Lenward C. Hood and Barbara P. Hood - Page 12




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          do not believe that we gave sufficient consideration to the                 
          possibility of a constructive dividend.  Nor do we think the                
          facts in that case or the instant cases come within the terms of            
          the exception in Lohrke v. Commissioner, supra, to the general              
          rule that a taxpayer may not deduct the expenses of another.  We            
          accordingly review these issues in the context of the instant               
          cases.                                                                      
               Our conclusion in Jack’s Maintenance Contractors, Inc. v.              
          Commissioner, supra, relied in substantial part upon the holding            
          in Lohrke v. Commissioner, supra, that a taxpayer may deduct the            
          payment of the expenses of another if the motive in so doing is             
          to protect or promote the taxpayer’s business.  However, Lohrke,            
          as well as the cases on which it relied, involved the payment by            
          an individual of a corporation’s expenses.  Where a corporation             
          pays expenses incurred by its sole or controlling shareholder, as           
          in the instant cases, an additional issue not considered in                 
          Lohrke is presented; namely, whether the corporation’s payment              
          should be treated as, in substance, a distribution of earnings.             
          Moreover, arrangements between a corporation and a controlling              
          shareholder should be closely scrutinized.  See Electric & Neon,            
          Inc. v. Commissioner, 56 T.C. 1324, 1339 (1971), affd. without              
          published opinion 496 F.2d 876 (5th Cir. 1974).  Accordingly, we            
          agree with the Court of Appeals that consideration should have              
          been given to whether there was a constructive dividend in Jack’s           






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