Gerald E. and Nancy J. Toberman - Page 17




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         by an S corporation depends upon whether the corporation has                 
         accumulated earnings and profits.  Compare subsec. (b) with                  
         subsec. (c) of sec. 1368.  If the S corporation has no                       
         accumulated earnings and profits, the distribution is nontaxable             
         to the extent of the shareholder’s adjusted basis in the stock.              
         See sec. 1368(b)(1).  Distributions in excess of adjusted basis              
         are treated as gains from the sale or exchange of property.  See             
         sec. 1368(b)(2).  If the S corporation has accumulated earnings              
         and profits, then distributions, in some circumstances, are                  
         treated as dividends and thus as ordinary income.  See sec.                  
         1368(c)(1) and (2).                                                          
              Petitioners argue that Bonnevista and Castle Towers had no              
         accumulated earnings and profits in 1993, because the                        
         corporations were not then in existence.  Petitioners argue                  
         alternatively that earnings and profits did not exceed the                   
         retained earnings reported by Bonnevista and Castle Towers on                
         Schedules L, Balance Sheets, of the last Federal income tax                  
         returns that they filed (i.e., Bonnevista’s 1991 Form 1120S and              
         Castle Tower’s 1990 Form 1120S).13                                           
              Petitioners’ arguments are without merit.  In the first                 
         instance, as previously discussed, petitioners failed to                     



               13 On Schedule L of its 1991 Form 1120S, Bonnevista reported           
          negative yearend retained earnings of $626,228.  On Schedule L of           
          its 1990 Form 1120S, Castle Towers reported yearend retained                
          earnings of $218,623.                                                       





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