John F. Moran - Page 12

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          in the criminal case on the basis of petitioner’s guilty plea.              
          On October 27, 1997, the Court of Appeals for the Third Circuit             
          affirmed the judgment of conviction entered in the criminal case.           
          No petition for certiorari was filed with the Supreme Court.                
               Ms. McNamara was indicted for the filing of false joint tax            
          returns for the taxable years 1989 and 1990.  Ms. McNamara pled             
          guilty to these charges.                                                    
               By March 8, 1993, petitioner and respondent had signed a               
          Form 872-A, Special Consent to Extend the Time to Assess Tax, for           
          the 1988 and 1989 taxable years.  By March 9, 1994, petitioner              
          and respondent had signed a Form 872-A for the 1990 taxable year.           
                                       OPINION                                        
          I.  Understatement of Income - Constructive Dividends                       
               During the taxable years in issue petitioner diverted                  
          corporate funds to himself, which he failed to report as income.            
          Section 316(a) provides that a dividend means any distribution of           
          property made by a corporation to its shareholders out of its               
          earnings and profits.  The portion of a distribution that is a              
          dividend is included in the gross income of the recipient and               
          taxable as ordinary income.  Secs. 301(c), 316(a).  Although the            
          Code does not define earnings and profits, the calculation is               
          based on adjustments made to the corporation’s taxable income.              
          DiLeo v. Commissioner, 96 T.C. 858, 888 (1991), affd. 959 F.2d 16           
          (2d Cir. 1992); see sec. 1.312-6(a) and (b), Income Tax Regs.               






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