The funds held in APECO Equine's name were not so restricted. We are hard pressed to understand the business reason for the use of those funds to reduce Mr. Kluener's indebtedness instead of funds that generally could be used only for the purpose of loan repayment. Moreover, Mr. Kluener subsequently used funds from his agency account to finance APECO.11 That Mr. Kluener would use funds ostensibly earmarked for financing APECO's operations to pay down his own indebtedness and then finance APECO using funds that were to be used to pay down that indebtedness indicates to us that, as respondent puts it, he viewed the accounts in which those funds were held "as merely different sections of his personal wallet." Petitioners have also presented varying reasons for the distribution of the sales proceeds. Mr. Hathaway, on whose testimony petitioners rely to establish the reason for the distribution, has previously offered another explanation for the distribution. In an affidavit made in connection with the instant case, Mr. Hathaway states that the distribution was made to Mr. Kluener in an effort to control the sales proceeds because of the "attitude of management" that sought to use them for other projects, an attitude "had not been foreseen or expected", rather 11 Petitioners contend that the record does not show the source of the funds Mr. Kluener used to make loans to APECO. However, because petitioners bear the burden of proof, the absence of evidence on the matter can hardly operate in their favor. Hallowell v. Commissioner, 56 T.C. at 608. Moreover, the records of Mr. Kluener's accounts with Fifth Third are sufficiently detailed to show that the agency account was the source of at least a portion of the funds lent to APECO.Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
Last modified: May 25, 2011