Devine Brothers, Inc. - Page 7




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          Commissioner, supra at 1324; Estate of Wallace v. Commissioner,             
          supra at 556.                                                               
               Recent cases in some Courts of Appeals have adopted a                  
          somewhat different view of this analysis, substituting instead an           
          independent investor test.  See, e.g., Exacto Spring Corp. v.               
          Commissioner, 196 F.3d 833, 838 (7th Cir. 1999), revg. Heitz v.             
          Commissioner, T.C. Memo. 1998-220.  This case is appealable to              
          the Court of Appeals for the Third Circuit, which has not adopted           
          the independent investor test but has endorsed the traditional              
          multifactor test.  See B.B. Rider Corp. v. Commissioner, 725 F.2d           
          945 (3d Cir. 1984), affg. in part and vacating in part on other             
          grounds T.C. Memo. 1982-98.  We have applied the multifactor test           
          for reasonableness, viewed through the lens of an independent               
          investor, when a case is not appealable to a circuit that has               
          addressed this issue.  See Haffner’s Serv. Stations, Inc. v.                
          Commissioner, T.C. Memo. 2002-38.                                           
               Whatever analysis is applied, petitioner has made a prima              
          facie case for reasonableness.  Respondent has provided no                  
          evidence to the contrary.  Respondent conceded in the stipulation           
          that Richard, Sr.’s salary was within the range of salaries paid            
          to similarly situated executives.  Respondent allowed all but               
          $65,000 of Richard, Sr.’s compensation.  Respondent gives no                
          reasoning for his calculation of the “excessive” compensation.              








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