Orneal and Martha Kooyers, et al. - Page 32

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          recovered their initial “investments” during the same taxable               
          year as the Ponzi distributions.  In the exceptional case,                  
          Parrish, the taxpayer, an officer and director of the scheme’s              
          corporate vehicle, did not introduce evidence to show either the            
          amounts he invested or received, nor did he prove he was a victim           
          of fraud.                                                                   
               In two other cases, the taxpayers had not recovered their              
          initial investments during the same tax year as the Ponzi                   
          distributions.  Greenberg v. Commissioner, T.C. Memo. 1996-281;             
          Taylor v. United States, 81 AFTR 2d 98-1683, 98-1 USTC par.                 
          50,354 (E.D. Tenn. 1998).  In those cases, the courts held that             
          the distributions were a return of investment funds, not income.            
               In Greenberg, the taxpayers transferred funds to a Ponzi               
          scheme that purported to be a legitimate mortgage company.  The             
          taxpayers were passive investors and were paid monthly payments             
          from the company’s bank account.  They presented sufficient                 
          evidence to establish that the amount they received did not                 
          exceed the amount they paid.  This Court found that the payments            
          the taxpayers received were not interest because the payments               
          were not compensation for the use or forbearance of money.  See             
          Deputy v. duPont, 308 U.S. 488, 498 (1940) (interest is                     
          compensation for the use or forbearance of money).  Instead, we             
          found that the payments constituted nontaxable return of capital            








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