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amount of funds misappropriated were established by collateral
estoppel.
In petitioner's New York State court criminal prosecution,
however, neither the indictment nor the judgment of conviction
charged petitioner with embezzlement of any specific amount of
funds from his clients. Further, the record in this case is
lacking in information regarding the manner in which the order of
restitution was adjudicated and issued.
On the record in this case, we believe it would be
inappropriate to apply collateral estoppel to the New York State
Court order of restitution and to base our findings as to the
specific amount of embezzlement income petitioner received each
year from his clients solely on the order of restitution, and we
decline to do so. Allen v. McCurry, supra at 95; Zecchini v.
Commissioner, T.C. Memo. 1992-8; Cipparone v. Commissioner, T.C.
Memo. 1985-234; Keogh v. Commissioner, T.C. Memo. 1975-197.
However, for purposes of the tax deficiencies determined by
respondent in this case, petitioner has the burden of proving by
a preponderance of the evidence the actual amount of embezzlement
income that he received in each year. Rule 142(a). The evidence
indicates that petitioner embezzled from his clients essentially
the same amount of funds that he was ordered to restore to his
clients. The restitution amounts have been stipulated by the
parties, and those stipulated amounts reflect essentially the
same amount of embezzlement income that respondent has charged to
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