- 3 - Hypothetical or Independent Investor Test Petitioner argues that Lynn's compensation passes the hypothetical investor test, asserting that "there is overwhelming evidence in the record that Dexsil's financial performance would have overjoyed a hypothetical investor." The data on which petitioner relies, however, is ambiguous. As set forth in the tables in the Court of Appeals' opinion, Dexsil Corp. v. Commissioner, 147 F.3d at 99, petitioner's return on equity varied substantially from year to year and declined for the years in issue. By another calculation, the return on equity over the time that the company was controlled by Lynn averaged an annual rate of 15 percent. The increase was almost entirely in retained earnings; dividends were an insignificant percentage of the calculation. Lynn's salary and bonus, on the other hand, increased substantially over the same years. The only evidence at trial relating to the rate of return acceptable to a hypothetical investor was petitioner's expert's compilation of data on New York Stock Exchange companies. There was no evidence, however, that those companies were comparable to petitioner or that the average return of those companies would be satisfactory to a hypothetical investor in a company with the degree of risk associated with petitioner's business. There was no analysis of the significance of dividends paid as contrasted to unrealized appreciation. Thus, we could not determine thatPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011