E.J. Harrison and Sons, Inc. - Page 36

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          Memo. 1978-394; Allison Corp. v. Commissioner, T.C. Memo. 1977-             
          166.  In each of those cases, and in R.J. Nicoll Co. v.                     
          Commissioner, 59 T.C. 37 (1972), cited by petitioner, the Court             
          simply listed a key employee-shareholder’s personal guaranty of             
          corporate employer debt as one of several positive contributions            
          by the employee to the corporate employer.  All of those no-fee             
          cases involve a key employee, usually the person (or one of the             
          persons) most responsible for the success of the corporate                  
          employer.  No specific compensatory amount is attributed to the             
          guaranty, and in none of the cases is it certain that the Court             
          would have reached a different result in the absence of the                 
          guaranty.5  Moreover, in Owensby & Kritikos, Inc. v.                        
          Commissioner, supra, the Court of Appeals for the Fifth Circuit             
          hedged its comment regarding the relevance of the loan guaranties           
          by noting that “[t]he record is unclear * * * as to the amount or           
          riskiness of these loans”, an allusion to factor (1) in the                 
          guaranty fee cases.                                                         
               Mrs. Harrison’s loan guaranties represented one of her                 
          principal contributions to petitioner.  They did not, as in the             


               5  In Adolph Hanslik Cotton Co. v. Commissioner, T.C. Memo.            
          1978-394, the Commissioner argued that an amount paid for the               
          guaranty of a line of credit is not “compensation for personal              
          services actually rendered” within the meaning of sec. 162(a)(1)            
          and, therefore, may not be considered in finding the amount that            
          constitutes “reasonable” compensation.  We declined to address              
          that argument on the ground that “[o]ur finding would be the same           
          regardless of whether guarantying such obligations may properly             
          be considered.”  Id. at n.14.                                               




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