Michael A. and Karyn E. Schmitt - Page 15

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          evidence in the record, such as a check issued on Sanwa or a bank           
          statement from the Sanwa account, that shows that petitioner                
          withdrew $50,000 from Sanwa.  Petitioner produced bank statements           
          from the Sanwa account for only the months of May, June, and                
          December 1990.  The deposit was made on July 23, 1990, and did              
          not coincide with the payment of tuition by guaranteed students             
          during that year.  Tuition for the summer 1991 course was                   
          generally paid in May 1990.  Petitioner has not explained his               
          delay in establishing the alleged trust account.  The logical               
          conclusion is that petitioner used his own money to open the                
          World Savings account rather than refundable tuition from the               
          LECC's 1990 review courses, as he contends.                                 
               There is no documentary support of petitioner’s or the                 
          guaranteed students’ alleged intent to create a trust account or            
          escrow arrangement.  Petitioner failed to deposit the tuition               
          into the World Savings account; petitioner’s oral testimony that            
          he intended to create a trust is not credible.  Petitioner’s                
          right to retain the tuition from the guaranteed courses was in              
          some respects contingent on the students' performance on the                
          California bar examination.  However, the possibility that                  
          petitioner might have had to pay failing students refunds is not            
          a substantial restriction on his use of the tuition.  The World             
          Savings account was not a trust account that created a                      







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