Frank and Barbara Biehl - Page 34




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          Biehl.  The motion asserts:                                                 
               FEB will be greatly prejudiced by receiving the single                 
               Form 1099 * * * [Had] NCM issued two separate Form                     
               1099's, FEB and his tax advisors believe the IRS would                 
               treat only $799,000 as FEB’s earned income * * * No AMT                
               results if FEB is required to report only $799,000 as                  
               provided in the settlement by specifically separating                  
               the payments.  There was no other reason to provide for                
               separate payments to FEB and Olimpia, Whelan, and                      
               Lively.                                                                
                    While this issue has obvious importance and                       
               potential tax consequences to FEB, to NCM it is a                      
               distinction without a difference, whether NCM issues                   
               two Form 1099's * * * or a single Form 1099 to FEB                     
               should not matter to NCM, either way, NCMI has an                      
               expense of $1,200,000 and the result to the payor is                   
               the same.  Thus, whether NCM issues one or two Form                    
               1009's is simply an administrative task.                               
               From the foregoing admissions it can fairly be inferred that           
          the separate payment to Mr. Biehl’s attorney was negotiated on              
          his behalf in a futile effort to minimize his Federal income tax            
          liability, not to serve any business purpose of NCMI that could             
          be fulfilled by any current performance of services by Mr. Biehl            
          on behalf of NCMI.                                                          
               There are intimations in the settlement documents and                  
          petitioners’ briefs that the global settlement reached by NCMI              
          and petitioners served the business purposes of NCMI by avoiding            
          its bankruptcy and trial of petitioners’ other claims, thereby              
          enabling NCMI to continue as a viable business entity.                      
          Petitioners also intimate that the separate payment arrangement             
          was of critical importance and that the parties could not have              
          achieved the settlement without the separate payment arrangement.           





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