Jack J. Kramer - Page 28

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            circumstantial evidence strongly corroborates petitioner's story.                             
            The May 1986 meeting in which Fainsbert told petitioner that the                              
            15-percent "kicker" had been eliminated is just one instance of                               
            petitioner as a subordinate participant being presented with a                                
            fait accompli.  Another such instance is how, after breaking his                              
            ankle in the boating accident, petitioner never went to                                       
            California to assume the role he had sought as overseer of Ben's                              
            investment in the card club, see supra note 11.  These incidents                              
            help to demonstrate the tenuousness of petitioner's position in                               
            Ben's enterprises and his lack of any real ownership interest in                              
            them.  Also persuasive to us is petitioner's lack of involvement                              
            in the underlying drug smuggling activities.                                                  
                  Even after accepting petitioner's explanations for the                                  
            disbursements to and from the various bank accounts, significant                              
            amounts still remain unaccounted for and unexplained in each of                               
            the 3 years.  Petitioner failed to discharge his burden of proof                              
            with regard to all the funds that came into his accounts.                                     
            Indeed, petitioner used funds from Barnett joint checking                                     
            exclusively for his own personal use.  Only one deposit in that                               
            account is not income:  a $150,000 loan to petitioner by his                                  
            sister-in-law.  The record does show that funds going through                                 
            Safra, and, to a lesser extent, Barnett money market, came from                               
            the card club via LCP Associates and other entities.  But,                                    
            without more, merely showing the source is insufficient to rebut                              
            the presumption that they were income to petitioner.                                          




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