Gabriel M. Daya, et al. - Page 30




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          as an outright and unconditional gift.14  See Sheldon v.                    
          Commissioner, T.C. Memo. 1969-170.  The facts and circumstances do          
          not support a finding of donative intent on the part of Mahmoud.            
          See In re Marriage of Jacobs, 180 Cal. Rptr. 234 (Ct. App.                  
          1982)(without donative intent, no gift has been made).  Gabriel’s           
          own testimony indicates that the household account was established          
          to pay expenses of the Mahmoud Daya family and that Laila was               
          given signatory authority over the account so that she could pay            
          household expenses.  Gabriel had a separate checking account to             
          cover his personal expenditures.  In fact, all of the mortgage              
          payments on the Foster City residence in 1995 were made from the            
          household account, as were most of the payments on the home equity          
          line of credit and half of the property taxes due for the year.             
          By depositing the checks from Fuad in the household checking                
          account, Mahmoud pooled the $17,500 with Gabriel, Morhaf, and               
          Fuad’s funds so that Laila would have funds at her disposal to              
          cover household expenses.  In our view the household account was a          
          “common family fund”, and the contributing members should each be           
          credited with having pooled the amount of their individual                  
          contributions.  See De La Garza v. Commissioner, 46 T.C. at 448-            


               14                                                                     
          Even if Mahmoud did intend for Gabriel to have unrestricted use             
          of the $17,500, it could constitute reimbursement for any funds             
          expended by Gabriel on behalf of Mahmoud.  See Jewell v.                    
          Commissioner, 69 T.C. 791, 801-802 (1978).                                  






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