Medieval Attractions N.V - Page 141

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               We are guided by prior cases in reviewing the evidence here.           
          If payments in dispute are contingent compensation pursuant to a            
          contract, the circumstances to be taken into consideration are              
          those existing at the date when the contract for services was               
          made, not those existing at the date when the contract was                  
          questioned.  American Foundry v. Commissioner, 59 T.C. 231, 244             
          (1972), affd. in part and revd. in part 536 F.2d 289 (9th Cir.              
          1976); sec. 1.162-7(b)(3), Income Tax Regs.  The past and present           
          financial condition of the company is relevant.  Home Interiors &           
          Gifts, Inc. v. Commissioner, 73 T.C. 1142, 1156 (1980).                     
          Evaluating the compensation as a percentage of net income, rather           
          than of gross receipts, is in most cases more probative because             
          it more accurately gauges whether a corporation is disguising the           
          distribution of dividends as compensation.  Owensby & Kritikos,             
          Inc. v. Commissioner, supra at 1325-1326.                                   
               The Eurotor/MTNV January 24, 1983, contract for management             
          services established a fee of 50 cents per patron.  The                     
          attendance figures and profitability of the company were unknown            
          at the time of the contract because the Kissimmee castle did not            
          open until December 1983.  The MSI contract, which was in effect            
          during the years in issue, was essentially a renegotiation of the           
          January 24, 1983, contract.  The MSI contract changed the fee               
          from 50 cents per client to a fee of 2 percent of gross                     
          production.  Based on MSI’s 1988 and 1989 tax years, during which           
          gross production was $11,338,915 and $12,714,857, respectively,             




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