Estate of Harvey Feinsmith, Deceased, Betty Feinsmith, Executrix - Page 21




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          the Randy Hall checks which were given to the promoters in                  
          consideration for those invoices.6                                          
               Nor do we read the cooperation agreement or affidavits to              
          support a finding of fraud.  Mr. Feinsmith’s affidavits, for                
          example, merely state that he agrees that he received income                
          “because of the false deductions”.  The cooperation agreement               
          states similarly that “the false invoices * * * created the                 
          fraudulent business deductions and the unreported income”.  None            
          of these documents states specifically that the income is                   
          attributable to Mr. Feinsmith’s receipt (in either his individual           
          capacity or on behalf of Randy Hall) of any of the proceeds of              
          the scheme.7  Nor does either document indicate why Mr. Feinsmith           
          realized that income in the first place.  The mere fact that a              
          closely held corporation has claimed improper deductions does not           
          necessarily mean that its shareholders have realized income in              
          the amount of the deductions.  A shareholder such as Mr.                    
          Feinsmith realizes income through a constructive distribution               



               6 We also would have liked to have heard from Mr. Feinsmith            
          as to his understanding of his part in the scheme.  For some                
          unexplained reason, however, respondent waited until almost 4               
          years after Mr. Feinsmith’s death to issue the notice of                    
          deficiency to his estate.  In fact, respondent did not issue the            
          notice of deficiency to the estate until more than 10 years after           
          the Court of Appeals for the Second Circuit affirmed the                    
          promoters’ convictions.                                                     
               7 We also note that the parties have stipulated that Mr.               
          Feinsmith’s approximately $48,000 of income is taxable to him as            
          “constructive dividend income * * * arising out of deductions not           
          allowable on the corporate tax return of Randy Hall”.                       




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