AJF Transportation Consultants, Inc. - Page 22




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             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).                                                                                              

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