Brewer Quality Homes, Inc. - Page 70

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               Yet, from the notice of deficiency onward respondent clearly           
          has not taken the all-or-nothing approach.  Rather, even though             
          respondent seems to regard the intent prong as more important               
          than the reasonable amount prong, at each stage respondent has              
          applied the intent argument only to so much of petitioner’s                 
          payments to Jack as exceeds reasonable compensation.22                      
               On the basis of the record in the instant case, consistent             
          with the foregoing, we conclude that part of the amounts                    
          petitioner paid to Jack in each of the years in issue was not               
          intended as compensation.  The part that was not intended as                
          compensation in each year is the amount by which the payments               
          exceeded the amounts that we have held to be reasonable                     
          compensation.  See supra table 4.                                           

               22  For example, in the opening statement at trial,                    
          respondent’s counsel described respondent’s position as follows:            
                    It is Respondent’s position that in spite of Mr.                  
               Brewer’s contributions to Petitioner during the years at               
               issue, the payments to him over and above what Respondent              
               has allowed in the trial memorandum should be disallowed as            
               disguised dividends.                                                   
               The trial memorandum reference is as follows:                          
                    Respondent’s expert witness opinion (as modified by               
               revised Exhibit IV-3 in the rebuttal report) provides for              
               reasonable compensation for services rendered to petitioner            
               by Mr. Brewer of $599,117.00 for 1995 and $485,966 for 1996.           
               Further, the report allows additional compensation of                  
               $5,000.00 to Mr. Brewer for providing his personal guarantee           
               to secure a short-term working capital line of credit in               
               1995.  It is respondent’s position that the stated amounts             
               represent the reasonable compensation to Mr. Brewer and will           
               be sustained by the Court as such.                                     





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