Sam and Anna Zhadanov, et al. - Page 32




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               Although the Zhadanovs do not dispute that they had physical           
          control over the cash, they vigorously contest that they                    
          appropriated the cash to their own use.  They emphasize that they           
          never spent any of the unreported corporate cash for personal               
          purposes, as evidenced by the fact that the entire disputed                 
          amount was still in the safe on the date the cash was seized and            
          Mr. Zhadanov was arrested in 1993.17                                        
               Although control over an asset can be evidence of an                   
          economic benefit, control of an asset by a shareholder-officer              
          does not necessarily result in a benefit that is taxable to the             
          shareholder.  For example, a constructive dividend does not                 
          result when, despite “extremely informal” dealings, a sole                  
          shareholder’s intent in transferring funds from the corporation             
          to his personal checking account “was to use such funds for                 
          corporate purposes as an agent of the corporation.”  Nasser v.              
          United States, 257 F. Supp. 443, 449 (N.D. Cal. 1966); see also             
          Loftin & Woodard, Inc. v. United States, 577 F.2d 1206, 1215 (5th           
          Cir. 1978).  Likewise, we have held that a sole shareholder’s               
          physical control over unreported corporate cash does not result             
          in constructive dividends where the shareholder evidences an                
          intention to hold and use those funds for corporate purposes.               


               17We note that $827,981 was seized from the safe in May                
          1993, but respondent has taken the position in this case that the           
          total unreported vial income for all the years at issue was only            
          $728,346.  Implicit in respondent’s position is that $99,635 of             
          the cash seized from the safe was not unreported vial income.               





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