Dexsil Corporation - Page 3




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          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 that              





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