Zalman Melnik and Lea Melnik - Page 37

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               The record regarding the business purpose for the use of the           
          foreign entities is unsatisfying and unconvincing for the reasons           
          summarized above.  The record is also unconvincing and not                  
          credible because none of the witnesses ever admitted that tax               
          considerations played any role in their decision to use the                 
          foreign entities.  The tax savings that resulted from the use of            
          the foreign entities were considerable, yet none of the witnesses           
          acknowledged this reality when they attempted at trial to justify           
          the use of the foreign entities.  The only acknowledgment offered           
          with respect to the tax consequences was in the form of testimony           
          by Mr. Pennoni, who stated that taxes would eventually be paid by           
          the Melniks when they received their respective annuity payments.           
          The record, however, raises substantial questions regarding                 
          whether Clend will ever be in a position to pay the annuities in            
          question.  Assets that should have been invested and managed to             
          ensure, to the fullest extent reasonably possible, that the                 
          annuities would actually be paid, were instead made available to            
          the Melniks through loans and directed real estate investments              
          that, as of the date of trial, were either in default or in                 
          litigation.38                                                               



               38As of the trial date, the defaulted loans made to the                
          Melniks had not been treated by Clend as distributions to the               
          foreign trusts and by the trusts as distributions to the Melniks,           
          even though Bermuda Trust had warned the Melniks that the unpaid            
          loans might be treated as trust distributions.                              





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