Gerald E. and Nancy J. Toberman - Page 19




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         of certain reorganizations and the like.  See sec. 1371(c)(2);               
         see also Eustice & Kuntz, Federal Income Taxation of S                       
         Corporations, sec. 8.08[8][b], at 8-62 (3d ed. 1993).16                      
              Bonnevista and Castle Towers each elected S corporation                 
         status sometime after their incorporation.  We infer that each               
         corporation was a C corporation before electing S status.                    
         Moreover, Bonnevista was an S corporation for taxable years prior            
         to 1983.  Petitioners have failed to show that Bonnevista and                
         Castle Towers did not have accumulated earnings and profits                  
         arising from their C corporation operations before electing S                
         status, that Bonnevista had no accumulated earnings and profits              
         from S corporation operations for taxable years prior to 1983, or            



              15(...continued)                                                        
                    under the subchapter S rules in effect before revision            
                    in 1982, a corporation electing subchapter S for a                
                    taxable year increased its accumulated earnings and               
                    profits if its earnings and profits for the year                  
                    exceeded both its taxable income for the year and its             
                    distributions out of that year’s earnings and profits.            
                    As a result of this rule, a shareholder may later be              
                    required to include in his or her income the                      
                    accumulated earnings and profits when it is distributed           
                    by the corporation.  The 1982 revision to subchapter S            
                    repealed this rule for earnings attributable to taxable           
                    years beginning after 1982 but did not do so for                  
                    previously accumulated S corporation earnings and                 
                    profits.                                                          
               16 In 1996, Congress eliminated certain pre-1983 accumulated           
          earnings and profits for certain S corporations that existed                
          before 1983, effective for the first taxable year beginning after           
          Dec. 31, 1996.  See Small Business Job Protection Act of 1996,              
          Pub. L. 104-188, sec. 1311, 100 Stat. 1755, 1784.  Accordingly,             
          this legislative provision is inapplicable to the instant case.             





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