- 24 - 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.Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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