Delaware Corp., et al. - Page 48

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                    The legal fee was clearly incurred and paid for by                
               Delaware, which had purchased the property from Barber.                
               The suit was filed to protect Delaware’s $50,000 in-                   
               vestment in the property.                                              
               Respondent counters:                                                   
               the payment of * * * legal fees associated with Bar-                   
               ber’s suit against his ex-wife involving their marital                 
               residence constitute[s] constructive dividends to                      
               Barber and petitioners have not argued that the pay-                   
               ments constituted compensation to him, deductible by                   
               Delaware Corporation on that basis. * * *                              
                  *       *       *       *       *       *       *                   
                    * * * In this case, petitioner Barber brought suit                
               against his ex-wife because she defrauded him out of                   
               their marital residence and he sought rent from his ex-                
               wife as part of the equitable distribution of marital                  
               property. * * * But for the divorce, Barber would not                  
               have had to bring suit against his ex-wife.  Moreover,                 
               Barber brought suit against his ex-wife in his own name                
               and he, not Delaware Corporation was awarded the prop-                 
               erty at the conclusion of the litigation. * * * What-                  
               ever business justifications petitioners put forward                   
               are simply not sufficient substance to alter the con-                  
               clusion that the payment was primarily for Barber’s                    
               benefit and a constructive dividend [is] warranted.                    
               On the record before us, we reject petitioners’ argument               
          that during 1994 Delaware Corporation’s payments of the legal               
          fees with respect to the Mitchums Creek property do not consti-             
          tute constructive dividends to Mr. Barber for that year and that            
          Delaware Corporation is entitled to deduct such legal fees for              
          that year.  On that record, we agree with respondent that during            
          1994 such payments constitute constructive dividends to Mr.                 








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