Robert T. Schirle - Page 20

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          as true the uncorroborated testimony of petitioner.  See Davis v.           
          Commissioner, 88 T.C. 122, 141 (1987), affd. 866 F.2d 852 (6th              
          Cir. 1989); Estate of DeNiro v. Commissioner, 795 F.2d 582, 584             
          (6th Cir. 1986), revg. T.C. Memo. 1985-128.  Petitioner's                   
          testimony, however, generally was credible, and we rely on                  
          petitioner's testimony as it was supported by the record.  See              
          Diaz v. Commissioner, 58 T.C. 560 (1972) (basing analysis upon              
          evaluation of the entire record and the credibility of                      
          witnesses); see also Estate of Neff v. Commissioner, T.C. Memo.             
          1997-186.                                                                   
               In the instant case, respondent relies on the settlement               
          checks which were made out to petitioner's law firm.  The                   
          evidence in the record indicating where the proceeds from those             
          checks went supports petitioner's explanation that, with certain            
          exceptions,4 Mr. Yoon converted the proceeds to his own use                 
          without petitioner's knowledge.  We conclude, therefore, that the           
          settlement checks cashed without petitioner's knowledge did not             
          constitute income to petitioner within the meaning of section 61.           
          Cf. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955).           
          The Mitsui Manufacturers Bank Client Trust Account                          

               4  Petitioner admits that he authorized Mr. Yoon to cash               
          certain of the disputed checks, namely items 1, 2, 9, 13, 15 and            
          16.  Petitioner contends that although up to one-third of the               
          gross amount of these checks could constitute gross receipts of             
          the firm, any such amount was given to Mr. Yoon as compensation.            
          Petitioner has failed to prove that any amount was paid as                  
          compensation to Mr. Yoon.                                                   




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