UNITED STATES TAX COURT

CORRECTED

T.C. Memo. 2021-135

UNITED STATES TAX COURT

FAB HOLDINGS, LLC, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

FRANK BERRITTO AND ESTATE OF DANA BERRITTO, DECEASED,

FRANK BERRITTO, EXECUTOR, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 21971-17, 22152-17.

Filed November 30, 2021.

Kevan P. McLaughlin, for petitioners.

Jeffrey L. Heinkel, Heather K. McCluskey, and Min Young Chan,

for respondent.

MEMORANDUM OPINION

COPELAND, Judge: The cases before the Court are consolidated for

purposes of briefing and opinion. The cases were submitted to the Court fully

Served 01/27/22

-2[*2] stipulated pursuant to Rule 122.1 The Internal Revenue Service (IRS)

determined deficiencies and penalties for FAB Holdings, LLC (FAB), as follows:

Tax year

ending 3/31

Deficiency

Penalty

sec. 6662(a)

2010

$23,574

$4,715

2011

8,490

1,698

2012

34,090

6,818

2013

19,276

3,855

The IRS determined deficiencies and penalties for Frank Berritto and Dana

Berritto, Deceased, as follows:

1

Year

Deficiency

Penalty

sec. 6662(a)

2010

$64,102

$12,820

2011

78,044

15,601

2012

113,389

22,678

2013

81,620

16,324

Unless otherwise indicated, all section references are to the Internal

Revenue Code of 1986 (Code), as amended and in effect at all relevant times, and

all Rule references are to the Tax Court Rules of Practice and Procedure. All

monetary amounts are rounded to the nearest dollar.

-3[*3] After concessions,2 the issues for decision are: (1) whether the statutory

notices of deficiency (SNODs) were timely sent,3 (2) whether there should be a

correlative adjustment4 to the gross income of FAB, and (3) whether petitioner

Frank Berritto received constructive dividends from FAB in tax years 2010, 2011,

and 2012 and petitioners Frank Berritto and the Estate of Dana Berritto received

constructive dividends from FAB in 2013.

Background

These cases were submitted in accordance with Rule 122. The stipulated

facts are found accordingly. When the petitions were timely filed in these

consolidated cases, Frank Berritto resided in New York, the Estate of Dana

Berritto was administered in New York, and FAB’s principal place of business

was in New York.5

2

Respondent conceded the sec. 6662(a) penalties. Respondent also

conceded that the assessment limitations periods expired with respect to the Estate

of Dana Berritto for tax years 2010, 2011, and 2012.

3

The Berrittos’ 2013 tax year is excluded from this issue.

4

While petitioners use the term “correlative adjustment”, they are asking for

consistency and a corresponding adjustment, and as discussed infra note 23,

sec. 482 does not apply in this situation.

5

These cases are therefore appealable to the U.S. Court of Appeals for the

Second Circuit unless the parties stipulate otherwise. See sec. 7482(b)(1) and (2).

-4[*4] I.

The Berrittos

The Berrittos were married during the years at issue. However, Mrs.

Berritto passed away on March 6, 2015. Mr. Berritto worked in the financial

industry. In 2010 Mr. Berritto started working for Merrill Lynch, Pierce, Fenner

& Smith, Inc., and he worked there for the remaining years at issue.

II.

Mr. Arias and the Integrated Tax Plan

In late 2009 or early 2010 the Berrittos decided to hire A.V. Arias & Co. to

prepare an integrated tax plan (ITP). The ITP included the formation of two

entities: a C corporation (FAB) and a partnership (Berritto Enterprises, LLC

(Enterprises)). FAB was organized and Enterprises was formed in Delaware on

November 30, 2010. The Berrittos were the sole owners of FAB and the sole

partners of Enterprises, each owning a 50% interest in each entity. During the

years at issue Mr. Berritto was the managing member of Enterprises and the

president of FAB.

Mr. Berritto was involved in the structuring of the ITP (for example by

emailing his choice of entity names and noting that he would contribute securities

as the initial capital for Enterprises); he was involved thereafter in administering

the entities’ transactions. During the years at issue Mr. Berritto worked

-5[*5] approximately 600 hours per year for FAB while Mrs. Berritto worked

approximately 40 hours per year for both FAB and Enterprises.

Enterprises filed a Form 1065, U.S. Return of Partnership Income, as its

initial return and for each tax year at issue.6 In contrast FAB filed a Form 1120,

U.S. Corporation Income Tax Return, as its initial return and for each tax year at

issue. To its initial return FAB attached a Form 8832, Entity Classification

Election, choosing to be classified as an association taxable as a corporation.

On December 1, 2010, FAB and Enterprises entered into a “Management

Agreement.” Mr. Berritto signed the agreement on behalf of both entities as

president of FAB and managing member of Enterprises.

Enterprises’ income was largely interest, dividends, and capital gains from

securities investments contributed by the Berrittos. FAB’s income was mostly, if

not solely, payments from Enterprises. Per their “Management Agreement”

6

The check-the-box regulations found in secs. 301.7701-1 through

301.7701-3, Proced. & Admin. Regs., provide the rules for the classification of

business entities for Federal tax purposes. Comensoli v. Commissioner, T.C.

Memo. 2009-242, 98 T.C.M. (CCH) 362, 363 (2009), aff’d, 422 F. App’x 412 (6th

Cir. 2011). Under the check-the-box regulations, a business entity, such as a

limited liability company, with two or more members can be classified as either a

partnership or a corporation. Id. A new domestic unincorporated entity, other

than a single-owner entity, is a partnership for tax purposes unless the entity

makes an affirmative election to be an association taxed as a corporation.

Sec. 301.7701-3(a) and (b)(1)(i), Proced. & Admin. Regs. Because no election

was made, Enterprises’ default classification was partnership.

-6[*6] Enterprises paid FAB management fees and deducted those fees each year.

This created nonpassive losses which flowed through the partnership and were

reported on the Berrittos’ individual returns. FAB conversely reported the fees as

income.

III.

Yearly Tax Returns

Mr. Berritto hired Mr. Arias to prepare and file the Berrittos’ joint

individual returns, Enterprises’ Forms 1065, and FAB’s Forms 1120 for the years

at issue. The Berrittos paid Mr. Arias over $20,000 for his services. Mr. Berritto

reviewed and approved the returns before signing them, and the returns were

timely filed. Throughout the years at issue Enterprises would pay fees, such as

management fees or bonuses, to FAB. However, because FAB had a March 31

yearend and Enterprises had a calendar yearend there were timing differences

between when Enterprises reported the expenses and when FAB picked up the

corresponding items as income.

A.

2010 Returns

For 2010 Enterprises reported $193,497 of tax-exempt interest income and

$264 of dividend income; it deducted $143,079 of management fees7 and $21,000

of rent expense. It reported an ordinary business loss of $164,079.

7

For all years at issue the management fees were paid to FAB.

-7[*7] For the year ending March 31, 2011, FAB reported $169,145 of income.

Most of FAB’s income consisted of management fees from Enterprises.8 FAB

deducted expense totaling $129,152, including the following items: $34,305 of

salaries and wages, $30,000 of officer compensation, and $12,500 of legal and

professional fees.

For 2010, among other items not in dispute, the Berrittos reported $1,284 of

wage income from FAB and deducted the $164,079 flowthrough loss from

Enterprises.

B.

2011 Returns

For 2011 Enterprises reported $2,869 of interest income, $173,863 of taxexempt interest income, $103,591 of dividend income, and $59,794 of net longterm capital gain. Enterprises deducted $21,000 of rent expense, $366 of interest

expense, and a total of $209,647 of other deductions. The other deductions

consisted of $5,049 of amortization expense, $15,610 of accounting fees, $10,000

for a business plan, and $178,988 of management fees. Enterprises reported an

ordinary business loss of $231,013.

8

For the years at issue FAB’s reported income differs from Enterprises’

reported management fee expense because of timing differences. As noted

supra p. 6, FAB has a March 31 yearend and Enterprises has a calendar yearend.

-8[*8] For the year ending March 31, 2012, FAB reported income of $169,955,

most of which was from Enterprises. FAB deducted expenses totaling $142,366,

including $8,491 of legal and professional fees.

For 2011, among other items not in dispute, the Berrittos reported $31,0219

of wage income from FAB and deducted the $231,013 flowthrough loss from

Enterprises.

C.

2012 Returns

For 2012 Enterprises reported $7,034 of interest income, $70,184 of taxexempt interest income, $218,234 of dividend income, and $144,229 of net longterm capital gain. Enterprises deducted $21,000 of rent expense, $85 of interest

expense, and $252,131 of other deductions. The other deductions consisted of

$1,360 of accounting fees, $504 of legal and professional fees, $250 of office

expense, $52,664 of management fees, and $197,353 for a performance bonus.10

Enterprises reported an ordinary business loss of $273,216. Enterprises also filed

a 2012 Form 1065X, Amended Return or Administrative Adjustment Request

9

This amount includes $30,000 of uncontested officer compensation that,

because of FAB’s having a March 31 yearend, relates to FAB’s reporting on an

earlier filed return.

10

Like the management fees, any performance bonuses were paid to FAB

during the years at issue.

-9[*9] (AAR), on May 24, 2014. That amended return did not change any of the

items in dispute.

For the year ending March 31, 2013, FAB reported $257,683 in income.

Most of FAB’s income was from Enterprises. Of the income reported, $197,35411

was for other income, which was further detailed as a performance bonus. FAB

deducted expenses totaling $277,840, including the following items: $8,440 of

legal and professional fees, $118,813 of employee benefit plan expense (further

detailed as $30,982 of medical reimbursements and $87,831 of long-term care

insurance), and $14,000 of director’s fees.

For 2012, among other items not in dispute, the Berrittos reported the

$14,000 of director’s fee income from FAB and deducted the $273,216

flowthrough loss from Enterprises.

D.

2013 Returns

For 2013 Enterprises reported $12,536 of ordinary income from other

partnerships, estates, and trusts, $30,647 of interest income, $56,653 of taxexempt interest income, and $329,814 of dividend income. Enterprises deducted

$21,000 of rent expense, $21,642 for taxes and licenses, $207 of depreciation, and

11

We note that there was a rounding difference between FAB and

Enterprises.

-10[*10] $198,025 of other deductions. The other deductions consisted of $195 of

amortization, $16,875 of accounting fees, $62,412 of management fees, and

$118,543 for a performance bonus. Enterprises reported a loss of $250,215

comprising an ordinary business loss of $228,338 and a net rental real estate loss

of $21,877.

For the year ending March 31, 2014, among other items, FAB reported total

income of $181,655.12 Most of this income was from Enterprises. FAB deducted

expenses totaling $151,407, including the following items: $11,436 of legal and

professional fees, $40,088 of employee benefit plan expense, $14,000 of director’s

fees, and $6,352 of taxes and licenses.

For 2013 among other items not in dispute, the Berrittos reported the

$14,000 of director’s fee income from FAB and deducted a $250,215 flowthrough

loss from Enterprises.

IV.

Authorizations and Consents for the Berrittos

In March 2014 Mr. and Mrs. Berritto each signed a Form 2848, Power of

Attorney and Declaration of Representative, authorizing Mr. Arias to sign

consents to extend the assessment limitations periods on their behalf for the

12

This is approximately the $62,412 management fee and the $118,543

performance bonus Enterprises claimed as a deduction.

-11[*11] 2010-17 tax years. On April 7, 2014, respondent received the fully executed

Forms 2848 for Mr. and Mrs. Berritto. On August 2, 2017, Mr. Berritto signed a

Form 2848 as executor of Mrs. Berritto’s estate, authorizing Mr. Arias to sign

consents to extend the assessment limitations periods on the estate’s behalf for the

2010-17 tax years. Also on August 2, 2017, Mr. Berritto signed a Form 56, Notice

Concerning Fiduciary Relationship, on which he stated he was the executor of

Mrs. Berritto’s estate. On August 7, 2017, respondent received the Form 2848 for

Mrs. Berritto’s estate and the fiduciary notice.

Mr. Arias signed four Forms 872, Consent to Extend the Time to Assess

Tax, purporting to extend the time for the IRS to assess Mr. Berritto’s tax for

2010, 2011, and 2012 tax years to August 8, 2018.13

13

On April 16, 2014, Mr. Arias signed a Form 872 on behalf of Mr. and Mrs.

Berritto. This extended the time to assess tax for the 2010 return to October 15,

2015. On May 28, 2015, after Mrs. Berritto passed away, Mr. Arias signed a

second Form 872 on behalf of the Berrittos. But because of the intervening death,

this extended the time to assess tax for only Mr. Berritto’s 2010 and 2011 returns

to October 30, 2016. On March 11, 2016, Mr. Arias signed a third Form 872 on

behalf of the Berrittos. This extended the time to assess tax for only Mr. Berritto’s

2010, 2011, and 2012 returns to August 4, 2017. On December 12, 2016, Mr.

Arias signed a fourth Form 872 on behalf of the Berrittos. This extended the time

to assess tax for only Mr. Berritto’s 2010, 2011, 2012, and 2013 returns to

August 8, 2018. As discussed infra note 16 the 2013 SNOD was issued within the

assessment limitations period as to both Mr. Berritto and the Estate of

Dana Berritto. However, as we noted supra note 2, respondent conceded that the

assessment limitations periods expired with respect to the Estate of Dana Berritto

(continued...)

-12[*12] V.

Authorizations and Consents for FAB

On June 12, 2014, Mr. Berritto signed, as president of FAB, a Form 2848

authorizing Mr. Arias to sign consents to extend the assessment limitations periods

on behalf of FAB for tax years ending March 31, 2010 through 2017. Ultimately,

four Forms 872 were executed for FAB, which extended the time to assess tax on

FAB’s Forms 1120 to August 8, 2018, for the tax years ending March 31, 2011

through 2014. The following table illustrates the four consents executed on behalf

of FAB and the extension dates as well as the date the SNOD was issued to FAB.

First

consent

received

6/21/14

extends

to...

Second

consent

received

2/12/15

extends

to...

Third

consent

received

3/15/16

extends

to...

Fourth

consent

received

11/15/16

extends

to...

SNOD

issue date

Year

ending

Return

filing date

3-yr.

assess.

limit. pd.

exp. date

3/31/11

8/5/11

8/5/14

10/15/15

10/30/16

8/4/17

8/8/18

7/26/17

3/31/12

8/1/12

8/1/15

---

10/30/16

8/4/17

8/8/18

7/26/17

3/31/13

11/8/13

11/8/16

---

---

8/4/17

8/8/18

7/26/17

3/31/14

1

6/15/17

---

---

8/4/17

8/8/18

7/26/17

6/15/14

1

The return was filed before the June 15, 2014, due date. However, for the

calculation of the assessment limitations period, the assessment period begins the

later of the filing date or the due date. See sec. 6501(b)(1).

13

(...continued)

for tax years 2010, 2011, and 2012.

-13[*13] Mr. Berritto personally signed the first Form 872 as president of FAB. Mr.

Arias signed the last three Forms 872 as FAB’s representative.

VI.

Statutory Notices of Deficiency

On July 26, 2017, the IRS mailed the SNODs for the Berrittos’ individual

returns for tax years 2010 through 2013 and FAB’s returns for tax years ending

March 31, 2011 through 2014. The adjustments in the SNODs consisted of three

main categories: (1) adjustments to Enterprises’ and FAB’s expense deductions;

(2) constructive dividends to the Berrittos from FAB; and (3) penalties.

A.

The Berrittos’ SNOD

Of the adjustments made to flowthrough items from Enterprises, the SNOD

issued to the Berrittos disallowed the deductions for management fees and

performance bonuses paid to FAB. Those adjustments resulted in passthrough

adjustments to the Berrittos’ individual returns.

In the “Explanation of Items” related to “Sch E-Inc/Loss-Partnership

Berritto Enterprises” the examining agent stated in error14 that “[w]e adjusted your

return in accordance with the examination results of the S corporation return

14

We asked the Berrittos and respondent to clarify the use of the term

S corporation to describe Enterprises, and both parties agreed it was in error.

-14[*14] (Form 1120S) of which you are a shareholder.” Enterprises was taxed as a

partnership, not an S corporation. Enterprises filed Forms 1065, not Forms 1120S.

In the “Explanation of Items” for “Ordinary Dividends FAB Holding LLC”

the examining agent stated that “[w]e have disallowed the personal expenses of

your shareholder(s) paid by the S Corporation and these expenses were classified

as [a] constructive dividend to the shareholder(s).” FAB was and still is a C

corporation and filed Forms 1120; it was never an S corporation. The constructive

dividend adjustments to the Berrittos’ returns were $44,500, $8,491, $118,421,

and $37,788 for the 2010, 2011, 2012, and 2013 tax years, respectively.

B.

FAB’s SNOD

The SNOD issued to FAB determined that certain expense deductions were

in fact constructive dividends for the benefit of its shareholders. As a result, the

expense deductions were reduced by amounts equal to the constructive dividends.

These adjustments to the expense deductions are more fully set forth below:

-15[*15]

Tax year

ending

3/31/2011

Tax year

ending

3/31/2012

Tax year

ending

3/31/2013

Tax year

ending

3/31/2014

Salaries and wages

$32,000

---

---

---

Legal and professional

services

12,500

$8,491

$8,440

$3,430

Employee benefit programs

---

---

95,981

17,256

Director’s fees

---

---

14,000

14,000

Taxes and licenses

---

---

---

3,102

Total

44,500

8,491

118,421

37,788

Expense adjustments

FAB’s SNOD did not make any adjustments to FAB’s income for the

relevant tax years or to the remaining expense deductions for each year.

The Berrittos and FAB timely petitioned the Court.

Discussion15

I.

Statute of Limitations

Petitioners contend that the assessment limitations periods expired before

the SNODs were sent to them.16 More specifically, petitioners argue that Mr.

15

While the SNODs, the petitions in these cases, and much of respondent’s

briefing referred to Enterprises as an S corporation, the record clearly reflects that

Enterprises was a partnership at all times.

16

Petitioners make this argument as to all years except for the Berrittos’

2013 tax year. The SNOD for 2013 was sent before the expiration of the threeyear limitations period and no extension was required. In addition as noted

supra note 2 respondent conceded the assessment limitations periods expired as to

the Estate of Dana Berritto for tax years 2010, 2011, and 2012.

-16[*16] Arias was operating with such an inherent conflict of interest that the

Forms 872 he signed were not valid, and therefore, the extensions of the

limitations periods expired before the SNODs’ being issued.

Ordinarily, the Commissioner must assess a tax within three years after a

return is filed. See sec. 6501(a). This period for assessment may be extended if

the Commissioner and the taxpayer have consented in writing to an extension,

provided that their agreement is executed before the expiration of the otherwise

applicable limitations period.17 Sec. 6501(c)(4)(A).

A.

Burden of Proof

The expiration of the assessment limitations period is an affirmative

defense, and the party raising it must specifically plead it and carry the burden of

proving its applicability. Rules 39, 142(a); Mecom v. Commissioner, 101 T.C.

374, 382 (1993), aff’d without published opinion, 40 F.3d 385 (5th Cir. 1994);

Heckman v. Commissioner, T.C. Memo. 2014-131, at *10-*11, aff’d, 788 F.3d

845 (8th Cir. 2015). To establish this defense, taxpayers must make a prima facie

case establishing the date of the filing of their return, the expiration of the

assessment limitations period, and receipt or mailing of the SNOD after the

17

The agreement may also be signed by a taxpayer’s authorized

representative. See Lyon v. Commissioner, T.C. Memo. 1994-351.

-17[*17] running of the period. Coleman v. Commissioner, 94 T.C. 82, 89 (1990);

Robinson v. Commissioner, 57 T.C. 735, 737 (1972). Where taxpayers have

established a prima facie case that the Commissioner mailed the SNOD to them

beyond the three-year period, the burden going forward is on the Commissioner to

prove that an exception to the period of limitations applies. Jordan v.

Commissioner, 134 T.C. 1, 6 (2010), supplemented by T.C. Memo. 2011-243. For

example, if the Commissioner can show a facially valid extension, then the burden

shifts back to the taxpayers to show that the consent was ineffective to extend the

limitations period. Adler v. Commissioner, 85 T.C. 535, 541 (1985); see also

sec. 6501(c)(4).

Petitioners established a prima facie case for the Berrittos’ 2010, 2011, and

2012 taxable years and for FAB’s tax years ending March 31, 2011 through 2014,

because the SNODs at issue are dated July 26, 2017, more than three years after

the returns for those years were filed.18 See Adler v. Commissioner, 85 T.C.

at 540-541. Accordingly, the burden of going forward with respect to those tax

years shifts to respondent. In satisfaction of his burden respondent showed the

limitations periods were extended for Mr. Berritto and FAB by presenting multiple

18

As discussed supra note 16, the SNOD as to the Berrittos’ 2013 tax year

was sent before the expiration of the assessment limitations period.

-18[*18] facially valid Forms 872. Respondent has conceded that the Forms 872

were invalid as to the Estate of Dana Berritto.19 As to Mr. Berritto and FAB, each

Form 872 was signed by either Mr. Arias or Mr. Berritto before the expiration of

the limitations periods, extending the periods to August 8, 2018. The SNODs

were dated July 26, 2017. Therefore, respondent met his burden to show that the

SNODs for the Berrittos’ 2010, 2011, and 2012 tax years and for FAB’s tax years

ending March 31, 2011 through 2014, were mailed within the assessment

limitations periods as extended for Mr. Berritto and FAB.20

The burden of going forward now shifts to petitioners to prove that the

Forms 872 were invalid.

19

“The Code treats married taxpayers who file jointly as one taxable unit;

however, it does not convert two spouses into one single taxpayer.” Vichich v.

Commissioner, 146 T.C. 186, 193 (2016). Spouses filing a joint return are

separate taxpayers, and each spouse has an absolute right to extend or not extend

the time within which to assess tax. Dolan v. Commissioner, 44 T.C. 420, 427428 (1965). A waiver to extend the time within which to assess tax is valid only

as to the spouse who signs the waiver. Tallal v. Commissioner, 77 T.C. 1291,

1295 (1981). Mrs. Berritto passed away on March 6, 2015. Therefore, after that

date Mr. Arias could no longer sign for her, and the Forms 872 signed thereafter

are not valid as to Mrs. Berritto or her estate.

20

As noted above, petitioners conceded that the SNOD for the 2013 tax year

for both Mr. Berritto and the Estate of Dana Berritto was sent before the expiration

of the limitations period such that no extension was required.

-19[*19] B.

Validity of Forms 872

Petitioners assert that the Forms 872 are invalid and therefore did not extend

the assessment limitations periods because Mr. Arias had an inherent conflict of

interest. According to petitioners, Mr. Arias was a promoter because he advised

them to implement the structure at issue and received payment for his advice.

Consequently, petitioners contend Mr. Arias’ status as a promoter invalidates his

authority to act on their behalf. We find this argument unpersuasive.

Petitioners label Mr. Arias a promoter; however, the line of cases petitioners

relied on, in which the taxpayers argued they reasonably relied on their tax adviser

to avoid penalties, are taken out of context. Petitioners rely on 106 Ltd. v.

Commissioner, 136 T.C. 67 (2011), aff’d, 684 F.3d 84 (D.C. Cir. 2012), to support

their argument that Mr. Arias was a promoter. In 106 Ltd. the taxpayer’s advisers

coordinated the entire transaction and “profited from selling the transaction to

numerous clients.” Id. at 80-81. The Court in 106 Ltd. described a promoter as

“an adviser who participated in structuring the transaction or is otherwise related

to, has an interest in, or profits from the transaction.” Id. at 79 (quoting Tigers

Eye Trading, LLC v. Commissioner, T.C. Memo. 2009-121, 2009 WL 1475159,

at *19). Petitioners argue that Mr. Arias falls within that definition because he

-20[*20] was involved with the transaction, and therefore he had a conflict of interest.

We are not convinced.

In 106 Ltd. v. Commissioner, 136 T.C. at 80, the Court also cautioned that

“[o]ne might need to be careful in applying the definition to some kinds of

transactions--a tax lawyer asked by a businessman for advice on how to sell the

family business through a tax-favored stock redemption might be said to have

‘participated in structuring the transaction.’” The mere fact that an adviser is

being paid to help with a transaction does not transform the adviser into a

promoter. Rather, when the “transaction involved is the same tax shelter offered

to numerous parties, the [Tigers Eye Trading, LLC] definition is workable.” Id.

Here, Mr. Berritto hired Mr. Arias to structure the ITP to help him and Mrs.

Berritto save on their taxes. Mr. Arias did not benefit from or have an interest in

the transaction outside of fees generated from time spent setting up the transaction

and providing accounting and tax preparation services. Furthermore, while Mr.

Arias advised Mr. Berritto on the ITP, Mr. Berritto also participated in planning

the structure.21 Petitioners have offered no evidence to show that Mr. Arias was

offering multiple clients the same tax plan. Similar to the “tax lawyer” example in

21

For example, although Mr. Arias wanted Mr. Berritto to use

“Management” in the C corporation’s name, Mr. Berritto decided to call the

C corporation FAB Holdings, LLC.

-21[*21] 106 Ltd., as any individual would go to an adviser for help in setting up a

transaction, Mr. Berritto went to Mr. Arias for general tax planning advice. Mr.

Arias helped the Berrittos with their ITP but was not a promoter with an inherent

conflict of interest.

Petitioners cast a wider net arguing that because Mr. Arias was paid to set

up the transaction he had an inherent conflict of interest. Petitioners incorrectly

draw analysis from Transpac Drilling Venture 1982-12 v. Commissioner, 147 F.3d

221 (2d Cir. 1998), rev’g and remanding T.C. Memo. 1994-26. Petitioners’ cases

are a far cry from Transpac, where the U.S. Court of Appeals for the Second

Circuit found that there was a conflict of interest that prevented the tax matters

partners from acting as representatives for the partners of the partnership when the

tax matters partners unilaterally signed the extensions of the limitations period.

Id. at 227. In that case the IRS was unable to get the consents from the limited

partners so it turned to the tax matters partners, who purportedly acted on behalf of

the limited partners. Id. at 224. Even more egregious, those tax matters partners

were under a criminal investigation and therefore had a significant conflict of

interest because of their willingness to oblige the IRS’ requests for their own

benefit, ignoring their fiduciary duty to the limited partners. Id. at 227-228.

Petitioners argue that Mr. Arias’ role was like that of the tax matters partners in

-22[*22] Transpac: Because the IRS knew that Mr. Arias played a role in

establishing petitioners’ ITP, the IRS was on notice that he had a conflict. This

argument is beyond the pale.

Petitioners make several unjustified and extensive leaps to compare these

cases with Transpac. Under petitioners’ proposed conflict of interest standard,

taxpayers who paid a tax preparer or an attorney as their representative could not

have the preparer or attorney represent them before the IRS (or in a judicial

proceeding) arising out of the transaction for which the preparer or attorney was

paid. However, taxpayers often select the firm or person who planned the

transaction to be their representative before the IRS in a subsequent inquiry.

Petitioners sought Mr. Arias’ expertise for tax planning and preparation. Mr.

Arias provided tax planning services to the Berrittos but also prepared yearly

returns for them, FAB, and Enterprises. Petitioners paid Mr. Arias around

$20,000 for these services. Unlike Transpac, these cases reveal no evidence that

Mr. Arias was under criminal investigation with a propensity to cooperate with the

IRS. The act of charging for services is not a criminal activity. Nothing in the

record indicates that Mr. Arias’ extending the assessment limitations periods

involved an inherent conflict of interest. Furthermore, unlike the limited partners

in Transpac, while Mr. Arias signed all of the Forms 872 for the Berrittos’

-23[*23] individual returns and most of FAB’s Forms 872, Mr. Berritto personally

signed the first Form 872 for FAB. Consequently, Transpac is not an analogous

case.

Similarly, petitioners argue that Circular 230, which governs practice before

the IRS, identifies Mr. Arias’ conduct as a conflict of interest. See 31 C.F.R. sec.

10.0(a) (2021). Circular 230 notes that there is conflict of interest when “[t]here is

a significant risk that the representation of one or more clients will be materially

limited by * * * a personal interest of the practitioner.” Id. sec. 10.29(a)(2).

Petitioners argue that the IRS should have known that there was an inherent

conflict of interest in Mr. Arias’ signing the extensions because he also signed the

tax returns as a paid preparer. As stated above, the suggestion that because an

individual is paid or part of a transaction’s planning that individual would

automatically be unable to represent a taxpayer is not practical. Such a standard

would invalidate the representation of taxpayers by numerous attorneys,

accountants, and power of attorney holders because those individuals often

perform tax planning and tax preparation and subsequently represent their clients

before the IRS. There will always be an underlying monetary tug between clients

and their paid representatives. Circular 230 is a mechanism to allow sanctions for

violating the regulations governing practice before the IRS; it is not a mechanism

-24[*24] to determine whether a power of attorney is valid and confers authority to

sign Forms 872. 31 C.F.R. sec. 10.0(a). Accordingly, petitioners’ position has no

merit. Consequently, we find that petitioners did not prove there was an inherent

conflict of interest.

In conclusion, we hold that the assessment limitations periods were properly

extended as to Mr. Berritto for tax years 2010 through 2012 and for FAB for the

tax years ending March 31, 2011 through 2014. Accordingly, we conclude that

the SNODs at issue in these cases were timely sent to petitioners.

II.

Correlative Adjustment

Generally SNODs are presumed correct, and taxpayers generally bear the

burden of proving their determinations erroneous. See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

The Berrittos’ SNOD disallowed the deductions for management fees and

performance bonuses claimed by Enterprises for payments to FAB, which in turn

decreased the losses flowing through to the Berrittos’ returns.22 Petitioners do not

22

The Berrittos’ SNOD also disallowed other deductions claimed by

Enterprises that affected the loss that flowed through to the Berrittos’ returns,

including deductions such as rent, interest, amortization, legal and accounting fee

expenses; but petitioners did not ask for a correlative adjustment for those items

and otherwise conceded those adjustments. The Berrittos’ SNOD also increased

the Berrittos’ income by asserting constructive dividends from FAB. Those

(continued...)

-25[*25] dispute these adjustments but rather assert that they require a correlative

adjustments to FAB’s income that was not taken into account in the proposed

adjustments outlined in FAB’s SNOD. Petitioners argue that respondent is

required to reduce FAB’s income in amounts corresponding to the amounts of

Enterprises’ disallowed deductions for management fees and performance

bonuses. They contend that without such adjustments to FAB’s income they

would be “double taxed,” which they believe is unfair. For the reasons discussed

below, respondent is not required to make correlative adjustments23 to FAB’s

income.

Petitioners invite the Court to modify FAB’s income by analogizing their

cases to Alondra Indus., Ltd. v. Commissioner, T.C. Memo. 1996-32, 1996 WL

31250, at *19-*20, where correlative adjustments were made to a partnership’s

income when three related corporations made payments for management services

to the partnership they owned. In that case adjustments were made because the

corporations’ deductions for those services were disallowed and the partnership

22

(...continued)

adjustments will be discussed separately. See infra pp. 27-32.

23

We note that correlative adjustments or allocations typically arise in the

context of sec. 482. However, sec. 482 was not argued by the parties and is not at

issue in these cases.

-26[*26] was treated as a mere conduit for the transaction. Id. at *20. We find

Alondra distinguishable. In these cases we find significant that the payments were

made from a partnership (Enterprises) to a separate C corporation (FAB) that was

not directly owned. There was no direct flowthrough impact as in Alondra. In

addition the recipient entity was deemed a mere conduit in Alondra. Here the

recipient entity is a C corporation that had significant other transactions that

affected third parties24 such that it was not a mere conduit for the income.25

The tax consequences of operating a business through a C corporation are

different from those of a partnership. Pursuant to sections 701 and 702,

partnerships are flowthrough entities, which means that they do not pay tax at the

partnership level. See United States v. Basye, 410 U.S. 441, 448 (1973). A

corporation, on the other hand, is a separate taxable entity from its shareholders.

Moline Props. v. Commissioner, 319 U.S. 436, 439 (1943). Consequently, when it

is operating as a C corporation, the income is taxed first at the corporate level. See

sec. 61. And then, upon a distribution from the corporation to the shareholders,

24

One such transaction was a funded profit-sharing plan that benefited the

Berrittos.

25

Respondent also misapplies Alondra Indus., Ltd. v. Commissioner, T.C.

Memo. 1996-32. Respondent argues that Enterprises is an “S corporation,” and

that therefore Alondra should not apply. Enterprises is a partnership. Regardless

of respondent’s mischaracterization, as outlined above, Alondra is not analogous.

-27[*27] the shareholders also have tax consequences. See id. In structuring their

business as a separate taxable entity, shareholders consider whether “there was

some benefit in doing business through a corporation. They must accept the

liabilities as well as the benefits.” Noble v. Commissioner, 368 F.2d 439, 445 (9th

Cir. 1966), aff’g T.C. Memo. 1965-84. “[W]hile a taxpayer is free to organize his

affairs as he chooses, nevertheless, once having done so, he must accept the tax

consequences of his choice, whether contemplated or not.” Commissioner v. Nat’l

Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 149 (1974).

The Berrittos chose to make FAB a C corporation and themselves

shareholders of it. FAB received payments from Enterprises, which are taxable to

FAB. See sec. 61(a)(1). Petitioners have not provided any cogent legal argument,

other than citing Alondra, that would allow such payments to be nontaxable.

Likewise, this Court has not found any precedent indicating that respondent is

required to oblige their request. Because FAB has not proven its entitlement to a

reduction in income, respondent is not required to reduce FAB’s income.

III.

Constructive Dividends

The Berrittos’ SNOD likewise proposed adjustments to their income in the

form of constructive dividends. Petitioners argue that there were no constructive

dividends because double taxation would result and that respondent did not meet

-28[*28] his burden of proof regarding constructive dividends.26 For the reasons

discussed below we disagree with petitioners except to the extent of the

constructive dividends related to director’s fees. Generally, a SNOD is entitled to

a presumption of correctness. Rule 142(a); Welch v. Helvering, 290 U.S. at 115

(1933). In determining whether the Court should sustain the constructive dividend

determination, we look to the U.S. Court of Appeals for the Second Circuit to

which an appeal in these cases would lie absent a stipulation to the contrary. See

sec. 7482(b)(1) and (2); Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff’d,

445 F.2d 985 (10th Cir. 1971). That Court of Appeals has held that the

Commissioner bears the initial burden of proof and that he must establish a

reasonable connection between the taxpayer and the income-producing activity.

26

Throughout these cases respondent has, at times, not fully paid attention to

details. In his seriatim answering brief, respondent argues that petitioners “have

waived this issue by (1) not raising it in the pretrial memo, and (2) not including it

(except perhaps as an afterthought) in the issues presented portion of their opening

brief.” Respondent appears to have forgotten the multiple times petitioners have

addressed this issue. In the Berrittos’ petition they argue that FAB did not pay or

incur personal expenses on their behalf that would create a constructive dividend

in 2010, 2011, 2012, or 2013. Furthermore, while petitioners do not specifically

use the phrase “constructive dividend” in their pretrial memo, in the very first

issue petitioners ask whether they are “liable for additional ‘qualified dividends’

by virtue of * * * [Mr. Berritto’s] relationship to FAB Holdings, LLC, or should

items on that return be adjusted.” While it would have been more appropriate to

separate the two issues, petitioners did address this issue. So, while respondent

does not acknowledge all of the issues raised by petitioners, they were indeed

raised.

-29[*29] See, e.g., Llorente v. Commissioner, 649 F.2d 152, 156 (2d Cir. 1981)

(citing Weimerskirch v. Commissioner, 596 F.2d 358 (9th Cir. 1979), rev’g 67

T.C. 672 (1977)), aff’g in part, rev’g in part 74 T.C. 260 (1980). The

Commissioner must establish some evidentiary foundation linking the taxpayer to

the tax generating acts. Id.

In these cases respondent has met his burden of proof. Here the

constructive dividends at issue stemmed from the recharacterization of FAB’s

deductions for salary, legal and professional fees, medical reimbursements, longterm care insurance, employee benefits programs, director’s fees, and taxes and

licenses as dividends. These “deductions” were recharacterized because FAB paid

the Berrittos’ personal expenses. The Berrittos were clearly involved in the

transactions as evidenced by: (1) Mr. Berritto’s emails and his position as

president of FAB; (2) Mr. and Mrs. Berritto’s 50% ownership of FAB; and (3) the

manner in which income and expenses were reported on the returns for the

Berrittos and FAB. Accordingly, respondent has met his burden of showing that

there is a reasonable connection between the Berrittos and the constructive

dividends, as there is evidence linking the Berrittos to the tax generating acts.

As respondent has met his initial burden, the burden shifts to petitioners to

prove that his determinations are erroneous or arbitrary. See Helvering v. Taylor,

-30[*30] 293 U.S. 507, 514-515 (1935); see also Texasgulf, Inc., & Subs. v.

Commissioner, 172 F.3d 209, 214 (2d Cir. 1999), aff’g 107 T.C. 51 (1996).

Dividends may be formally declared or constructive. A constructive

dividend arises “[w]here a corporation confers an economic benefit on a

shareholder without the expectation of repayment, * * * even though neither the

corporation nor the shareholder intended a dividend.” Hood v. Commissioner,

115 T.C. 172, 179 (2000) (quoting Magnon v. Commissioner, 73 T.C. 980, 993994 (1980)); see also Truesdell v. Commissioner, 89 T.C. 1280, 1295 (1987).

Sections 301 and 316 govern the characterization of a corporate distribution of

property to a shareholder. If the distributing corporation has sufficient earnings

and profits, then the distribution is a dividend which is included in the

shareholder’s gross income. Secs. 301(c)(1), 316. If the distribution exceeds the

corporation’s earnings and profits, the excess is first a return of capital and any

remaining is taxed as capital gain. Sec. 301(c). The taxpayer bears the burden of

proving that the corporation lacks sufficient earnings and profits to support

dividend treatment. Truesdell v. Commissioner, 89 T.C. at 1295-1296; see also

Luczaj & Assocs. v. Commissioner, T.C. Memo. 2017-42, at *22-*23.

Petitioners’ argument regarding the treatment of the distribution stems from

their assertion that FAB is entitled to a correlative adjustment. Reducing FAB’s

-31[*31] income reduces its earnings and profits. If FAB’s income is reduced, the

Berrittos can recover some of their basis in FAB stock before recognizing gain,

thereby reducing their income tax liabilities. See sec. 301(c)(2) and (3). As

discussed supra pp. 24-27, respondent was not required to make a correlative

adjustment. Therefore, FAB’s income will remain unadjusted, and accordingly its

earnings and profits remain the same. In sum petitioners have not shown that FAB

lacks sufficient earnings and profits to pay a taxable dividend. See sec. 301. The

Berrittos chose the corporate form for FAB, and therefore they must abide by the

results of that choice. Accordingly, we sustain respondent’s determination

regarding the constructive dividends with the exception of the director’s fees as

explained below.

While we agree with respondent on the characterization of some of the

constructive dividends, petitioners have demonstrated that no economic benefit

was conferred upon the Berrittos by FAB’s deduction of the director’s fees for the

2012 and 2013 tax years, respectively. Once a petition is filed with this Court, our

jurisdiction extends to the entire subject matter of the correct tax for the taxable

year. Naftel v. Commissioner, 85 T.C. 527, 533 (1985). Consequently, we will

review the director’s fees.

-32[*32] The Berrittos included the director’s fees in their income for tax years 2012

and 2013. While the Berrittos did receive an economic benefit from such

payments, they already paid tax on this benefit because it was included as income

on their individual returns. Assuming, arguendo, that we were to conclude that the

director’s fees are a constructive dividend, the Berrittos would be required to pay

tax on the same income twice: once as director’s fees and once as constructive

dividends. Accordingly, to the extent that the constructive dividend

determinations for 2012 and 2013 relate to the director’s fees, the Berrittos have

demonstrated that respondent’s determination is erroneous.

IV.

Conclusion

In conclusion, we hold that (1) the assessment limitations periods had not

expired before the SNODs were mailed to Mr. Berritto for tax years 2010 through

2012 and to FAB for the tax years ending March 31, 2011 through 2014, (2) the

IRS is not required to make a correlative adjustment to FAB’s income, and (3) the

Berrittos failed to show that they did not receive constructive dividends, except to

the extent of the director’s fees for 2012 and 2013. In reaching our holdings, we

have considered all arguments made, and to the extent not mentioned above, we

conclude they are moot, irrelevant, or without merit.

-33[*33] To reflect the foregoing,

Decisions will be entered under

Rule 155.