Eric B. Benson, et al. - Page 62

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          Mohan Roy, M.D., Inc. v. Commissioner, T.C. Memo. 1997-562.                 
          Indeed, Burton admitted that possibly some of the automobile                
          expenses were spent on his family’s cars.  The Bensons have                 
          failed to meet their burden of proving error in respondent’s                
          determination with respect to the amounts still in issue.54  We             
          hold that, in addition to the amounts conceded, Burton had                  
          constructive dividend income in 1989, 1990, 1993, and 1994 of               
          $10,624, $8,676, $14,808, and $14,723, respectively.                        
               6.  Charitable Contributions                                           
               Because respondent has conceded that ERG’s payments of                 
          $6,000, $6,000, $6,000, and $13,500 in 1989, 1990, 1993, and 1994           
          to Moraga Valley Presbyterian Church (MVPC) are not constructive            
          dividends, the Bensons are not entitled to deduct these amounts             
          on their personal returns.  See sec. 170(a)(1); sec. 1.170A-1(a),           
          Income Tax Regs.  Additionally, respondent conceded that a $2,000           
          ERG check to Camp Timberwolf in 1994 was not a constructive                 
          dividend to the Bensons.  Thus, the Bensons are not entitled to             
          deduct this donation.55  See sec. 170(a)(1); sec. 1.170A-1(a),              

               54We do not find that respondent has affirmatively proven              
          that the amounts in issue are constructive dividends.                       
               55There appears to be a scrivener’s error in respondent’s              
          opening brief.  Respondent argues: “Finally, with respect to the            
          1994 check for $2,000 paid to Camp Timberwolf * * * respondent              
          has conceded that this amount was not a constructive dividend to            
          * * * [the Bensons].  Therefore, ERG’s charitable contribution to           
          Camp Timberwolf should be allowed as an itemized deduction on the           
          Bensons’ 1994 return.”  Given respondent’s first argument that to           
                                                             (continued...)           





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