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