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Respondent determined that petitioner received embezzlement
income of $18,500 from Michael S. in 1989. In pretrial
pleadings, respondent asserted that the $18,500 determination
consisted of: (i) $12,000 from petitioner’s sale to Michael S. of
a fictitious interest in certain real property in Hawaii; and
(ii) $10,000 from a fraudulent loan transaction involving Michael
S., of which petitioner had repaid $3,500.
Respondent now concedes that the $12,000 fictitious sale of
property was in fact a loan of $12,000 by Mr. S. to petitioner,
secured by an interest in any commission that petitioner might
receive on the sale of the Hawaii property.6 The evidence
adduced at trial establishes that petitioner partially repaid
this loan in a series of checks totaling $3,640 that were given
to Mr. S. during the first half of 1990.
On brief, respondent argues that the $12,000 loan was income
to petitioner in 1989, the year of its receipt, because she did
not intend to repay this amount to Michael S. Petitioner,
however, repaid $3,640 of the loan in 1990. We conclude that
this repayment evidences an intent to repay at the time she
obtained the loan, and that this intent continued at least
through some portion of 1990. Although respondent has modified
his theory to some extent in response to the evidence at trial,
6 Respondent seeks findings of fact to that effect in his
posttrial brief.
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