- 9 - the Putmans believed was his close friendship with them, and his position as an attorney, to steal their inheritance.4 Petitioner's engaging in the solitary activity of writing up promissory notes did not create loans between him and the estate. The promissory notes evidence no more than an inchoate intention to repay the amounts petitioner withdrew from the estate. Such an intention, even if there was one, cannot transform misappropriations into loans. Moore v. United States, 412 F.2d 974, 978-980 (5th Cir. 1969). As the court stated: The reasoning of James is that while an embezzler has a legal obligation to repay and may intend to repay, his legal obligation and intent are not the same as an actual agreement between lendor and borrower entailing "consensual recognition" of an obligation to repay and exact conditions of repayment. * * * The absence of a consensual agreement between the party providing the money and the party receiving it is fatal to the Trustee's contention that the money should be excluded from gross income on a loan theory. Therefore, it must be treated as income. [Id.; Katz v. Commissioner, supra.] Petitioner's writing up of promissory notes was insufficient to create a consensual relationship between him and the beneficiaries of the estate. Petitioner's stipulation that the beneficiaries of the estate were unaware of his withdrawals 4 Even if petitioner continues to make the monthly "restitution" payments of $230 per month for the rest of his life, these amounts are so small that the monthly payments will never begin to reduce the principal obligation to any extent. It is unfortunate for Mrs. Putman's heirs that the obligations that will be generated by our decision herein may interfere with petitioner's ability to pay his obligations under the outstanding criminal and civil judgments.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011