Robert Henry Lehmuth - Page 13

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         petitioner’s claims against Kits.  He was not permitted to                   
         participate in the store manager case.                                       
              Mr. Davis explained many of the circumstances of his                    
         dealings with petitioner and of his litigation against Kits in an            
         effort to show that he retained the funds in question with                   
         petitioner’s consent and for his benefit.  We are not convinced              
         by these arguments.  Mr. Davis was an experienced attorney at the            
         time in question.  If the facts were as he represented, he could             
         have sent the entire $15,000 to petitioner and requested the                 
         return of $2,500 for whatever legitimate purpose he had in mind.             
         Alternatively, he could have obtained petitioner’s written                   
         agreement to his retaining $2,500.  He did neither.  Instead, he             
         paid only $12,500 to petitioner and offered a questionable                   
         explanation for retaining the balance.                                       
              We conclude that petitioner did not constructively receive              
         the $2,500 that Mr. Davis retained and never sent to petitioner.             
         Petitioner did not authorize Mr. Davis to retain the $2,500.                 
         Petitioner’s attempts to obtain the money were unsuccessful.  The            
         money simply was not available to him.  Moreover, petitioner                 
         received no economic benefit from Mr. Davis’s unilateral decision            
         to retain the money.  There was no possibility that petitioner               
         could benefit from participating in the store manager case                   
         because the settlement agreement with respect to the lab manager             
         case and the general release included in that settlement barred              

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