Charles R. Harp and April B. Harp - Page 43

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                             Miscellaneous Deposits                                                                                                                       
                                                                                                                                                                          
                              The parties agree that the total amounts of miscellaneous                                                                                    
                    deposits that remain at issue for 1989 and 1990 are $83,364 and                                                                                        
                    $41,583.71, respectively.  Petitioners agree that those deposits                                                                                       
                    are prima facie evidence of income and that they bear the burden                                                                                       
                    of proving that respondent's determinations of unreported income                                                                                       
                    for the years 1989 and 1990 based on those deposits are errone-                                                                                        
                    ous.  See Clayton v. Commissioner, 102 T.C. at 645; DiLeo v.                                                                                           
                    Commissioner, 96 T.C. at 869; Tokarski v. Commissioner, 87 T.C.                                                                                        
                    at 77.                                                                                                                                                 
                              Although petitioners' argument is not altogether clear, they                                                                                 
                    appear to argue that the miscellaneous deposits at issue for 1989                                                                                      
                    and 1990 do not constitute unreported income for those years                                                                                           
                    because they represent gross receipts derived from the operations                                                                                      
                    of petitioner's sole proprietorship Charles Harp Construction                                                                                          
                    that petitioners reported in Schedule C of their return for each                                                                                       


                    29(...continued)                                                                                                                                       
                    such an allegation from the complaint in the lawsuit does not                                                                                          
                    establish that those funds are not taxable to petitioners.  In                                                                                         
                    fact, with respect to petitioner's deposits during 1989 and 1990                                                                                       
                    of K & H's construction loan proceeds, the record does not indi-                                                                                       
                    cate that Mr. Kabeiseman had any knowledge at any time throughout                                                                                      
                    the course of the years at issue of petitioner's practice of                                                                                           
                    retaining a portion of those proceeds.  Even assuming arguendo                                                                                         
                    that we were to construe the settlement agreement as encompassing                                                                                      
                    a repayment of a portion of K & H's construction loan proceeds, a                                                                                      
                    repayment by petitioner in a year subsequent to the year in which                                                                                      
                    those proceeds were deposited into petitioners' accounts and for                                                                                       
                    which they constitute income to petitioners under the principles                                                                                       
                    of James v. United States, 366 U.S. 213 (1961), would not reduce                                                                                       
                    petitioners' income for the year during which those proceeds were                                                                                      
                    deposited.  See Mais v. Commissioner, 51 T.C. 494, 499 (1968).                                                                                         




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