J.J. Zand - Page 127

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          Iran to the reported retained earnings per the financial                    
          statements approximates $5 million in earnings and profits.                 
               Because Diesel Power's earnings and profits through 1974               
          were in excess of $5 million, the $3,925,000 amount determined by           
          respondent to be petitioner's gain from the sale of his Diesel              
          Power stock is deemed to be ordinary dividend income, rather than           
          long-term capital gain, pursuant to section 1248.                           
               We note that petitioner does not contend that Diesel Power             
          lacked sufficient earnings and profits.  It is not mentioned in             
          his brief.  Instead, petitioner claims that section 1248 is                 
          inapplicable because he sold 60 percent of his Diesel Power stock           
          in 1971; therefore, Diesel Power was not a controlled foreign               
          corporation within 5 years of petitioner's 1977 stock sale.  This           
          in incorrect.  The parties stipulated that petitioner owned 100             
          percent of Diesel Power's stock until at least Novemer 1974;                
          petitioner filed Forms 2952 to that effect; and petitioner                  
          testified that he owned 100 percent of Diesel Power until at                
          least June 1974.                                                            
               Accordingly, we hold that petitioner had a gain of                     
          $3,925,000 on the sale of his Diesel Power stock in 1977 and that           
          such gain is taxable as ordinary income.                                    
          V.  Issues 8 and 9--Claimed Reduction in 1979 Reported Income               
          Under a Claim of Right and Section 1341 Tax Computation for                 
          1981                                                                        







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