Alan D. Lenzen and Dianne Lenzen - Page 14

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          characterize payments as loan repayments), affg. T.C. Memo. 1965-           
          84.                                                                         
               Petitioners alternatively argue that the payments should be            
          treated as additional compensation.  Whether amounts are paid as            
          compensation turns on the factual determination of whether the              
          payor intends at the time that the payment is made to compensate            
          the recipient for services performed.  See Neonatology                      
          Associates, P.A. v. Commissioner, 115 T.C. 43, 92 (2000), affd.             
          299 F.3d 221 (3d Cir. 2002).  The fact that petitioners now                 
          choose to characterize the payments by RAF of the Lenzens’                  
          personal expenses as compensation does not establish that the               
          payments were compensation in fact.  See King’s Court Mobile Home           
          Park, Inc. v. Commissioner, 98 T.C. 511, 514 (1992).                        
               The facts of this case do not support petitioners’ assertion           
          that RAF intended the payments of the Lenzens’ personal expenses            
          to be additional compensation.  Petitioners did not characterize            
          the payments as compensation on their 1999 income tax returns and           
          have not since filed amended returns correcting the                         
          characterization.  Mrs. Lenzen was not an employee of RAF in                
          1999.  In addition, no evidence is in the record regarding                  
          whether Mr. Lenzen’s compensation, with or without the payments             
          by RAF, was reasonable in 1999.  The reasonableness of                      
          compensation is an essential element in resolving compensation              
          versus dividend issues.  See id. at 515.  The payments by RAF of            






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