- 19 - are comfortable in treating the two as the same for purposes of the instant case. See Jones v. Commissioner, T.C. Memo. 1997- 400, affd. without published opinion 177 F.3d 983 (11th Cir. 1999). Respondent asserts that petitioners’ understatements for the subject years are attributable to Nanny’s to the extent of $29,213, $40,670, and $37,712, respectively. We agree. We disagree with respondent, however, that all of these amounts are constructive dividends which are includable in petitioners’ gross income as ordinary income. As to 1987, we conclude and hold that $18,659 (i.e., Nanny’s 1987 income) of the $29,213 is includable in petitioners’ gross income as a dividend, that $10,000 is excludable from their gross income as a return of capital, and that $554 is includable in their gross income as a long-term capital gain.6 Sec. 301(c). As to 1988, we conclude and hold that $31,529 (i.e., Nanny’s 1988 income) of the $40,670 is includable in their gross income as a dividend and that the remainder of $9,141 is includable in their gross income as a long-term capital gain. Id. As to 1989, we conclude and hold 6 After considering our opinion herein, we find that at the end of Nanny’s 1987 taxable year: (1) Nanny’s had a $582 deficit in earnings and profit (the $18,077 less the constructive dividend of $18,659) and (2) petitioners had a zero basis in their Nanny’s stock (their original $10,000 basis less the $10,000 return of capital).Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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