- 206 - 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 1981Page: Previous 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 Next
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