- 21 - 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”.Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
Last modified: May 25, 2011