Frank and Barbara Biehl - Page 33




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          payment directly to Olimpia, Whelan, & Lively.  The settlement              
          agreement does not refer to the attorney’s fee as being incurred            
          “in connection with” Mr. Biehl’s duties as an employee, or as               
          having been incurred “for” NCMI or “on behalf of” NCMI or                   
          incurred by Mr. Biehl “as an agent” of NCMI, nor does it make any           
          reference to a reimbursement arrangement.                                   
              It is clear that the terms of the settlement (and events               
          subsequent thereto) providing for NCMI’s direct payment to Mr.              
          Biehl’s attorney of his attorney’s fee in prosecuting his                   
          termination claim served Mr. Biehl’s tax purposes, not any                  
          designated business purpose of NCMI.  As Mr. Biehl admitted in              
          his motion and supporting affidavit in the California Superior              
          Court to enforce the settlement agreement, the form and method of           
          making the settlement payment or payments was a matter to which             
          NCMI was completely indifferent.                                            
               The exhibits made part of the stipulation of facts on which            
          this case has been submitted for decision include not only the              
          settlement agreement pursuant to which NCMI paid $799,000 to Mr.            
          Biehl and $401,000 to the account of his attorney, Olimpia,                 
          Whelan, & Lively, but also petitioners’ motion papers                       
          subsequently filed with the California Superior Court in the                
          termination lawsuit to enforce the terms of the settlement.  The            
          gravamen of petitioners’ motion was that NCMI had violated the              
          terms of the settlement by issuing a single Form 1099 to Mr.                






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