Metro Leasing and Development Corporation - Page 17




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               F.  Independent Investor                                               
               In addition to and in conjunction with the above-considered            
          traditional tests, the Court of Appeals for the Ninth Circuit has           
          also used an independent investor test.  In Elliotts, Inc. v.               
          Commissioner, supra at 1245, that test was described as follows:            
               A relevant inquiry is whether an inactive, independent                 
               investor would be willing to compensate the employee as                
               he was compensated.  The nature and quality of the                     
               services should be considered, as well as the effect of                
               those services on the return the investor is seeing on                 
               his investment.  The corporation’s rate of return on                   
               equity would be relevant to the independent investor in                
               assessing the reasonableness of compensation in a small                
               corporation where excessive compensation would                         
               noticeably decrease the rate of return.                                
          The Court of Appeals for the Ninth Circuit has employed the                 
          independent investor test in conjunction with the other above-              
          discussed tests as another means of measuring the reasonableness            
          of officer compensation.                                                    
               Petitioner contends that we should disregard the traditional           
          tests and focus solely upon the independent investor test, in the           
          same manner as the Court of Appeals for the Seventh Circuit did             
          in Exacto Spring Corp. v. Commissioner, 196 F.3d 833 (7th Cir.              
          1999).  Petitioner contends that the traditional tests do not fit           
          petitioner’s situation, and use of the traditional tests “invites           
          arbitrary decisions”.  Before we decide whether it would be                 
          appropriate to focus solely on the independent investor test, we            
          will first consider it in light of facts of this case.                      







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