- 33 - sufficient retained earnings to pay a dividend. Thus, application of factors (3) and (4) militates against the deductibility of any portion of the amounts paid to Mrs. Harrison during the audit years as compensation for guaranteeing loans to petitioner. Moreover, there is no evidence that businesses of the same type and size as petitioner customarily were required to pay guaranty fees to shareholders (factor (2)). Petitioner has also failed to establish what amount, if any, would have constituted a reasonable fee for Mrs. Harrison’s personal guaranties (factor (1)). There is no evidence of any significant financial risk to her. She was one of four guarantors, each jointly and severally liable for the guaranteed amounts. None of her property was encumbered under the terms of the guaranties, and there was never any threat of default by petitioner as primary debtor. Nor has petitioner shown that there was a disproportionate reliance by the bank on Mrs. Harrison’s personal assets to satisfy the potential obligations of the guarantors. Mr. Summers, when asked why the bank required 4(...continued) continuing guaranty was in effect) was not significantly different as a percentage of total officer compensation from what it had been for the years immediately preceding her guaranty. In fact, her average compensation as a percentage of total officer compensation for 1992 and 1993 (38.5 percent) was actually higher than for 1994-97 (36.5 percent). Thus, there is no evidence to indicate that the board awarded any additional compensation to Mrs. Harrison for the audit years in consideration of her personal guaranty of bank loans to petitioner.Page: Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Next
Last modified: May 25, 2011