Allied Marine Systems, Inc. - Page 15

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          treat the payments of petitioner's personal expenses as loan                
          repayments.                                                                 
               Petitioner's attempts to characterize retroactively the                
          payments he received from Allied as loan repayments are not                 
          persuasive.  See Noble v. Commissioner, 368 F.2d 439 (9th Cir.              
          1966), affg. T.C. Memo. 1965-84.  The pattern of payments from              
          Allied for petitioner's benefit is more consistent with                     
          constructive dividends.  See Reis v. Commissioner, T.C. Memo.               
          1995-231; Cordes v. Commissioner, T.C. Memo. 1994-377.                      
               Petitioner contends that Allied did not have earnings and              
          profits from which to pay a dividend in 1988 or 1989.  Respondent           
          concedes that Allied did not make a profit in 1988.  However,               
          respondent argues that petitioner has failed to show that there             
          were no historical earnings available in 1988.  Petitioner argues           
          that Allied was only a corporate shell between its incorporation            
          in 1986 and 1988 and that no historical earnings could exist.               
          Petitioner's contention is not supported by any evidence in the             
          record.  Petitioner has not met his burden of proving that Allied           
          had insufficient earnings and profits to support the distribution           
          of dividends, to the extent determined by respondent, during the            
          years in issue.  Truesdell v. Commissioner, 89 T.C. 1280, 1295              
          (1987); see Rescigno v. Commissioner, T.C. Memo. 1991-479;                  
          Malicki v. Commissioner, T.C. Memo. 1988-559, affd. sub nom. Gold           
          Emporium, Inc. v. Commissioner, 910 F.2d 1374 (7th Cir. 1990).              






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