M.S. Food Stores, Inc. - Page 34

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          dividends to Mr. Sutton.  Donisi v. Commissioner, supra; Cordes v.          
          Commissioner, supra.                                                        
               Unexplained Bank Deposits                                              
               Mr. Sutton argues that the unexplained bank deposits in his            
          personal bank account consist of repayments of his loans to the             
          corporate petitioner, the proceeds of checks cashed by the store,           
          loans from Mr. Palmer, and cash distributions from the estate, all          
          of which would be nontaxable sources.  The factual predicate for            
          that argument has not been established.                                     
               We cannot find that Mr. Sutton made any loans to the                   
          corporate petitioner.  Thus, any payments out of the corporation            
          to him cannot be repayment of loans.  Ms. Stroud's entries to               
          Account 135 support respondent's position, indicating that Mr.              
          Sutton withdrew greater amounts of money than any amounts he may            
          have contributed.  Mr. Sutton has not argued that the funds he              
          withdrew from the corporate petitioner were intended to be loans            
          from the corporate petitioner.  See Alterman Foods, Inc. v. United          
          States, supra at 877 n.7.  We conclude that any funds that Mr.              
          Sutton withdrew from the corporate petitioner were constructive             
          dividends.10                                                                
               We are unable to attribute any of the unexplained bank                 
          deposits in the Suttons' bank accounts to the proceeds of personal          

          10 Petitioners have not presented argument or proof that any                
          distributions would be nontaxable due to the limitations of the             
          corporate petitioner's earnings and profits.                                





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