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not returned; (4) the record contains no evidence of any action
taken by petitioner at the time of the deposits of K & H's and
Ms. Velilla's funds that acknowledged his obligation to return
those funds; (5) the record contains no evidence indicating that
petitioner kept a contemporaneous accounting or record of (a) the
amounts and sources of the deposits that he made into petition-
ers' accounts during the years at issue or (b) the amounts of
those deposited funds, if any, that were used to make payments
to, or on behalf of, K & H and Ms. Velilla; and (6) petitioners
retained during each year at issue an unidentified portion of the
aggregate amount of K & H's and Ms. Velilla's funds that peti-
tioner deposited during each such year and did not use those
retained funds to make payments to, or on behalf of, K & H and/or
Ms. Velilla.
Even assuming arguendo that we were to find on the instant
record that petitioner had recognized an obligation to return K &
H's and Ms. Velilla's funds that petitioner deposited into
petitioners' accounts during the years at issue, petitioner's
unilateral recognition of such an obligation would be insuffi-
cient to cause those deposits to be excluded from petitioners'
income for the years at issue. See Moore v. United States, 412
F.2d 974, 979-980 (5th Cir. 1969). A taxpayer who obtains funds
without a consensual recognition, expressed or implied, of an
obligation to repay them and without any restriction as to their
disposition must include such funds in gross income. James v.
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