Lenward C. Hood and Barbara P. Hood - Page 13




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          Maintenance Contractors, Inc.9  In addition, we believe Lohrke is           
          further distinguishable from the situation in the instant cases             
          on the basis of the showing made by the taxpayer of the reasons             
          for paying another’s expense.  In Lohrke, the taxpayer paid the             
          expenses of another unable to do so; here, there has been no such           
          showing.                                                                    
               A constructive dividend arises “Where a corporation confers            
          an economic benefit on a shareholder without the expectation of             
          repayment, * * * even though neither the corporation nor the                
          shareholder intended a dividend.”  Magnon v. Commissioner, 73               
          T.C. 980, 993-994 (1980).  There is no question that the payment            
          of Mr. Hood’s legal fees was an economic benefit conferred                  
          without the expectation of repayment, raising the question of a             
          constructive dividend.  “However, ‘not every corporate                      
          expenditure which incidentally confers economic benefit on a                
          shareholder is a constructive dividend.’  The crucial test of the           
          existence of a constructive dividend is whether ‘the distribution           
          was primarily for the benefit of the shareholder.’”  Id. at 994             
          (quoting Loftin & Woodard, Inc. v. United States, 577 F.2d 1206,            
          1214 (5th Cir. 1978)).  The existence of some benefit to the                
          corporation is not enough to permit a corporate deduction; the              

               9 In the instant cases, unlike Jack’s Maintenance                      
          Contractors, Inc. v. Commissioner, supra, we have before us both            
          the issue of the corporation’s entitlement to a deduction and the           
          shareholder’s receipt of income arising from the corporation’s              
          payment of the legal expenses.                                              





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