- 15 -15 Federal with respect to the check-kiting scheme before July 1988. And at that time, it was apparent that Irvington Federal would suffer a loss as a result of petitioner's check-kiting scheme. In Buff v. Commissioner, 58 T.C. 224, 232 (1972), revd. 496 F.2d 847 (2d Cir. 1974), we held that where a taxpayer embezzled funds and "there is a 'consensual recognition' of indebtedness within the same taxable year, formalized by a confession of judgment," the embezzled funds are not included in income. The facts in Buff were as follows: The taxpayer embezzled funds from his employer. Upon discovery of the embezzlement, the taxpayer immediately admitted the embezzlement. He signed confessed judgments "for a debt justly due to the plaintiff [employer]". Id. at 225. The taxpayer further agreed to continue working for the employer and to pay $25 per week for repayment of the debt. He also borrowed $1,000 which he used to repay part of the debt. We recognized in Buff that parties to a transaction, dealing at arm's length, may alter, amend, or revoke a transaction so as to change its character for tax purposes if their action takes place within the same taxable year. We thus held therein that a consensual recognition of indebtedness existed such that the embezzled funds were not includable in the taxpayer's income. The facts in Buff are distinguishable from those herein. First, Irvington Federal never agreed to treat the repayment of the check-kiting scheme losses as a debt. Mr. Ottey testified that hePage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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