Tesco Driveaway Co., Inc. - Page 3




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          July 31 fiscal year, and Doyce Gentry and his sons were cash                
          method taxpayers using the calendar year.                                   
               Petitioner had sufficient funds in its bank accounts prior             
          to the end of its 1994 fiscal year to pay $100,000 in                       
          compensation to Doyce Gentry and his sons.  Petitioner did not              
          pay compensation to Doyce Gentry or his sons until after the end            
          of that fiscal year.  Indeed, except for the $100,000 in                    
          compensation at issue here, petitioner had not awarded and had              
          not paid any compensation to Doyce Gentry or his sons from the              
          time of its formation in 1991 until after the end of petitioner’s           
          1994 fiscal year.                                                           
               Petitioner’s bylaws provided that its officers and employees           
          shall receive salaries and other compensation “as shall be                  
          determined by resolution of the Board of Directors * * * or by              
          employment contracts entered into by the Board of Directors.”               
          The Board of Directors did not adopt any formal resolution                  
          awarding or setting the amount of the compensation prior to the             
          end of petitioner’s 1994 fiscal year.  Nor was there any prior              
          written agreement between petitioner and the Gentrys, such as an            
          employment contract, setting the amount of compensation that                
          would be awarded to them.                                                   
               Petitioner took no formal action prior to the end of its               
          1994 fiscal year to segregate physically or set apart the                   
          $100,000 in compensation for Doyce Gentry and his sons.  Nor did            






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