- 12 - taxable year as the Ponzi distributions. In the exceptional case, Parrish, the taxpayer was not a passive investor but was an officer and director of the scheme's corporate vehicle and did not introduce evidence to show either the amounts he invested or received. In two other cases, where as here, the taxpayer had not recovered the initial investment during the same tax year as the Ponzi distributions, courts have held that the distributions were not income but return of investment funds. Taylor v. United States, 81 AFTR 2d 98-1683, 98-1 USTC par. 50,354 (E.D. Tenn. 1998); Greenberg v. Commissioner, T.C. Memo. 1996-281. Mr. Alfano advised petitioner that she would not have income from CNC until she had recovered distributions in excess of her investment and that due to its "unusual" nature, he did not think she would recover her investment. Regardless of the accuracy of the advice given by Mr. Alfano, however, the question is whether petitioner believed the advice to be correct. See Cheek v. United States, 498 U.S. 192 (1991); see also TWA. v. Thurston, 469 U.S. 111, 126-128 (1985); Amos v. Commissioner, 43 T.C. 50, 55 (1964), affd. 360 F.2d 358 (4th Cir. 1965). Respondent's unstated argument must be that petitioner knew that the CNC distributions represented income that the law required her to report, and despite this knowledge she intentionally, or recklessly failed to report it. Respondent didPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011