- 20 - of the embezzlement cases, the court, in that case, decided, that the result in the embezzlement case(s) “cannot be limited only to embezzlers; instead, the statute’s ‘unrestricted right’ language must be read to exclude from its coverage all those who receive earnings knowing themselves to have no legal right thereto.” Perez v. United States, 553 F. Supp. 558, 561 (M.D. Fla. 1982). In a memorandum opinion of this Court, the generalized holding of Perez was relied upon in circumstances where a lawyer converted his client’s trust fund to his own use. O’Hagan v. Commissioner, T.C. Memo. 1995-409. Factually, however, it is difficult to distinguish a lawyer’s conversion of a client’s funds entrusted to him from other forms of embezzlement. In both instances, the taxpayer did not have and knew he did not have a claim of right or appearance of unrestricted right to the funds. Any analysis of the “claim of right” concept in conjunction with embezzlement cases must focus on a line of cases surrounding James v. United States, 366 U.S. 213 (1961). In James, the Supreme Court reversed its holding in Commissioner v. Wilcox, 327 U.S. 404 (1946), that embezzled funds were not includable in gross income. Wilcox was, in part, predicated on the embezzler’s lack of “a claim of right to the alleged gain”. 327 U.S. at 408. In James v. United States, supra at 219, the Court reasoned that When a taxpayer acquires earnings, lawfully or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, “he has receivedPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011