Jimmy D. Morris, Transferee - Page 14




                                               - 14 -                                                  
            1954); Advest, Inc. v. Rader, 743 F. Supp. 851, 854 (S.D. Fla.                             
            1990).                                                                                     
                 On reply brief, petitioner states that he does not contest                            
            the receipt of $199,490 but argues that no more than $103,017 of                           
            this amount represents a transfer from ACT, because:  (1)                                  
            Petitioner had $13,873 of expenses associated with the sale of                             
            ACT’s assets to JSL, and (2) $82,600 was paid to petitioner for                            
            his entering into a covenant not to compete with JSL.12                                    

                  12 On opening brief, petitioner argues that ACT should be                            
            treated as having transferred to him no more than $67,017, an                              
            amount arrived at by subtracting from $199,490 not only his                                
            $13,873 of alleged sales expenses incurred and the $82,600                                 
            associated with the covenant not to compete, but also $36,000                              
            that he alleges represented repayment of a loan by ACT.                                    
            Petitioner provides no explanation for the discrepancy in his                              
            positions on opening and reply brief.  We consider petitioner to                           
            have abandoned his argument regarding ACT’s alleged repayment of                           
            a loan to petitioner.  This conclusion is consistent with                                  
            petitioner’s concession in Briggs v. Commissioner, T.C. Memo.                              
            2000-380, that the full $199,490 is includable in his gross                                
            income.                                                                                    
                  In any event, the evidence does not establish the existence                          
            of any loan from petitioner to ACT or that petitioner received                             
            the transferred assets in any capacity other than as a                                     
            shareholder of ACT.  The only documentary evidence offered by                              
            petitioner to establish the existence of loans to ACT was a                                
            handwritten worksheet, apparently prepared by ACT’s accountants,                           
            which indicates that $36,000 of the $199,490 transferred to each                           
            of ACT’s four shareholders, including petitioner and John L.                               
            Daniell (Daniell), represented “Loan Reductions”.  Petitioner                              
            offered no evidence to corroborate either the worksheet or ACT’s                           
            alleged indebtedness to him.  To the contrary, Daniell testified                           
            that he could not recall whether he or the other shareholders had                          
            ever made any loans to ACT.  Also, ACT’s 1988 Federal income tax                           
            return reflects no loans from shareholders.  Petitioner has                                
            failed to overcome the prima facie showing by respondent that                              
            ACT’s transfers to petitioner included the $36,000 in question.                            
                                                                         (continued...)                





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