The U.S. Supreme Court, with Justice Souter writing the unanimous opinion in Boulware v. United States, resolved the question of "whether a distributee accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that either he or the corporation intended a capital return when the distribution occurred."  The Court held that:

"Sections 301 and 316(a) govern the tax consequences of constructive distributions made by a corporation to a shareholder with respect to its stock.  A defendant in a criminal tax case does not need to show a contemporaneous intent to treat diversions as returns of capital before relying on those sections to demonstrate no taxes are owed."

See also Paul Caron’s Tax Prof Blog here.

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