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taxmanrog, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 624
Experience:  Licensed CPA, MA, MST with 31 years' experience. Teach Accounting and Tax courses at Masters level.
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TAXMANROG CPA ONLY I was just thinking…Remember the discussion

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I was just thinking…Remember the discussion we had regarding the Corporation did not take an ordinary and necessary deduction in error over 3 years ago. As a result the Corporation had a larger profit and the shareholder paid higher taxes.
Shareholder now is going to receive this Corporate error that created the shareholder to pay higher taxes, and now realize this as a distribution to Shareholder and pay Capital Gains taxes on this again, even though the Corporation received the Benefit, not the shareholder. The shareholder will be paying taxes twice on this error; Ordinary Income and Capital Gain.
Shareholder accepts and will pay taxes twice without receiving any benefits because of this error; can this be deferred:
Since the Shareholder is going to pay S-Corporation Distribution in Excess of Basis, and this reclassification just adds to this Capital Gain Tax; can we just record this as a Corporate Receivable/note with interest from Shareholder and have the Shareholder pay this later? This would be deferring double tax to some future date?

Welcome to Just Answers! Thank you for giving me the opportunity to assist you! I will do my best to help!


Two things here:


First, I was just talking today to a colleague about amending returns that were 3 to 7 years old. There is a provision in the Internal Revenue Code that prevents REFUNDS after 3 years, but there is nothing that says you cannot still amend the return to get the correct information on the returns. He was amending old returns to properly report a capital loss that was being carried forward that had been incorrectly calculated in 2005. I am now amending 2006 to present to report RMDs that were not taken, and will result in a small amount of tax each year, but less than the tax that would be assessed if it was all reported in the current year. So, in theory, you COULD amend the old return to correct your basis!


Second, I found this on Loans to Shareholders:


To avoid problems, adopt the "walk-like-a-duck, quack-like-a-duck" strategy: Even though the shareholder may have truly intended the checks to be loans, the best way to convince the IRS of that fact is to follow all of the formalities, just as if the corporation were loaning funds to a stranger. Things like promissory notes, repayment schedules, a reasonable interest rate charge, and a track record of repayments-even if not perfect-can go a long way toward persuading an IRS auditor that the parties intended the payments to be loans.

Also, the tax code provides that a distribution made by a corporation with respect to its stock is a taxable dividend to the extent of a corporation's earnings and profits [IRC Sec. 301, 316]. Whether a shareholder's withdrawals from a corporation are loans or dividend distributions depends on whether, at the time of the withdrawals, the shareholder intended to repay the amounts received and the corporation intended to require repayment [Miele, 56 T.C. 556 (1971)]. On that issue, a shareholder's statement that he or she intended to repay can be considered. But the shareholder's statement won't prove the withdrawals were loans, especially in the case of a closely held corporation, unless it is supported by other facts indicating an arms-length transaction.

The following factors have been used by courts to determine whether a corporate advance is a loan or a dividend:

1. The extent to which the shareholder controls the corporation.
2. The earnings and dividend history of the corporation.

3. The size of the advances.

4. Whether a ceiling existed to limit the amounts advanced.

5. Whether or not security was given for the loan.

6. Whether there was a set maturity date and repayment schedule.

7. Written evidence of a loan, such as an interest-bearing note.

8. Whether the corporation ever took steps to enforce repayment.

9. Whether the shareholder was in a position to repay the loan.

10. Whether there was any indication of attempts to repay by the shareholder (e.g., Nahikian T.C.Memo. 1995-161).

The Epps case (T.C. Memo. 1995-297) is a good example of how these factors are weighed. John Epps and his wife were the sole shareholders of EMSC Inc. From the time of EMSC's incorporation, John routinely withdrew corporate funds from EMSC for his personal use. These withdrawals were recorded on EMSC's books as stockholder advances, and as "'Other Assets'" on the company's financial statements. Epps never executed any promissory notes in favor of EMSC or secured any of the withdrawals with collateral. No specific schedule for repayment was ever established. No interest was charged on the amounts Epps withdrew, and EMSC never placed a limit on the amounts available to him.

However, Epps did make repayments by crediting year-end bonuses awarded by EMSC against his outstanding stockholder advances account. And, after the IRS started an audit of EMSC, Epps transferred title to the condominium in which he lived to EMSC, in return for which $80,000 was credited to the stockholder advances account.

The Tax Court said that the "absence of the standard indicia of indebtedness weighs on the side of a constructive dividend determination." There were no written agreements or notes evidencing the loans. No interest was charged on the amounts withdrawn. There was no ceiling limiting the amount Epps could withdraw. There was no security for the loans, no set maturity date, and no efforts by the EMSC to enforce repayments.

EMSC did not pass a corporate resolution authorizing the advances, and there were no corporate minutes substantiating any formal action taken by the corporation's board of directors. Epps placed a great deal of emphasis upon EMSC's accounting for the withdrawals as loans on its books as evidence of intent to repay the advances. The court responded that while this factor did work in Epps' favor, by itself it was no enough to prove the existence of bona fide loans.

The Tax Court also did not give much weight to Epps' "repayments." The court determined that EMSC's declaration of year-end bonuses and Epps' use of those bonuses to credit his loan account were simply bookkeeping entries designed to give his withdrawals "the color of loans." The court was also dismissive of the condo transfer to EMSC. Since the transfer occurred after the IRS began its audit of MSC, the court did not find it to be "persuasive evidence of an intention to create a real debt."

If the loan is payable on demand, the deemed payment to the shareholder and the deemed repayment to the corporation are treated as if they occur annually [IRC Sec. 7872(a)(2)].

So, as long as you make sure all your "I's" are dotted and all your "t's" crossed, you should be fine with a loan to shareholder.

I hope this answers your questions! Let me know if you have any more.



Customer: replied 3 years ago.


Thanks for all that Incredible information…..If this is reclassified as a loan it will act like a loan. Before making that determination, I want to make sure the facts gives 100% substantiation, for this error being classified as a loan instead of a shareholder distribution.


  1. Is there anything in the IRS code stating if and expense is not taken in an S-Corporation; it must belong or be reclassified to the shareholder; even though it was an ordinary and necessary expense of the Corporation and the shareholder receive nothing? In this case: “use it” or the shareholder gets double taxed…..

  2. Does the Tax Accounting Entries in and S-Corporation show or imply; not taking a deduction must be classified as a shareholder distribution and the penalty will be a double tax?

  3. If a large S-Corporation books an expense entry in error in a large balance sheet account, which is not discovered for several years; the error will be reclassified as a shareholder distribution to all its shareholders? These shareholders received higher K-1 Profits as a result of the error, and will also pay a Capital Gain tax?

  4. The example of John Epps case the funds were withdrawn for personal use and received a benefit. In my shareholders case, the Shareholder received nothing; there are no personal Shareholder benefits, the Corporation received the ordinary and necessary benefits, and the shareholder already paid a higher tax as a result of the error. Since there is no other book entry to account for not taking a tax deduction;?? the Corporation would minimize the error by reclassifying the error to a loan, to either defer or escape a double tax (Capital Gain).

  5. Which brings up a new question:

    1. If this is reclassified as a Loan; shareholder could write a personal check to the Corporation in the future to pay off the loan, by-passing the Shareholders Distribution Account, escaping the 2nd Capital Gain tax??? Note: Shareholder is only looking for a deferral….escaping would be great if it is 100% justified by the given facts in the eyes of the Internal Revenue Service.

    2. Could reclassifying this error/oversight be justified because the tax was already paid with higher K-1 profits going to the shareholder and the only fair remedy is either a deferral or complete escape of the 2nd capital gain tax by reclassifying it to a Loan?

What was the original entry that was made in error? Can you give me the journal entry? Also the size, and the total assets of the corp?





Customer: replied 3 years ago.

The Accounting System is QuickBooks

The error has to do with supplies purchased at Office Depot and Staples from the Corporation Account.

The Problem was some of the supplies were used for personal use (About 5% for personal use)


It is the Policy of the Corporation to make sure Corporate Expenses are 100 Corporate expenses; for many apparent reasons.


During the Rush Period of doing Corporate Taxes it was stated to the Accountant/Bookkeeper, we need to figure out what portion of the expense was for personal use.


The Accountant put the entire expense in an account called “Research” to be reconciled. Later the entire amount was classified to Shareholder Distributions.

Chronology of Journal Entries:

Corporate Office Depot Credit Card CR

Corporate Staples Credit Card CR

Supplies DR


Supplies CR

Research DR


Research CR

Shareholder Distribution DR


The Shareholders never took distributions historically; just paid taxes on the K-1 profits and left the cash in the Corporation. This built up the Equity of the Corporation and the Shareholders had a large Positive Shareholder Basis.


It was decided currently to do a Cash Distributions to Shareholders, this is when it was noticed that the supply expense had reduced the Shareholders basis and the effects of this entry; the Corporation did not take an ordinary and necessary expense, creating larger K-1 profits to the Shareholders, and, now the Shareholder were to pay a 2nd tax because of S-Corporation Distribution in Excess of Basis.


The Shareholders understands and accept the Corporation lost an ordinary and necessary expense forever, and paid hire personal taxes as a result. This can not be changed.


The Shareholders are questioning:

  1. Do Shareholders pay a double tax (Capital Gain Tax) for this accounting error?

  2. Shareholders questioned if they did not receive anything from the Corporation what is the logic in increasing Shareholders Distribution.

  3. Shareholders questioned if they did not receive anything from the Corporation, and they paid a tax on the Corporation not taking an ordinary and necessary expense; must they pay a 2nd Capital Gain Tax.

  4. Shareholder stated if the Corporation is allowed to create an account receivable from the Shareholders, when the shareholder pays the Corporation for the supplies in which the Corporation used; isn’t this defined as an infusion of Supplies/Asset/Cash for the benefit of the Corporation? Corporation pays for supplies and later shareholder reimburses Corporation for the supplies in which the Corporation used. The only issues are the Corporation did not take an ordinary and necessary expense and the Shareholders paid higher taxes.

This brings me back to the Original Questions asked:


  1. Is there anything in the IRS code stating if and expense is not taken in an S-Corporation; it must belong or be reclassified to the shareholder; even though it was an ordinary and necessary expense of the Corporation and the shareholder receive nothing? In this case: “use it” or the shareholder gets double taxed….

  2. Does the Tax Accounting Entries in and S-Corporation show or imply; not taking a deduction must be classified as a shareholder distribution and the penalty will be a double tax?

  3. If a large S-Corporation books an expense entry in error in a large balance sheet account, which is not discovered for several years; the error will be reclassified as a shareholder distribution to all its shareholders? These shareholders received higher K-1 Profits as a result of the error, and will also pay a Capital Gain tax

This is a very small Corporation. I was just using a large Corporation has an example stating the possibility of a large Corporation making errors and finding them at some point in time in the future.

It is concluded that Corporations who has accounting errors and do not take an ordinary and necessary expense, will lose the ordinary and necessary expense forever and the Shareholders will pay higher personal taxes.


If it is concluded that a Corporation who finds an accounting error creates a double tax; the Corporation needs to set up better controls to ensure all ordinary and necessary expenses are taken to prevent the double tax in the future.


Thank You,





If this was my client, I would do a couple things.

First of all, I am sure that there are always supplies on hand in the company. I always keep inventory of supplies on hand. No one ever inventories what is here, as I am sure is also true with your office. Why couldn't you just reclassify the original amounts to prepaid supplies or supplies on hand (both current assets)? The entry would be Debit Supplies on Hand, credit Shareholder Distribution. In this case, the basis would be restored to each shareholder, and the deduction not lost.

Then, at the end of this year, have someone actually look at the supplies that are in the office, and adjust the supplies on hand account. This would be an exercise you would have to do every year, but at least the basis would be restored.

Alternatively, if you believe that there are no supplies on hand, then you could reclassify the distribution from Shareholder Distributions to Due from Shareholder, a receivable. The entry would be Debit Due from Shareholder, and Credit Shareholder Distributions. This would also restore basis, but would require the shareholders to pay back these amounts at some time in the future.

As a final method, as I said in a prior post, just because the Statute of Limitations prevents a refund, there is nothing that states you cannot amend to correct an item that carries over, such as basis.

Any of these methods would prevent double taxation. I believe that the first is preferable because it is cleaner and will result (eventually) in the proper deduction of the expense.

If you have any questions, please let me know.


Customer: replied 3 years ago.


I like what you would do. If you don’t mind I would like to continue this discussion with you and I will double your Fee.


  1. The supplies from 4 years ago are 100% used, since 80 percent of the supplies are used during the year. The General Ledger for the past 4 years did not have a Prepaid Supply expense. Therefore I would be creating the Prepaid Account in the current year, reclassifying the shareholders distributions to Prepaid Supplies. Than I would take an inventory at the end of this year and expense what is used. I agree with you if supplies were all used up it would be better to create a receivable from shareholders. Shareholders would lose the tax benefit which is justified since the tax code states if you don’t take the Expense you lose it.

  2. I like Due From Shareholder, a receivable. I like to make sure this is a true receivable given the facts:

    1. The shareholders already paid higher Personal taxes.

    2. The Corporation received and used Supplies paid for by Shareholders when the Account Receivable is paid in the future, without increasing the basis of Shareholders.

    3. If other company’s shareholders are taking cash from their company, and creating a shareholder receivable which are allowed; reclassifying this supply error entry to a Shareholder Receivable seems like it definitely passes the smell test.

QUESTIONS – The answers to each of these questions will help shareholders decide to either Reclassify the supply expense sitting in Shareholders Distributions to Accounts Receivable or just pay the Capital Gains Tax—(Double Tax) for making the error.

  1. Do you agree based upon the facts; there should not be an issue in reclassifying the Shareholder Distribution to Shareholder Receivable to prevent a 2nd capital gain tax as a result of an error?

  2. I’m assuming shareholders in practice takes cash out of a company creating a Shareholder receivable or note. Given the facts stated to you, wouldn’t creating a Corporate Shareholder Receivable be extremely safe compare to other company’s shareholders taking out cash creating an Account Receivable.

  3. When should the Shareholder receivable be paid in the future?

  4. Can this be classified as a note: accruing interest acting like a true note etc. as you previously disclosed?

  5. For Peace of Mind----Do you know of anything in the tax code, or in tax accounting practice, that states or implies; if a Corporate Expense is not taken in an S-Corporation, the Expense must be reclassified to the shareholder Distribution Account reducing the Shareholders basis and eventually paying Capital Gains tax… even though it was an ordinary and necessary expense of the Corporation and the shareholder received nothing

  6. Are there Corporations who elects not to deduct an expense because they are concerned it could be challenged by the IRS?

    1. If a Corporation makes this election to be cautious; the Shareholder of course would lose the deduction; but their Shareholder’s Basis would be decreased, eventually paying capital gain tax?

Thanks, Roger!

I don't believe the fact that the Shareholders paid a higher tax is necessary for the argument. What you are arguing is that the Corporation paid for supplies that the Shareholders used. Therefore, the Shareholders owe the Corporation for the used supplies.

If you recharacterize the distribution as a due from shareholder, there will be no capital gain as there is not distribution in excess of basis anymore.

Yes, the receivable should be a note, or at least an account receivable that charges interest.

I am not aware of anything in the tax code, other than expenses are taken as ALLOWED OR ALLOWABLE when referring to depreciation, meaning that even if you don't take depreciation on an asset that you could have, the gain is calculated as if you did take the depreciation.

I am not aware of any situation such as yours! I must say that you have an extremely honest group of shareholders. Most would just take the expense in the last year open, amend the return, and move on. Most corporations are not afraid of IRS challenges as the deduction of ordinary and necessary businesses expenses is allowed.

I actually often find myself in the exact opposite situation as you. I regularly have clients who try to deduct personal expenses through the corporation. Just today, in fact, I have a woman who owns a construction company, a very profitable one, and she bought a condo for her daughter to live in, and a house for her son. She has both listed on the balance sheet as "Investments" since they were purchased at a great price due to foreclosure. She wants to deduct the interest on the purchase and depreciation on them. I told her since they were supposedly investments for capital appreciation, there is no depreciation. Also, the mortgage interest and real estate taxes would have to be capitalized and not expensed. So, as I said, people usually try to be aggressive with deductions, not as conservative as you are!

If you have questions, I would be happy to answer them, but it won't be until later tonight - I have to teach until 10pm. Young minds have to be molded! LOL!


Customer: replied 3 years ago.

Thank You…Very Much Appreciate your Answers.


The Shareholders do have the same principles and values; we are grateful to live in the USA and we believe in paying our share of taxes to protect the Country etc. Finding Shareholders with these qualities has built an incredible business relationship.


Note: The Shareholders electing to lose the Corporate expense for not taking them is the right decision, because it is the law. The Shareholders only want to pay their fair share and we feel there is something incorrect with declaring supplies, the company used as a Shareholder Distribution and paying another tax….Unless this is also the law, and then the shareholders will pay the 2nd tax.


YOU ANSWERED: When you state the shareholders will have to argue that the Corporation paid for supplies that the shareholders used.

  1. The Shareholders will not argue this point. The Shareholders will state the Corporation used 95% of the supply expenses and the Shareholder only used 5%. The shareholders wants to state the facts exactly as they happened and know the IRS will agree with the Shareholder Loan Receivable. Are you stating the facts as presented will not allow the reclass to Shareholder Loan/Receivable?

  2. If this situation is highly unusual, the shareholder wants to present the facts as they are, even showing the shareholders paying a higher tax because the Corporation did not take Allowable Expense. The facts shows the Shareholders are not trying to escape a tax, just trying to prevent from paying a 2nd tax. The shareholders want to know if the second tax is mandatory, because of the facts presented; than the second tax would be paid.

  3. One shareholder mentioned he remembered someone stating their company eliminates expenses that are questionable. There might be many companies who take a conservative approach to tax filings and eliminate expenses. Are the elimination of expenses reclassified to Shareholder Distributions and the Shareholders tax twice in all these companies?

  4. Doesn’t it seem reasonable that the IRS would not penalize a Corporation for taking a very conservative approach in reporting taxes; and not classified the transaction as a Shareholder distribution; especially since the government is already receiving a benefit/tax?

  5. I guess, or you would think, there would be an offsetting General Ledger account which the Corporation uses to account for these types of Tax eliminating Entries? (Like Goodwill etc.)

  6. I remember you mentioned Permanent M-1 expenses on the books not recorded on the tax return; are deducted from Shareholder basis. Meal and Entertainment would be a permanent m-1 expense which should be deducted from Shareholders basis because they received 50 percent of a meal. In the case of the Corporate Supplies, the shareholders receive nothing and the shareholders paid higher taxes for buying the Corporation supplies. This seems like it would not be the intent of the Permanent M-1 Expense. Wouldn’t this justify the reclassifying the supplies to a Shareholder’s Accounts Receivable?

No, I am not aware of any corporations that would take eliminated expenses as shareholder distributions. The only way I have seen them treated is as non-deductible expenses on the Schedule K-1. This would reduce the shareholder's basis in the corporation.


As far as the shareholders paying the first tax, this is an unusual way of looking at it. The fact that they gave up the full deduction that was allowed is beyond conservative. The tax code states in more than one place that the failure for a taxpayer to properly take a deduction or seek a reimbursement is not the IRS' fault, and that the Taxpayer is responsible for any tax on this failure. In your situation the IRS would see the failure of your accountant to properly amend the return during the three year period allowed as a problem for the Taxpayers to address, not the IRS.


After reading the facts as you stated them two posts above, I believe that the proper method would be go back and amend the return, which would not result in any refund due to the statute of limitations, but would correct the basis issues, or you could handle the expenses as a Schedule M-1 nondeductible item, which would also reduce the basis. In either case, the basis in the corporation would be reduced. The shareholders have paid an increased income tax four years ago, They now may face paying tax again if they do not have any basis restored and receive any distributions.


It is refreshing to see taxpayers who actually have ethics! I just discussed the importance of ethics in financial reporting in the class I taught tonight. It is one of those concepts that is so important to accurate financial and tax reporting.


One other thing to remember though. A famous Federal District Court judge, by the name of Judge Learned Hand, said that it was every taxpayer's duty to arrange their affairs so as to minimize the amount of tax that was paid, that there was nothing patriotic about overpaying tax! Google him sometime. He was a well-respected judge, and has many great quotes.


Thanks again for this great question! As I said, I have not seen anything similar to this in 28 years of practice!




So when the Schedule M-1 reduction, as I stated in an earlier response, is used as the proper treatment, the basis in the corporation would be reduced. Is this reduction the source of the distribution in excess of basis? Or is this reduction in basis causing a later distribution to be a distribution in excess of basis?


Any distribution that you classify as a loan would have to be documented as a receivable. However, this is only postponing the inevitable. There will be a time when the Shareholder will either have to pay the receivable (an actual cash cost to the shareholder) or take the receivable as a distribution (which would cause a distribution in excess of basis unless the basis has been restored through profits).



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