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received the funds. But respondent's proof fails to persuade us
that petitioner was that person or that petitioner actually
received any accession to wealth from the funds. Respondent has
not proven by clear and convincing evidence an underpayment
resulting from the Ron Gelfman payments.
The F&M check to Ron Gelfman also does not help respondent's
case. Mr. Klein testified that he thought the check was for
money that he or F&M owed to petitioner. Even if that is true,
there is no clear and convincing evidence that the payment
resulted in taxable income to petitioner. It could have been
repayment on a loan, in which case, even if petitioner received
the money, it would not be taxable income to him.
Finally, respondent alleges that petitioner's trading in the
Ron Gelfman brokerage account at Walter Capital proves that the
account was a nominee account, and therefore, that the Ron
Gelfman bank account was also a nominee account. This argument
does not rise to the level of clear and convincing evidence.
Respondent's witness, Mr. Grillo, testified that it could have
been an account for an actual customer over which petitioner had
discretionary trading authority. Respondent has failed to prove
by clear and convincing evidence that petitioner received the Ron
Gelfman funds, or acquired any accession to wealth that resulted
in an omission of income and an underpayment of tax.
Respondent has not proven that petitioner had signature
control over the Ron Gelfman bank account. Similarly, respondent
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