- 32 - viously applicable law newly relied upon by the Commissioner to support a portion of the original deficiency. Id. at 197. Here, as there, ”Respondent failed to offer any evidence that indicated that respondent considered the application of * * * [that law] in making his determination.” Id. at 192. We thus view the lack of evidence on the section 304 question as the Commissioner’s fail- ure to meet his burden, and we do not rule against the Hursts on this issue.9 C. The Taxability of Mrs. Hurst’s Medical Benefits The final issue is the Commissioner’s assertion that the cost of Mrs. Hurst’s medical insurance paid by HMI is taxable to her. On this issue, the Commissioner is right. Under section 1372(a), an S corporation (and, remember, HMI elected to be an S corporation) is treated as a partnership, and any employee who is a “2-percent shareholder” is treated as a partner when it comes to deciding whether an employee fringe benefit (like an employ- er’s share of health insurance premiums) is includible in his gross income. Amounts paid by a partnership to (or for the bene- fit of) one of its partners are called “guaranteed payments” un- 9 The Commissioner also contends that the Hursts should have understood that section 304 was at issue, because “[t]he only legal theory upon which the respondent could have relied to dis- allow the installment sale or exchange treatment for the redemp- tion of the RHI stock is I.R.C. � 304.” Respondent’s Response to Petitioner’s Motion to Strike A Portion of Respondent’s Brief par. 2. Our rules do not force taxpayers into such guesswork.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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