Don C. and Judy Montgomery - Page 22

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                  The principal issue in this case is whether                         
             petitioner realized unreported income from his activities                
             in connection with H&B.  A taxpayer does not realize income              
             by acting as a mere conduit for the transfer of funds on                 
             behalf of another.  See Heminway v. Commissioner, 44 T.C.                
             96 (1965); Teschner v. Commissioner, 38 T.C. 1003, 1007                  
             (1962); Mill v. Commissioner, 5 T.C. 691, 694 (1945); Drew               
             v. Commissioner, T.C. Memo. 1972-40.  However, "When a tax-              
             payer acquires earnings, lawfully or unlawfully, without                 
             the consensual recognition, express or implied, of an                    
             obligation to repay and without restriction as to their                  
             disposition," then he has realized income.  James v.                     
             United States, 366 U.S. 213, 219 (1961); see also Meier                  
             v. Commissioner, 91 T.C. 273, 295 (1988).  Thus, we must                 
             determine whether petitioner used the funds he withdrew                  
             from H&B's bank accounts for H&B's benefit, or whether he                
             converted those funds to his personal use.                               

             Lincoln Mark VII Automobile                                              
                  During 1988 and 1989, petitioner signed checks drawn                
             on H&B's First Interstate account and made payable to                    
             Community Bank totaling $4,017.78 and $2,679.04, respec-                 
             tively.  These checks represent payments on the loan used                
             to purchase the Lincoln Mark VII.                                        






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