Albert J. and Helen R. Desantis - Page 37

                                       - 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]."  Falconer             








Page:  Previous  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  Next

Last modified: May 25, 2011