Jacob and Chana Pinson, et al. - Page 38




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          conclusive as to whether the payments were compensation for                 
          services.  The payments constitute dividends for U.S. tax                   
          purposes.”  We, however, again decline any invitation by                    
          petitioners to engage in a substance over form analysis.  For               
          reasons which parallel those discussed above, we find that                  
          petitioners are not entitled to now advance a position that                 
          conflicts with the paper trail they have created.                           
               Petitioners’ tax returns reflect the payments to DPP as                
          partnership income, and attached Schedules E in some years                  
          designate the income as nonpassive and in others as passive.                
          Descriptions of “consulting” or “trade or business--material                
          participation” are typically included in those years where a                
          nonpassive classification is shown, and even in a number of years           
          where the income is marked passive, it is nevertheless labeled              
          self-employment earnings.  Section 1402(a) defines “net earnings            
          from self-employment” as “the gross income derived by an                    
          individual from any trade or business carried on by such                    
          individual,” less allowable deductions, plus the individual’s               
          distributive share from any trade or business carried on by a               
          partnership.  However, the statute explicitly provides that “in             
          computing such gross income and deductions and such distributive            
          share of partnership ordinary income or loss * * * there shall be           
          excluded dividends on any share of stock”.  Sec. 1402(a), (a)(2).           








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