John L. Ginger Masonry, Inc. - Page 22

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          potentially exploitable relationship may exist where, as in this            
          case, the * * * [employees are] the taxpaying company's sole or             
          controlling shareholder[s]".  Elliotts, Inc. v. Commissioner,               
          supra at 1246.                                                              
               The relationship in this case, where Ginger and his wife               
          were petitioner's sole shareholders, warrants scrutiny.  Id.  The           
          mere existence of such a relationship, coupled with an absence of           
          dividend payments, however, does not necessarily lead to the                
          conclusion that the amount of compensation is unreasonably high.            
          Id.  They are relevant factors but are not to be viewed in                  
          isolation.  Id. at 1247.  Furthermore, we shall not presume a               
          disguised dividend from the bare fact that a profitable                     
          corporation does not pay dividends.  Id. at 1244; Owensby &                 
          Kritikos, Inc. v. Commissioner, 819 F.2d 1315, 1326-1327 (5th               
          Cir. 1987), affg. T.C. Memo. 1985-267.                                      
               The Court of Appeals for the Ninth Circuit formulated the              
          inquiry in such a situation by evaluating the compensation                  
          payments from the perspective of a hypothetical independent                 
          investor.  The prime indicator is the return on its investors'              
          equity. Owensby & Kritikos, Inc. v. Commisisoner, supra at 1326-            
          1327.  If the company's earnings on equity after payment of the             
          compensation remain at a level that would satisfy an independent            
          investor, there is a strong indication that management is                   
          providing compensable services and that profits are not being               
          siphoned out of the company disguised as salary.  Elliotts, Inc.            




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