Joan Walters, f.k.a. Joan Gherman, and Henry Gherman - Page 48

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          arose from embezzlement of funds from accounts of FIP's clients.            
          As we discussed supra, the embezzlement occurred when Mr. Gherman           
          converted funds from various accounts of FIP's clients, not when            
          those funds subsequently were deposited into or disbursed from              
          the FIP account.  Ms. Walters had no control over the accounts of           
          FIP's clients.  She was not a participant in the embezzlement of            
          funds from those accounts.                                                  
               Moreover, if control over the FIP account was determinative,           
          we are convinced that Ms. Walters did not exercise that control.            
          Ms. Walters signed blank checks in large numbers.  Mr. Gherman's            
          signature, however, also was required on all of the checks before           
          they became valid.  Ms. Walters made no decisions as to when or             
          where the funds would be used.  Mr. Gherman alone made the                  
          decisions relating to the disbursement of funds from the FIP                
          account.  Additionally, Mr. Gherman alone embezzled the funds and           
          he alone knew that money from accounts of FIP's clients was being           
          diverted into the FIP account.  Mr. Gherman alone made all                  
          financial decisions relating to the use of those diverted funds.            
          Accordingly, we hold that the unreported income is attributed               
          solely to Mr. Gherman.  See Feldman v. Commissioner, 20 F.3d                
          1128, 1136-1137 (11th Cir. 1994) (the test for whether an item is           
          attributable to a spouse is whether the spouse has sufficient               
          connection through ownership rights or otherwise to make it an              
          item for which both spouses should bear responsibility), affg.              
          T.C. Memo. 1993-17.                                                         



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