Paul A. and Marilyn J. Grothues - Page 28




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                    3.  Ms. Simpson’s Analysis                                        
               Ms. Simpson’s analysis of petitioners’ accounts does not               
          prove theft.  Ms. Simpson’s analysis merely shows the missing               
          amounts of the corporate employment tax funds.  Her analysis does           
          not set forth any conclusions with regard to whether funds were             
          in fact embezzled by anyone.  Therefore, Ms. Simpson’s testimony            
          does not prove embezzlement occurred.                                       
                    4.  Missing Evidence                                              
               Both petitioners and Ms. Simpson claim that, during Ms.                
          Simpson’s engagement, petitioners obtained some of Mr. Kanz’s               
          bank statements and copies of cashier’s checks payable to Mr.               
          Kanz that correspond in time and amount with some of the checks             
          that were allegedly embezzled.                                              
               Petitioners have the burden of proof.  Petitioners have not            
          introduced any evidence, documentary or otherwise, such as copies           
          of Mr. Kanz’s bank statements or copies of cashier’s checks made            
          payable to him.  Petitioners claim the documentary evidence was             
          taken and retained by Mrs. Grothues’s criminal and civil lawyers.           
          There is nothing in the record and no other evidence to                     
          substantiate petitioners’ claim to this effect.                             
               Petitioners have failed to meet their burden of proving that           
          theft occurred.                                                             










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