Stephen D. Podd - Page 57

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               Respondent determined that Mr. Podd, Victor, Jr., and Stephen          
          each received constructive dividend income of $228,678 during 1989          
          and $177,027 during 1990, which amounts are 1/3 of the disallowed           
          royalty expenses claimed by Powertex of $686,034 during 1989 and            
          $531,082 during 1990.  Additionally, in accordance with respondent's        
          determination that the $250,000 management fee expenses paid by             
          Powertex to Plus for the 1988 through 1990 taxable years were not           
          ordinary and necessary business expenses, respondent determined that        
          such payments constituted constructive dividends.  Initially,               
          respondent determined in the notices of deficiency that Mr. Podd            
          received $250,000 of constructive dividend income for 1988 and 1989,        
          and that the Podds and Mrs. Podd received $250,000 of constructive          
          dividend income for 1990.  By way of amended answers, respondent            
          also determined that Victor, Jr. and Stephen each received $250,000         
          of constructive dividend income for 1988 and 1989.                          

          14(...continued)                                                            
          of dividend income petitioners address on brief concern the                 
          constructive dividends that respondent determined were                      
          attributable to the disallowed management fees paid by Powertex             
          to Plus and the disallowed royalty expenses.  Accordingly, we               
          consider the individual petitioners to have conceded that they              
          received constructive dividends as determined by respondent,                
          except as to those amounts related to the disallowed royalty and            
          management fee expenses and the granting of patent rights to Mr.            
          Podd during 1989.  See Rybak v. Commissioner, 91 T.C. 524, 566              
          n.19 (1988).                                                                










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