than because of Fifth Third's refusal to renew Mr. Kluener's
loans.12 We note that, at trial, Mr. Hathaway testified that
every effort was made to conceal the existence of the funds from
APECO's other personnel, that Mr. Kluener simply feared that the
sales proceeds might be diverted to other uses, and that the
actions of the bank prompted the distribution. Furthermore, in
the petition, petitioners alleged that the sales proceeds were
distributed pursuant to an accord with Fifth Third, but no
evidence of such an accord was presented at trial. The change in
the reasons offered for the distribution lessens the weight we
are inclined to give to petitioners' evidence on this point.
Petitioners have not persuaded us that the distribution of the
funds was not a step in a single transaction that began with the
transfer of the horses into APECO's name.
In sum, when we combine the distribution for Mr. Kluener's
benefit with the (1) efforts made to keep secret from APECO's
other personnel its role in the events in issue, including (a)
the transfer of the horses to APECO, (b) their sale in its name,
(c) the receipt of the sales proceeds by APECO Equine, and (d)
the distribution to Mr. Kluener of the balance of the Legg Mason
account in APECO Equine's name, (2) control Mr. Kluener
maintained over both the horses and the sales proceeds while they
were held in APECO's or APECO Equine's name, and (3) Mr.
Kluener's preference for financing APECO by means of loans, we
12 Mr. Hathaway's affidavit indicates that no effort was made
to keep the existence of the sales proceeds secret from APECO's
personnel, while his testimony at trial is the opposite.
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