David D. Le, a.k.a. David Dung Le, a.k.a. Dung V. Le and Kim Huong Le, a.k.a. Kim Le, et al. - Page 18

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          mean that his medical practice, which petitioner represented to             
          the public and to the Commissioner as a corporation named “David            
          Dung Le, M.D., Inc.”, may escape Federal taxation as a                      
          corporation.12                                                              
          B.  Constructive Distributions                                              
               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 with respect to his           
          or her stock are to be taxed under the provisions of section                
          301(c).  Under section 301(c), a constructive distribution is               


               12 Petitioners’ argument that DDL never existed is even more           
          audacious given that DDL attempted to litigate in this case the             
          merits of DDL’s liabilities and thereafter appealed to the Court            
          of Appeals for the Ninth Circuit our decision that DDL lacked               
          capacity to litigate by virtue of the fact that it was a                    
          corporation with suspended powers.  In light of the record as a             
          whole, including especially the Les’ plea agreements and DDL’s              
          filing of corporate income tax returns, we consider petitioners’            
          argument herein that petitioner did not operate his medical                 
          practice through a corporation known as “David Dung Le, M.D.,               
          Inc.” to be frivolous.  We also consider that it appears to have            
          been unreasonable for Mr. Hagendorf to have refused to stipulate            
          on behalf of his client to certain undisputed facts as to the               
          incorporation of petitioner’s medical practice, facts, we note,             
          which petitioner later testified at trial without contradiction             
          to be true.                                                                 





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