- 22 -22 everything about the business of AJF, with the exception of how to drive a truck, but does not know how many casual laborers were used. Finally, Brittain's testimony indicates that she herself doubts the accuracy of her Report. When asked whether the Buffalo office hired casual laborers, Brittain replied, "probably, yes." The tentativeness of her response suggests a significant lack of confidence in her Report. Based on the foregoing, we reject the Report in its entirety due to its flawed analysis and lack of credibility. Since Ferrentino cannot show that payments were made for casual labor, we conclude that Ferrentino used the funds derived from cashing the delivery service and fuel reimbursement checks solely for his own benefit. Since Ferrentino used the check proceeds solely for his personal benefit, we must then decide whether Ferrentino must include the value of the check proceeds as dividends in gross income. Under sections 301(c) and 316(a), dividends are taxable to the shareholder as ordinary income to the extent of the corporation's earnings and profits, and any amount received by the shareholder in excess of earnings and profits is considered a nontaxable return of capital to the extent of the shareholder's basis in his stock. Any amount received in excess of both the earnings and profits of the corporation and the shareholder's basis in his stock is treated as gain from the sale or exchange of property. Truesdell v. Commissioner, 89 T.C. 1280, 1294-1295 (1987).Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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