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James v. United States, 366 U.S. 213, 6 L. Ed. 2d 246, 81 S. Ct. 1052 (1961), established that embezzled funds can constitute taxable income to the embezzler. When a taxpayer acquires earnings, lawfully or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, 'he has received income which he is required to return, even though it may still be claimed that he is not entitled to the money, and even though he may still be adjudged liable to restore its equivalent.' 

In a typical embezzlement, the embezzler intends at the outset to abscond with the funds. If he repays the money during the same taxable year, he will not be taxed. See James v. Commissioner, supra at 220; Quinn v. Commissioner, 524 F.2d 617, 624-25 (7th Cir. 1975); Rev. Rul. 65-254, 1965-2 Cum. Bul. 50. As held in Buff v. Commissioner, 496 F.2d 847 (2d Cir. 1974), if he spends the loot instead of repaying, he cannot avoid tax on his embezzlement income simply by signing promissory notes later in the same year. See also id. at 849-50 (Oakes, J., concurring). ...

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