DocketNumber: Docket No. 14039-80
Citation Numbers: 42 T.C.M. 1514, 1981 Tax Ct. Memo LEXIS 128, 1981 T.C. Memo. 617
Filed Date: 10/22/1981
Status: Non-Precedential
Modified Date: 11/20/2020
MEMORANDUM FINDINGS OF FACT AND OPINION
DRENNEN,
*130 OPINION OF THE SPECIAL TRIAL JUDGE
PETERSON,
The issues for decision are (1) Whether amounts embezzled by petitioner from his employer during 1976 are taxable income, and, if they are, whether petitioner is entitled to offset this embezzlement income with amounts repaid in subsequent years; and (2) whether petitioner is liable for the additions to tax under
FINDINGS OF FACT
Some of the facts have been stipulated by the parties and are found accordingly.
Petitioner Richard M. Morrison (hereinafter petitioner) resided in Dorchester, Massachusetts, when he filed his petition in this case. Petitioner and his wife filed a joint Federal income tax return for 1976 with the Director, Andover Service Center, Andover, Massachusetts, on July 6, 1977.
During 1976 petitioner embezzled $ 20,500 from his employer, the New England Merchants National Bank (hereinafter Bank), and failed to report any of these embezzled funds on his 1976*131 Federal income tax return. During February 1978, petitioner executed an agreement with the Bank whereby petitioner agreed to make restitution to the Bank in the amount of $ 21,000. The payments were to be made in equal monthly installments of $ 90, beginning March 1, 1978. Petitioner has made monthly payments in accordance with the agreement, and in addition repaid a portion of the embezzled funds to the Bank during 1977. No repayments were made during 1976.
Respondent determined that petitioner is taxable in full on the amount embezzled without any reduction on account of repayments made in subsequent years.
OPINION
The primary issue is whether petitioner is taxable on the total amount of embezzled funds without regard to repayments made in subsequent years.
As a preliminary matter, we note that it is well established that embezzled funds constitute taxable income in the year of the embezzlement.
Petitioner's argument that he should be entitled to offset embezzlement income with amounts subsequently repaid is not based on any particular section of the Internal Revenue Code, but rather is based on what petitioner calls concepts of "fairness." Apparently, petitioner beieves that it would be unfair to tax him on amounts he has repaid his employer. However, as explained to petitioner at trial, the Internal Revenue Code is the mainspring of our jurisdiction, not general equitable principles.
The only Code sections which could conceivably give relief to the petitioner in the instant case are
*135 Respondent determined that petitioner is liable for the late filing addition to tax pursuant to
Respondent also determined that petitioner is liable for the addition to tax under
We conclude that petitioner is taxable in full on the amount*136 embezzled in 1976 without any reduction on account of repayments made in subsequent years.
1. All section references are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated. ↩
2. Pursuant to the order of assignment, on the authority of the "otherwise provided" language of
3. Under sec. 165(c)(2) an embezzler is entitled to deduct the repayment of embezzled funds from adjusted gross income in the year repayment is made. See
francis-t-norman-and-marguerite-m-norman-v-commissioner-of-internal , 407 F.2d 1337 ( 1969 )
Herman E. And Mary E. McKinney v. United States , 574 F.2d 1240 ( 1978 )
The Hays Corporation v. Commissioner of Internal Revenue , 331 F.2d 422 ( 1964 )
Welch v. Helvering , 54 S. Ct. 8 ( 1933 )