- 22 - particular employee in previous years; and (j) whether the employer offers a pension plan or profit-sharing plan to its employees. See Mad Auto Wrecking, Inc. v. Commissioner, supra (and the cases cited therein). Recently, the Court of Appeals for the Seventh Circuit has expressed its disagreement with a multifactor test, opting instead to rest its analysis of the reasonableness of compensation primarily on whether an independent investor would have approved of the amount of compensation paid to the employee. Exacto Spring Corp. v. Commissioner, 196 F.3d at 838-839. The court observed that the Courts of Appeals for the Second and Ninth Circuits have concluded somewhat differently by requiring that the various factors of the traditional test be analyzed from the perspective of an independent investor. Id. at 838; accord Eberl’s Claim Serv., Inc. v. Commissioner, 249 F.3d 994, 1003-1004 (10th Cir. 2001) (court rejected independent investor test in lieu of a multifactor approach), affg. T.C. Memo. 1999-211. Our jurisprudence has also applied a multifactor test through the lens of an independent investor, in the setting of a case that was not appealable to a circuit that had already recognized such an application. Wagner Constr., Inc. v. Commissioner, T.C. Memo. 2001-160 (venue was the Eighth Circuit); see also Tricon Metals & Servs., Inc. v. Commissioner, T.C. Memo. 1997-360. We followPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011