FLOMARCY COMPANY, Inc., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Jose BENSAUDE and Maria Bensaude, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

Nos. 29, 30, Dockets 27961, 27962.United States Court of Appeals, Second Circuit.Submitted November 6, 1963.
Decided November 22, 1963.

Samuel Zuckerman, New York City, for petitioners.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Melva M. Graney and Alec A. Pandaleon, Attys., Dept. of Justice, Washington, D.C., for respondent.

Before WATERMAN, MOORE and SMITH, Circuit Judges.


Flomarcy Company, Inc. and its controlling shareholders appeal from a decision of the Tax Court, T.C.Memo. 1962-201, upholding the assessment of deficiencies against the petitioners for failure to report income which the company had earned but which petitioners had caused to be paid to third parties. The taxpayers introduced no evidence, and it is well settled that deficiency assessments of the Commissioner are presumptively correct. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933); Brown v. Commissioner, 141 F.2d 307, 309 (2 Cir. 1944). The argument made on this appeal that the government should have the burden of proof because a constructive dividend is a legal fiction is without legal or logical basis. The decision of the Tax Court is affirmed.