Kin Sang Chan - Page 15




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               We disagree with petitioner’s reasoning.  First, the                   
          examining agent’s characterization of KSCI as a C corporation               
          was a result of the misapplication of the personal holding                  
          company provisions of the Internal Revenue Code.  Mr. Matos was             
          instructed by his supervisor to research the effect of the                  
          personal holding company rules on the Chans’ Form 1040 and                  
          KSCI’s Form 1120S.  Mr. Matos’s activity record indicates that              
          Mr. Matos researched, albeit cursorily, the personal holding                
          company provisions and concluded that two tests determined                  
          whether a corporation was a personal holding company:  The                  
          stock ownership test and the adjusted gross income test.  It                
          appears that on the basis of this research Mr. Matos’s                      
          supervisor instructed him to apply the personal holding company             
          provisions to KSCI.                                                         
               Mr. Peter, the Appeals officer assigned to the                         
          administrative appeal of the underlying cases, determined that              
          Mr. Matos had incorrectly treated KSCI as a personal holding                
          company.  Mr. Peter concluded that pursuant to section 1363(a)              
          the personal holding company tax is not applicable to electing              
          subchapter S corporations.  Section 1363(a) provides that                   
          “Except as otherwise provided in this subchapter, an S                      
          corporation shall not be subject to the taxes imposed by this               
          chapter.”  The chapter referred to is chapter 1 of the Internal             
          Revenue Code of which the personal holding company provisions               






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