Richard E. and Mary Ann Hurst - Page 32

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          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.              






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