Eric B. Benson, et al. - Page 63

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          Income Tax Regs.  Petitioners appear to concede the deductibility           
          issue as they advance no argument.                                          
               The only remaining matter of contention is whether an ERG              
          check issued on December 31, 1992, for $50,000 made payable to              
          the Bank of America constituted a constructive dividend to the              
          Bensons.  Burton used these funds to purchase a $50,000 cashier’s           
          check from the Bank of America made payable to MVPC.  The check             
          lists Burton as its purchaser.  The Bensons, and not ERG, claimed           
          a $50,000 deduction on their 1993 return.  Burton testified that            
          the donation was from him and not ERG.  At trial, Burton                    
          explained that MVPC “put on both the non-negotiable receipt, they           
          put B.O. Benson and on the face of the [cashier’s] check they put           
          B.O. Benson.  The reason, Your Honor, I put it on, I wanted to              
          ensure they knew where it came from.”  Accordingly, we find and             
          hold that the Bensons received a $50,000 constructive dividend in           
          1993 and hold that they are entitled to a charitable deduction              
          for the amount of the donation.  See sec. 170(a)(1); sec. 1.170A-           
          1(a), Income Tax Regs.                                                      
               7.  Excess Rent Paid by ERG Re: Stanford Plant                         
               Throughout the years 1988 to 1994, ERG occupied the Stanford           
          plant and paid rent to NPI for its use.  The unbundling agreement           

               55(...continued)                                                       
          the extent that amounts paid by ERG are not constructive                    
          dividends to the Bensons they should not also receive the benefit           
          of the deduction, we presume that respondent inadvertently                  
          omitted the word “not” between “should” and “be”.                           





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