Neonatology Associates, P.A., et al - Page 80




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            to characterize the excess contributions as compensation does not                          
            necessarily mean that the payments were compensation in fact.                              
                  The facts of this case do not support petitioners’ assertion                         
            that Neonatology and Lakewood had the requisite compensatory                               
            intent when they made the contributions to their plans.  We find                           
            nothing in the record, except for petitioners’ assertions on                               
            brief, that would support such a finding.  See Rule 143(b)                                 
            (statements on brief are not evidence).  Indeed, all reliable                              
            evidence points to the contrary conclusion that we reach as to                             
            this issue.  On the basis of our review of the record, we are                              
            convinced that the purpose and operation of the Neonatology Plan                           
            and the Lakewood Plan was to serve as a tax-free savings device                            
            for the owner/employees and not, as asserted by petitioners, to                            
            provide solely term life insurance to the covered employees.  To                           
            be sure, some of the plans even went so far as to purchase                                 
            annuities for designated employee/owners.                                                  
            2.  Lakewood’s Payments Made Outside of Its Plan                                           
                  Lakewood made payments outside of the Lakewood Plan for                              
            additional life insurance for two of its employees.  Lakewood                              
            argues that these payments are deductible in full under section                            
            162(a) as ordinary and necessary business expenses.  We disagree.                          
            For the reasons stated above, we hold that these payments are                              
            nondeductible constructive distributions to the extent they did                            
            not fund term life insurance.  The payments are deductible to the                          






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