B & D Foundations, Inc. - Page 21




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          Pepsi-Cola Bottling Co. of Salina, Inc., supra, and apply the               
          multifactor approach.  See Golsen v. Commissioner, 54 T.C. 742,             
          757 (1970), affd. 445 F.2d 985 (10th Cir. 1971).                            
               Petitioner argues, among other things, that its compensation           
          payments to Mr. Myers and Mrs. Myers for the 1996 fiscal year               
          were reasonable because their efforts enabled it to enjoy                   
          outstanding financial performance from January 1, 1987, through             
          July 31, 1996.  Petitioner claims, in light of its alleged                  
          outstanding financial performance, that an independent investor             
          would have approved the compensation paid to Mr. Myers and Mrs.             
          Myers.  Not surprisingly, respondent disputes petitioner’s                  
          claims.  In applying the multifactor approach of the Court of               
          Appeals for the Tenth Circuit, whether petitioner’s owners                  
          enjoyed a high rate of return on their equity investment is a               
          relevant factor.  The return on equity analysis (which, as                  
          discussed infra pp. 48-50, is central to the independent investor           
          test) can be especially useful in evaluating the taxpayer’s                 
          financial performance, an additional factor this Court addressed            
          in Eberl’s Claim Serv., Inc., supra.13                                      

               13In Eberl’s Claim Serv., Inc. v. Commissioner, 249 F.3d               
          994, 999 (10th Cir. 2001), affg. T.C. Memo. 1999-211, the Court             
          of Appeals noted that under the traditional multifactor approach            
          in Pepsi-Cola Bottling Co. of Salina, Inc. v. Commissioner, 528             
          F.2d 176 (10th Cir. 1975), affg. 61 T.C. 564 (1974), the                    
          situation must be considered as a whole, with no one factor being           
          decisive.  It further noted that while the factors to be                    
          considered have been stated innumerable times in past cases,                
          those factors have never been reduced to a definitive list.  Id.            
                                                              (continued...)          




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