- 37 - 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.Page: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
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