dissenting and concurring.
I concur with the majority concerning the reimbursement issues, and dissent as to whether “previously taxed income” of a Subchapter S corporation is community property, and thus, divisible upon divorce.
The community received dividends paid to appellant on his separately owned stock in the Alexandria Coca Cola Bottling Company Ltd. (“Corporation”). Appellant owns 16% of the stock, which he obtained by gift and inheritance from his parents.
The amounts of dividends were as follows:
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These dividends were deposited in the joint account of Mr. and Mrs. Thomas and were used for living expenses and acquisition of community assets.
The corporation is a Subchapter S corporation, and by express stipulation and agreement of all of the shareholders of the corporation, its earnings are taxed to the shareholders individually. The jury found that $146,000 was the amount of earnings, which is called “previously taxed income,” to the appellant that provided the basis of a $73,000 award to the appellee.
It is fundamental that the division of property upon divorce is largely within the discretion of the trial court. McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex.1976). The Tex.Fam.Code Ann. § 3.63(a) (Vernon Supp.1985), provides that:
(a) In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
In applying this section of the Texas Family Code, courts have consistently held that:
Section 3.63 of the Texas Family Code affords the trial court wide latitude and discretion in dividing the community estate of the parties upon dissolution of their marriage. In reviewing the actions of the trial court, the appellate court will presume that the trial court exercised its discretion properly. The trial court’s discretion will not be disturbed on appeal unless a clear abuse has been shown.
Zisblatt v. Zisblatt, 693 S.W.2d 944, 956 (Tex.App.—Fort Worth 1985, writ dism’d).
Appellant argues that issue three, which relates to what, if any, is the “previously taxed income” of the corporation that can be attributed to the shares owned by appellant, should have included a request for reimbursement to the community or alternatively another theory of recovery. Additionally, appellant complains that issue three is not supported by any evidence and/or insufficient evidence for the jury finding supporting an award to the appel-lee of $73,000 of the “previously taxed *348income” when and if distributed by the corporation. Further, appellant alleges that the previously taxed and undistributed income held by the corporation was an award of corporate property or alimony and not community property subject to division upon divorce.
The evidence reveals that the entire income of the corporation for each year was immediately attributed on a proportional basis to the shareholders at the shareholders’ expressed request. Each shareholder was required to pay income tax on the income attributed to them. The corporation, however, frequently failed to actually distribute all of the income attributed to the shareholders, and that income was retained in the corporation as “previously taxed income” distributable to the shareholders. Thus, the corporation accumulated “previously taxed income” of the shareholders as follows:
Prev. Taxed Income Year Appellant’s Ownership Amount Attributed To Appellant
160,000 1979 7⅛% 12,000
30,000 1980 7 V0o 2,250
250,000 1981 7½% 18,750
240,000 1982 1⅛% 18,000
280,000 1983 16% 44.800
TOTAL 95.800
In 1984, the corporation accumulated $20,000 in “previously taxed income,” and in the first five months of 1985, the corporation accumulated an additional $25,000 attributable to the appellant’s interest in the corporation. The total of $153,800 agrees with the jury finding of $146,000. The trial court awarded the appellee one-half of that amount, when and if distributed, upon the basis that such was income previously distributable as “previously taxed income.”
The law is well established that a property division upon divorce is solely within the discretion of the trial court. McKnight, 543 S.W.2d at 866. The jury has no power to divide the property, its answers are only advisory regarding the disposition of property; Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975); Roach v. Roach, 672 S.W.2d 524, 529 (Tex.App.—Amarillo 1984, no writ). The jury can merely find specific facts to be used by the trial court in the exercise of its discretion. Id. Therefore, there was no need for a jury finding on whether some portion of the previously taxed undistributed income should be paid to appellee. This matter was solely in the discretion of the trial court.
Appellant also asserts that the undistributed “previously taxed income” of the corporation is not divisible upon divorce and therefore, the award to appellee constitutes alimony or the division of corporate property.
If a corporation is designated as a Sub-chapter S corporation, means that the corporation’s undistributed taxable income is taxed to the shareholders, much like income of a partnership is taxed to individual partners. Motheral v. Motheral, 514 S.W.2d 475, 477 (Tex.Civ.App.— Corpus Christi 1974, writ ref’d n.r.e.). The undistributed income of separate property partnerships is treated as community property. Grost v. Grost, 561 S.W.2d 223, 229 (Tex.Civ.App.—Tyler 1977, writ dism’d). Texas courts consistently hold that that portion of the partnership interest that consists of profits accumulated during marriage, whether or not distributed, is community property. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 681 (1953).
Accordingly, the trial court had complete discretion in the division of the undistributed but “previously taxed income” of the corporation upon divorce.
Appellant also alleges that there is no evidence, or insufficient evidence, to sup*349port the jury’s finding of $146,000 on issue three.
The evidence in the record is that there was “previously taxed income” retained by the corporation that the community had not received, but that was properly due to the community. Further, appellee’s expert witness testified that the undistributed “previously taxed income” since May 12, 1983, was $235,000.
Thus, the jury finding that the community owned $146,000 of the undistributed “previously taxed income” by the corporation is sufficiently supported by the evidence.
I respectfully dissent from the majority opinion on the subject of “previously taxed income,” and I would affirm the judgment of the trial court on that issue.