- 88 - 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,Page: Previous 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 Next
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