Frank and Virginia Muhich - Page 24




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          the extent of the corporation's earnings and profits.  See secs.            
          301(a), (c)(1), and 316.  The shareholder must do so even though            
          the corporation has not formally declared a dividend.  See                  
          United States v. Mews, 923 F.2d 67, 68 (7th Cir. 1991); Crosby v.           
          United States, 496 F.2d 1384, 1388 (5th Cir. 1974).  The                    
          shareholder need not receive the distribution directly.  Payments           
          on behalf of a shareholder are treated as if paid directly to the           
          shareholder.  See Epstein v. Commissioner, 53 T.C. 459, 474-475             
          (1969).                                                                     
               In determining whether a shareholder has received a                    
          constructive dividend, we look to whether the payment by the                
          corporation benefited the shareholder personally rather than                
          furthered the interest of the corporation.  See Hagaman v.                  
          Commissioner, 958 F.2d 684, 690-691 (6th Cir. 1992), affg. and              
          remanding on other grounds T.C. Memo. 1987-549; Ireland v. United           
          States, 621 F.2d 731, 735 (5th Cir. 1980).  Given our holding               
          the trusts were shams and were created by the Muhichs to                    
          avoid taxes, we hold the $12,000 payment to the trust promoters             
          was solely to benefit petitioner and his family personally.  We             
          hold petitioner must include the payment in his income as a                 
          constructive dividend.15                                                    


               15 Petitioners neither argued nor proved that Midwest did              
          not have sufficient earnings and profits for us to categorize the           
          payment as a dividend under sec. 316.                                       





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