- 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...)Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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