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petitioner alleges that respondent failed to demonstrate that any
amounts received from Alviso and GMT exceeded his basis therein.
Generally, gross income includes net accessions to wealth
from whatever source derived. Sec. 61; Han v. Commissioner, T.C.
Memo. 2002-148 (citing Commissioner v. Glenshaw Glass Co., 348
U.S. 426, 431 (1955)). Section 301, however, places a
restriction on the definition of gross income. Barnard v.
Commissioner, T.C. Memo. 2001-242. Generally, that section
provides that funds distributed by a corporation over which the
shareholder has dominion and control are taxed under the auspices
of section 301(c). Id. Pursuant to section 301(c), a
constructive dividend46 is taxed as ordinary income only to the
45(...continued)
raised for the first time on brief, particularly where the
belated claim would prejudice a party.” Han v. Commissioner,
T.C. Memo. 2002-148; Rules 34(b)(4), 41(a) and (b); Foil v.
Commissioner, 92 T.C. 376, 418 (1989), affd. 920 F.2d 1196 (5th
Cir. 1990); Markwardt v. Commissioner, 64 T.C. 989, 997 (1975);
see also Bob Wondries Motors, Inc. v. Commissioner, 268 F.3d 1156
(9th Cir. 2001), affg. Toyota Town, Inc. v. Commissioner, T.C.
Memo. 2000-40. This Court has held on numerous occasions that it
will not consider issues not pleaded. See, e.g., Estate of
Mandels v. Commissioner, 64 T.C. 61 (1975); Estate of Horvath v.
Commissioner, 59 T.C. 551, 556 (1973); Frentz v. Commissioner, 44
T.C. 485, 491 (1965), affd. 375 F.2d 662 (6th Cir. 1967).
46“The crucial concept in a finding that there is a
constructive dividend is that the corporation has conferred a
benefit on the shareholder in order to distribute available
earnings and profits without expectation of repayment.”
Truesdell v. Commissioner, 89 T.C. 1280, 1295 (1987) (citing
Noble v. Commissioner, 368 F.2d 439, 443 (9th Cir. 1966), affg.
T.C. Memo. 1965-84).
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