Neonatology Associates, P.A., et al - Page 77




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            beneficiary, Ms. Sobo, received upon his death only the face                               
            value of the two C-group term policies which were then                                     
            outstanding on his life.  Neither she nor anyone else was                                  
            entitled to, or actually received, the conversion credit balance                           
            on either policy.  For the reasons stated immediately above, we                            
            do not believe that this “forfeiture” provision changes the fact                           
            that the amount credited to the conversion credit balance was                              
            simply a deposit that could either grow with interest, or, in the                          
            case of Dr. Sobo, dissipate, and that this deposit was                                     
            insufficiently related to the current life insurance protection                            
            to label it as such.30                                                                     
                  We conclude that the excess contributions are disguised                              
            (constructive) distributions to the petitioning employee/owners                            
            of Neonatology and Lakewood, see Mazzocchi Bus Co., Inc. v.                                
            Commissioner, 14 F.3d 923, 927-928 (3d Cir. 1994), affg. T.C.                              
            Memo. 1993-43; Commissioner v. Makransky, 321 F.2d 598, 601-603                            
            (3d Cir. 1963), affg. 36 T.C. 446 (1961); Truesdell v.                                     
            Commissioner, 89 T.C. 1280 (1989); see also Old Colony Trust Co.                           
            v. Commissioner, 279 U.S. 716 (1929) (individual taxpayer                                  
            constructively received income to the extent corporate employer                            
            agreed to pay his tax bill), which means, in turn, that the                                



                  30 Neither party has suggested that Dr. Sobo, upon death, is                         
            entitled to deduct a loss equal to the conversion credit balance,                          
            and we do not decide that issue.                                                           





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