Steven J. Romer - Page 16

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          amount of funds misappropriated were established by collateral              
               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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