Michael L. and Susan Barnard - Page 17




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          which petitioners claim error in connection with the net worth              
          analysis.                                                                   
               Respondent determined that all of the underpayments                    
          attributable to Nanny’s were includable in petitioners’ gross               
          income as constructive dividends.  We disagree.  Absent a                   
          provision to the contrary, funds which a shareholder diverts from           
          a corporation are generally includable in the shareholder’s gross           
          income under section 61(a) to the extent that the shareholder has           
          dominion and control over them.  See also Commissioner v.                   
          Glenshaw Glass Co., 348 U.S. 426, 431 (1955).  One example of a             
          contrary provision is section 301, where Congress has provided              
          that funds (or any other property) distributed by a corporation             
          to a shareholder over which the shareholder has dominion and                
          control are to be taxed under the provisions of section 301(c).             
          Under section 301(c), a constructive distribution is taxable to             
          the shareholder as a dividend only to the extent of the                     
          corporation’s earnings and profits.  Any excess is a nontaxable             
          return of capital to the extent of the shareholder’s basis in the           
          corporation, and any remaining amount is taxable to the                     
          shareholder as a long-term capital gain.  Sec. 301(c)(2) and (3);           
          Truesdell v. Commissioner, 89 T.C. 1280, 1295-1298 (1987).  See             
          also FDIC v. First Heights Bank, FSB, 229 F.3d 528, 540 (6th Cir.           
          2000), wherein the Court of Appeals for the Sixth Circuit, the              
          court to which this case is appealable, stated:                             






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