Brewer Quality Homes, Inc. - Page 35

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               income due to payroll taxes on reported compensation.[10]              
               This calls into question the appropriateness of an                     
               undercompensation analysis in the years 1986 through 1993.             
               Firstly, for 2 of the 8 years Hakala refers to (1986 and               
          1988), petitioner was a C corporation, not an S corporation.  It            
          is not clear whether these mistakes were merely “harmless error”            
          or whether this affected Hakala’s conclusions.                              
               Secondly, if Hakala’s thesis is correct, that this                     
          “incentive” affected petitioner’s actions during the C                      
          corporation years, then it becomes relevant to determine whether            
          (and to what extent) it also affected the similar-sized                     
          businesses that provided the underlying data for the RMA ratios.            


               10  In general, an S corporation shareholder is taxed on the           
          shareholder’s pro rata share of the corporation’s income,                   
          regardless of whether the shareholder actually receives a                   
          distribution.  Sec. 1366(a)(1).  Where the shareholder is also an           
          employee of the corporation, there is an incentive both for the             
          corporation and for the employee-shareholder to characterize a              
          payment to the employee-shareholder as a distribution rather than           
          as compensation because only payments for compensation are                  
          subject to Federal employment taxes.  See secs. 3111, 3301.  In             
          such instances, the Commissioner may recharacterize a                       
          distribution as compensation in order to reflect the true nature            
          of the payment.  See Rev. Rul. 74-44, 1974-1 C.B. 287                       
          (“dividends” paid to S corporation shareholders treated as                  
          reasonable compensation for services rendered and subjected to              
          Federal employment taxes); see also Veterinary Surgical                     
          Consultants, P.C. v. Commissioner, 117 T.C. 141, 145-146 (2001),            
          affd. sub nom. Yeagle Drywall Co. v. Commissioner, 54 Fed. Appx.            
          100 (3d Cir. 2002).                                                         
               Although Hakala argued that petitioner may have practiced              
          tax gamesmanship in one or more of the years before 1995, the               
          record does not disclose that respondent made a determination on            
          this matter, nor can we tell from the record whether petitioner             
          did distort the situation.                                                  





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