-18- 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.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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