William W. Howard - Page 9

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          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.                                               



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