- 12 - exceeding the aggregate amount of gas rebate payments made to them each year. Although the rules governing the tax treatment of S corporation shareholders do not foreclose this result, respondent has not sought this result either in the statutory notice or at trial. In an attempt to reconcile respondent’s position in the statutory notices and at trial with the operation of the relevant statutory provisions (which respondent has not cited or alluded to), we construe respondent’s position as reflecting a misfounded concession that, for each taxable year in issue, Briggs’ and Mrs. Morris’ pass-through incomes from Towers Construction did not exceed the amount of payments they each actually received. Giving effect to this deemed concession cures the problem of attributing to petitioners aggregate amounts of gross income exceeding the aggregate amount of the gas rebate payments, but opens the issue of the character of the gains represented by distributions in excess of the pass-through amounts (as deemed conceded by respondent).12 As previously discussed, under section 1368(b)(2), these excess distributions 12 For example, for taxable year 1986, the total gas rebate payments were $89,175 ($50,677.50 to Briggs and $38,497.50 to the Morrises), and each of them would have pass-through income of $44,587.50 (one half of $89,175), without regard to respondent’s deemed concession, which would limit the Morrisses’ pass-through income to $38,497.50. The question then arises as to the character of the $6,090 of rebate payments that Briggs received in excess of his pass-through amount ($50,677.50 less $44,587.50). Similar considerations apply for each of the taxable years in issue, with the character of the income in excess of the pass-through amounts becoming an issue for the Morrises for taxable year 1987 and for Briggs again for taxable year 1988.Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011