UAL Corporation and Subsidiaries - Page 12




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          the relevant statute4 and regulations5 do not require an “intent            
          to compensate” as a prerequisite to deductibility under section             
          162(a)(1).  Although an “intent to compensate” requirement has              
          been applied by the courts in numerous cases, the instant                   
          situation is factually distinguishable from the situation in                
          those cases which involved corporate payments to shareholders or            
          employees in positions of control.  E.g., Paula Constr. Co. v.              
          Commissioner, 58 T.C. 1055, 1058-1059 (1972), affd. without                 
          published opinion 474 F.2d 1345 (5th Cir. 1973).  In the context            
          of corporate payments to shareholders, careful scrutiny is                  
          required to determine whether the alleged compensation is in fact           
          a disguised dividend.  Owensby & Kritikos, Inc. v. Commissioner,            
          819 F.2d 1315, 1324 (5th Cir. 1987), affg. T.C. Memo. 1985-267;             
          Home Interiors & Gifts, Inc. v. Commissioner, 73 T.C. 1142, 1156            
          (1980).6  If a corporate payment to a shareholder/employee is               

               4Sec. 162(a)(1) allows a deduction for all ordinary and                
          necessary expenses paid or incurred during the taxable year in              
          carrying on a trade or business, including “a reasonable                    
          allowance for salaries or other compensation for personal                   
          services actually rendered”.                                                
               5“The test of deductibility in the case of compensation                
          payments is whether they are reasonable and are in fact payments            
          purely for services.”  Sec. 1.162-7(a), Income Tax Regs.                    
               6In Elliotts, Inc. v. Commissioner, 716 F.2d 1241 (9th Cir.            
          1983), revg. and remanding T.C. Memo. 1980-282, the Court of                
          Appeals for the Ninth Circuit discussed the problem of                      
          determining whether purported compensation payments are in fact             
          disguised dividends.  The Court of Appeals noted that the test              
                                                             (continued...)           






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