Rodney Noble and Jo Marie Payton - Page 13

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          of intent and does not control our decision.  See Turner v.                 
          Commissioner, 812 F.2d at 654; Cordes v. Commissioner, T.C. Memo.           
          1994-377.  Constructive dividends are more likely to originate              
          from a closely held corporation where decisions between a single            
          stockholder and the corporation are often one and the same.                 
          Zhadanov v. Commissioner, T.C. Memo. 2002-104.                              
               Petitioner argues that she could not have received dividends           
          from PPP for either 1995 or 1996 because PPP had deficits in its            
          accumulated earnings and profits for both years.  Section 316 and           
          its regulations provide that distributions to shareholders with             
          respect to their stock must be treated as dividends to the extent           
          of both current and accumulated earnings and profits.  “To the              
          extent that a corporation has current earnings and profits as of            
          the close of its taxable year, any distribution made in that year           
          will be presumed to be made out of such current earnings and                
          profits.” Brock v. Commissioner, T.C. Memo. 1982-335; see sec.              
          316(a); sec. 1.316-1(a)(1), Income Tax Regs.  If the                        
          distributions for the year exceed the amount of current earnings            
          and profits the excess is deemed to have been made out of any               
          accumulated earnings and profits.  Prescott v. Commissioner, T.C.           
          Memo. 1983-709.  Any portion of the distribution that does not              
          qualify for dividend treatment shall be applied against the                 
          shareholders’ basis in their stock, and any excess shall be                 
          treated as gain.  Sec. 301(c).  Thus, petitioner was able to                






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