Steven H. Toushin - Page 14




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          safe.  Petitioner deposited the Bijou's cash receipts; however,             
          petitioner sometimes deposited only one-half of those cash                  
          receipts.                                                                   
               Petitioner routinely was seen making personal purchases with           
          large sums of cash.  Petitioner was even seen making some                   
          personal purchases with cash removed from a duffle bag in                   
          envelopes resembling the drop envelopes used by the Bijou.                  
          Petitioner also routinely sent large sums of cash and money                 
          orders to the Screening Room in order to pay that business's                
          weekly expenses.  Before its remodeling in 1982, the Screening              
          Room did not generate enough income to cover its expenses.                  
               Furthermore, in his plea agreement, petitioner admitted that           
          his unreported income in 1980 was from skimmed cash receipts of             
          the Bijou.                                                                  
               From the entire record, we conclude that petitioner                    
          routinely took cash from the Bijou's drop safe in 1980, 1981, and           
          1982 for his own personal use and to pay for the Screening Room's           
          expenses.                                                                   
               Generally, where a shareholder diverts corporate funds to              
          his own use, those funds constitute constructive dividends to him           
          and are ordinary income to the extent of the corporation's                  
          earnings and profits.  See secs. 301(c), 316; Truesdell v.                  
          Commissioner, 89 T.C. 1280, 1295 (1987).                                    







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