David D. Parrish - Page 8

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               Petitioner has failed to establish that the open transaction           
          doctrine is applicable.  Petitioner, on brief, contends that he             
          loaned over $334,500 to M&L.  This contention is based primarily            
          on petitioner's testimony, which was vague, evasive, and                    
          otherwise unpersuasive.  In an attempt to corroborate this                  
          testimony, petitioner presented scant and dubious documentation.            
          Even if petitioner could establish that he loaned M&L these                 
          funds, the open transaction doctrine is not applicable, because             
          petitioner did not have the requisite uncertainty relating to the           
          recovery of his principal.  Indeed, petitioner routinely received           
          monthly payments from M&L and reinvested them in the company.               
          Moreover, he encouraged friends and family to make investments in           
          M&L.                                                                        
               Petitioner also contends that the payments he received from            
          M&L should be treated as a return of principal because they were            
          made to conceal a fraud.  Petitioner relies on Greenberg v.                 
          Commissioner, T.C. Memo. 1996-281.  In Greenberg, the taxpayers             
          transferred funds to a ponzi scheme that purported to be a                  
          legitimate mortgage company.  The taxpayers were passive                    
          investors and were paid monthly payments from the company's bank            
          account.  The Court was presented with sufficient evidence to               
          determine the amount of funds paid and received by the taxpayers,           
          and it held that the payments the taxpayers received were not               
          interest because they were not compensation for the use or                  





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