Stanley J. Zaban and Shirley A. Zaban - Page 21

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             hold for safekeeping.  According to Mr. Zaban, Mr. Neumyer gave him                                  
             the money because Mr. Neumyer was going to Las Vegas for several                                     
             weeks; and while there, Mr. Neumyer wanted Mr. Zaban to be in a                                      
             position to pay off Mr. Neumyer's obligations to  certain                                            
             individuals in connection with Mr. Neumyer's bookmaking operations.                                  
             Mr. Zaban testified that after Mr. Neumyer's return from Las Vegas,                                  
             Mr. Neumyer never asked him to return the funds.5                                                    
                    Mr. Zaban's testimony was self-serving and lacked credibility.                                
             The evidence reflects that on January 2, 1990, $40,000 in cash was                                   
             transferred from box 3567, a box controlled by Mr. Zaban to which                                    
             he had the key and which he was the only person ever to open, to                                     
             box 2164, a safe deposit box held in petitioners' names.                                             
             Petitioners offered  no  testimony  and  produced  no  evidence                                      
             indicating that the $40,000 deposited in box 2164 came from a                                        
             source other than box 3567.  Petitioners failed to prove that Mr.                                    
             Zaban lacked discretion and control over entry to box 3567 and the                                   
             use of the cash in that box.  See Pert v. Commissioner, T.C. Memo.                                   
             1997-150.  Petitioners have failed to establish a nontaxable source                                  
             for the cash that existed in box 3567.  We conclude that the                                         
             $115,100 is properly attributed to petitioners as cash on hand for                                   
             respondent's net worth calculation for 1989.                                                         
                    Petitioners' argument that respondent failed to meet each of                                  
             the elements of the net worth method, including the beginning cash                                   

                    5     Mr. Neumyer died prior to the date of trial.                                            




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