Estate of Harvey Feinsmith, Deceased, Betty Feinsmith, Executrix - Page 23




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          Commissioner, 89 T.C. 1280, 1295 (1987); see also Toushin v.                
          Commissioner, T.C. Memo. 1999-171, affd. 223 F.3d 642 (7th Cir.             
          2000).  The $31,667 recognized by Mr. Feinsmith as income for               
          1983 was mainly attributable to false invoices purchased in 1982.           
          The $52,320 recognized by Mr. Feinsmith as income for 1984 (by              
          way of the second amended return) was almost entirely                       
          attributable to false invoices purchased in 1983.  Given the fact           
          that the purchase of the false invoices by the corporations and             
          the conversion of the cash by the principals appears to us to               
          have occurred contemporaneously, that income, were it in fact               
          attributable to Mr. Feinsmith’s conversion of cash, as respondent           
          asserts, would have been properly recognized on Mr. Feinsmith’s             
          personal income tax returns for 1982 and 1983, respectively.                
          Moreover, Mr. Feinsmith recognized in income his portion of the             
          full amount of the false invoices which entered into the cost of            
          goods sold deductions.  The Court of Appeals for the Second                 
          Circuit stated that principals participating in the scheme                  
          converted to their personal use only part of the false invoice              
          amounts.9                                                                   



               9 We also note that Mr. Feinsmith indicated explicitly in              
          his affidavits that his recognition of income from the scheme               
          rested on whether he was a Randy Hall shareholder, rather than on           
          whether he personally received cash from the scheme.  As he                 
          stated in his affidavits:  “I did not receive any income as a               
          result of Randy Hall, Inc.’s false deductions for the fiscal year           
          ending January 31, 1981 because I was not a shareholder for any             
          portion of that year.”                                                      




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