Robert B. Kemp, Jr. - Page 2

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          favor of petitioner in Kemp v. Commissioner, T.C. Memo. 2004-153,           
          and we incorporate herein the facts set forth in that opinion.              
                                     Background                                       
               In 1974, petitioner began operating a sole proprietorship              
          that managed an investment portfolio, including employee                    
          benefits.  From 1983 through 1993, petitioner was employed by               
          First Tennessee Investment Management (First Tennessee).  From              
          1989 through 1993, petitioner deposited a portion of his earnings           
          from his sole proprietorship into certificates of deposit,                  
          municipal bonds, and a cash management fund.  Petitioner also               
          deposited checks, that were allegedly owned by First Tennessee,             
          into the bank account of his sole proprietorship.                           
               Beginning in 1993, petitioner was investigated by the FBI              
          and terminated by First Tennessee for violations of bank and                
          corporate policies.  In June of 1994, respondent sent a letter to           
          petitioner stating that his 1992 Federal income tax return was              
          selected for examination.  After meeting with respondent,                   
          petitioner filed amended returns that reported, on his Schedule             
          C, Profit or Loss From Business, increased taxable income of                
          $173,817, $191,595, and $63,628 for 1991, 1992, and 1993,                   
          respectively.  In February of 1995, petitioner filed an amended             
          return for 1990 that reported an increase in Schedule C taxable             
          income of $134,859.                                                         








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