John Devlin - Page 7

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               Respondent seeks summary judgment that the deficiencies and            
          additions to tax determined in the notice of deficiency and                 
          amended answer be sustained.  The first issue is whether peti-              
          tioner is liable for the deficiencies.  The deficiencies are in             
          the amounts of $2,269, $27,458, and $5,998 for the taxable years            
          1990, 1991, and 1992.  The deficiencies arose because petitioner            
          failed to file Federal income tax returns and report gross income           
          for the taxable years 1990, 1991, and 1992 in the amounts of                
          $20,436, $107,301, and $27,381, as determined in the notice of              
          deficiency.                                                                 
               Section 61 defines gross income as income from whatever                
          source derived.  The Supreme Court has held that, when earnings             
          are acquired, lawfully or unlawfully, without a consensual recog-           
          nition of an obligation to repay and without restriction on their           
          disposition, there is income to the taxpayer even though he may             
          be required to pay restitution at a later date.  James v. United            
          States, 366 U.S. 213, 219 (1961).  This proposition has been                
          extended to cover situations where the taxpayer "obtained loans             
          in bad faith without an intent to repay them," as well as where             
          the taxpayer obtained money by embezzlement, as in the James                
          case.  United States v. Swallow, 511 F.2d 514, 519-520 (10th Cir.           
          1975).  The evidence establishes that petitioner received wage              
          and interest income of $20,436 in 1990.  In 1991, petitioner                
          received $92,000 of embezzlement income as well as wage and                 
          interest income of $15,301.  Further, the evidence establishes              




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