when he or she "acquires earnings, lawfully or unlawfully,           
          without the consensual recognition, express or implied, of an               
          obligation to repay and without restriction as to their                     
          disposition".  Id. at 219.  Embezzlement income results from a              
          taxpayer's embezzlement activity if such activity "enriches" the            
          taxpayer.  Id. at 221.                                                      
               Petitioners contend that an application of the principles              
          enunciated in James v. United States, supra, necessitates a                 
          conclusion that petitioners did not realize embezzlement income             
          as a result of petitioner's using the Fruitland funds to purchase           
          cashier's checks.  Petitioners argue that Carlton was fully aware           
          of the cashier's checks and that he had approved of petitioner's            
          exclusive handling of them.  Petitioner testified that he                   
          considered the cashier's checks to be owned jointly by himself              
          and Carlton, and the cashier's checks represented their life                
          savings.  Petitioner further testified that he was the sole payee           
          of each cashier's check simply for reasons of administrative                
          convenience given his responsibility to manage the financial                




Page:  Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

Last modified: May 25, 2011