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 19

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          taxable to the shareholder as a dividend only to the extent of              
          the corporation’s earnings and profits.  Any excess is a                    
          nontaxable return of capital to the extent of the shareholder’s             
          basis in the corporation.  Any remaining amount is taxable to the           
          shareholder as capital gain.  Sec. 301(c)(2) and (3); Truesdell             
          v. Commissioner, 89 T.C. 1280, 1295-1298 (1987).                            
               On the basis of the record before us, we are convinced:                
          (1) The Les had full dominion and control of DDL’s funds; i.e.,             
          the diverted attorney checks, and (2) they diverted those funds             
          for their personal use.  In fact, as to 1990, they admitted as              
          much in their plea agreements.13  Petitioners do not challenge              
          respondent’s analysis as to the tax treatment of the constructive           
          distributions from DDL.  We have reviewed those calculations, and           
          finding no error therein, we sustain respondent’s calculation of            
          the amounts of the constructive distributions that are dividends            
          and long-term capital gains.                                                
          C.  Fraud Penalties                                                         
               Respondent determined that the Les are liable for fraud                
          penalties under section 6663(a).  Section 6663(a) imposes a                 

               13 Whereas petitioners stress that all of the attorney                 
          checks were made out to petitioner personally, given the plea               
          agreements, we find this to be but one more step in the Les’ goal           
          to hide this income from the IRS.  We also reject petitioners’              
          assertion that the Les were naive, unsophisticated, and                     
          incompetent as to tax matters.  In fact, the Les willfully                  
          concealed the receipt of the attorney checks by petitioner and              
          DDL.  They were caught because the Commissioner was auditing the            
          personal injury attorney.                                                   





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