- 32 - question): “Would a hypothetical independent investor consider the factor favorably to require the payment of the bonuses to the employee in order to retain the services which the employee performed during the subject years?” An answer in the negative indicates that the payment of a bonus was not sufficiently tied to the employee’s services to constitute personal service income but was more likely a distribution of earnings. An answer in the affirmative supports deducting the bonuses as personal service compensation. The reasonableness of the amount of the employee’s compensation (inclusive of the bonuses) then hinges on whether the hypothetical independent investor, after taking into account the amount of the compensation, would receive at least the minimum return anticipated on an investment in the employer. a. Employee’s Qualifications We analyze the qualifications of Emile and Louise. Each has worked in petitioner’s business since its inception, and each understands petitioner’s operation well. Petitioner’s profitability during the subject years, however, did not rest upon the personal qualifications of Emile or Louise but rested more appropriately upon the volume of its sales, which, in turn, hinged on the price at which petitioner sold its gasoline and home heating oil. In the particular industry of which petitioner was a part, the marginal skills of Emile and Louise were not critical to petitioner’s profitability. Neither Emile’s norPage: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Next
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