March 7, 1980
GEROME J. LEONE, PETITIONER-APPELLANT
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT-APPELLEE.
Before Newman, Kearse, Circuit Judge, Sifton, District Judge.
Gerome J. Leone appeals from a decision of the United States Tax Court (Wilbur, J.) sustaining the Commissioner's claim of deficiencies in Leone's federal income taxes of $52,698.03 for the taxable year ending April 30, 1971, and $47,485.11 for the taxable year ending April 30, 1972. The deficiencies resulted from taxpayer's failure to include in his report of gross income $206,360.11 he had embezzled from an estate for which he was acting as an attorney.
For substantially the reasons set forth in Judge Wilbur's opinion, we affirm. The Tax Court's finding that, before the end of the taxable years in question, there was no consensual recognition of an obligation to repay is supported by abundant evidence and forecloses any consideration of whether, in other circumstances, taxability is voided by a bona fide agreement to repay, executed during the pertinent taxable year. See Buff v. CIR, 496 F.2d 847 (2d Cir. 1974).
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