- 37 - payments to a partner for services * * * shall be considered as made to one who is not a member of the partnership, but only for the purposes of section 61(a) (relating to gross income), and, subject to section 263, for purposes of section 162(a) (relating to trade or business expenses). Whether a partner is acting in his capacity as a partner while providing services to his partnership is a factual determination. Falconer v. Commissioner, 40 T.C. 1011, 1015 (1963). The regulations indicate: "In all cases, the substance of the transaction will govern rather than its form." Sec. 1.707-1(a), Income Tax Regs. The inquiry under section 707(c) is whether the payments for petitioner's services were determined "without regard to the income of the partnership." Falconer v. Commissioner, supra at 1016; see also sec. 1.707-1(c), Income Tax Regs. We are satisfied that the facts of this case clearly place the payments made to petitioner pursuant to the "Ongoing Financial and Tax Analysis, and Investment Counseling [Agreements]", within the ambit of the term "guaranteed payments" pursuant to section 707(c). Petitioner contracted with each partnership to provide the latter with financial consulting services for a fixed fee. The fees were not dependent upon the profits of the partnerships. Therefore, the fees were determined "without regard to the income of the [partnerships]." FalconerPage: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
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