Franklin W. Briggs - Page 12




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         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.                                                                  



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