Eberl's Claim Service, Inc. - Page 29




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               11. Compensation Paid in Prior Years                                   
               An employer may deduct compensation paid in a year for                 
          services rendered in prior years.  Lucas v. Ox Fibre Brush Co.,             
          281 U.S. 115, 119 (1930); R.J. Nicoll Co. v. Commissioner, 59               
          T.C. at 50-51.  To currently deduct amounts paid as compensation            
          for past undercompensation, a taxpayer must show:  (a) That it              
          intended to compensate employees for past services from current             
          payments, and (b) the amount of past undercompensation.  Pacific            
          Grains, Inc. v. Commissioner, 399 F.2d 603, 606 (9th Cir. 1968),            
          affg. T.C. Memo. 1967-7; Estate of Wallace v. Commissioner, supra           
          at 553-554.                                                                 
               Petitioner's records show that Eberl's compensation in                 
          fiscal years 1992 and 1993 was not catchup pay.  The minutes for            
          the annual board meetings authorizing petitioner to pay Eberl's             
          salary and bonus for fiscal years 1992 and 1993 state that Eberl            
          was paid "for the current year" and do not indicate that any of             
          the payment was for prior years.  See Pacific Grains, Inc. v.               
          Commissioner, supra (corporate president was not underpaid in               
          part because taxpayer's board did not state that some part of the           
          payments were for his prior services); H&A Intl. Jewelry, Ltd. v.           
          Commissioner, T.C. Memo. 1997-467 (pay was not catchup pay where            
          minutes from shareholder meetings showed that the compensation              
          for the current year was not intended to reward the employee's              
          efforts for prior years).                                                   






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