Zabetti A. Pappas - Page 37




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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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