James L. and Leta A. Thurman - Page 6

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               Petitioners' original Federal income tax return for 1992               
          does not reflect any taxable dividends received from EMFI.  On              
          June 18, 1993, petitioners filed a Form 1040X, Amended U.S.                 
          Individual Income Tax Return, for 1992 reporting taxable                    
          dividends of $665,981 from EMFI.  On April 4, 1996, petitioners             
          filed a third Form 1040X removing from taxable income the taxable           
          dividends of $665,981 from EMFI and claiming a refund of tax                
          proportionate to the reduction of income.2  The IRS has not                 
          allowed the claim for refund filed by petitioners in their third            
          amended return for the taxable year 1992.                                   
               Beginning in September 1995, EMFI was audited by the IRS for           
          the fiscal year ended October 31, 1993.  In 1996, in the course             
          of discussions with Mr. Rockne Wilson, petitioners' accountant,             
          the revenue agent examining EMFI's return for the fiscal year               
          ended October 31, 1993, raised the issue of whether EMFI had made           
          an election under section 1368(e)(3).  The revenue agent                    
          determined that the amount of C corporation earnings and profits            
          as of November 1, 1992, was $3,555,271 rather than $739,979.                
          Although petitioners dispute this figure, the parties agree that            
          EMFI's correct accumulated C corporation earnings and profits, as           
          of November 1, 1992, exceed the total distributions of $879,979             
          by EMFI in 1992.                                                            


               2Petitioners filed a second Form 1040X, dated Apr. 13, 1994,           
          in which they made an unrelated $5,427 adjustment to income.                




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