Donald R. Martin - Page 13

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                    C.        Whether the Unpaid Balances of the Loans From Activewear to                                                                                  
                              Jackson's Corporations Are Constructive Dividends to                                                                                         
                              Petitioner                                                                                                                                   
                              Respondent contends that the unpaid balances of Activewear's                                                                                 
                    advances to Jackson or his corporations were constructive                                                                                              
                    dividends to petitioner.  We disagree.                                                                                                                 
                              Gross income includes dividends.  Sec. 61(a)(7).  A dividend                                                                                 
                    is a distribution of property by a corporation to its                                                                                                  
                    shareholders from its earnings and profits.  Sec. 316(a).  A                                                                                           
                    shareholder receives a constructive dividend to the extent of the                                                                                      
                    corporation's earnings and profits if the corporation pays a                                                                                           
                    personal expense of its shareholder or the shareholder uses                                                                                            
                    corporate property for a personal purpose.  Secs. 301, 316;                                                                                            
                    Falsetti v. Commissioner, 85 T.C. 332, 356-357 (1985); Henry                                                                                           
                    Schwartz Corp. v. Commissioner, 60 T.C. 728, 743-744 (1973).                                                                                           
                    Whether a shareholder receives a constructive dividend is a                                                                                            
                    question of fact.  Hagaman v. Commissioner, 958 F.2d 684, 690-691                                                                                      
                    (6th Cir. 1992), affg. and remanding T.C. Memo. 1990-655; Loftin                                                                                       
                    & Woodard, Inc. v. United States, 577 F.2d 1206, 1214-1215 (5th                                                                                        
                    Cir. 1978).                                                                                                                                            
                              Petitioner did not use or receive any benefit from the                                                                                       
                    unpaid balance of Activewear's loans to Jackson or his                                                                                                 
                    corporations.  Petitioner used his own funds to compensate for                                                                                         
                    Jackson's failure to repay Activewear.  Petitioner reasonably                                                                                          
                    believed that it was in Activewear's interest to help Jackson and                                                                                      
                    to earn interest for Activewear.                                                                                                                       



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