- 17 - 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.Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011