- 44 - because (as discussed in this section) the evidence strongly suggests an intent to distribute profits to Mrs. Harrison in the guise of compensation, we find that an independent investor in petitioner would object to the size of Mrs. Harrison’s compensation, even assuming arguendo that petitioner’s retained earnings for the audit years represented a reasonable return on shareholder equity when viewed in relation to the ROE at comparable companies. Thus, application of this factor furnishes additional evidence that Mrs. Harrison was greatly overcompensated during the audit years.6 6 Even assuming petitioner’s ROE were relevant to our decision in this case, petitioner’s computation of ROE during the audit years is open to question. Petitioner argues that ROE represents net profit (after taxes) divided by equity (defined as invested capital plus retained earnings less treasury stock), and that petitioner’s ROE for the audit years was either 22 percent (using beginning year equity) or 12.3 percent (using the average of beginning year and yearend equity). Petitioner stresses that either result compares favorably with the 14.9 percent ROE for comparably sized companies during the same period as compiled by Mr. Carey. Petitioner ignores ROE derived from using yearend equity, presumably because, under that approach, average ROE for the audit years is 7.4 percent, substantially below the 14.9 percent average ROE for comparably sized companies. In fact, it is unclear which of the three approaches is proper in this case because it is not known which approach was used in the computation of ROE for the comparably sized companies reflected in Mr. Carey’s report. Another reason to question the use of petitioner’s annual ROE in evaluating shareholder return is the inability to follow, on the basis of the returns as filed, all of the year-to-year changes in equity. For several years, those changes cannot be explained by the income (or loss) for the year, and the description of the reconciling item is either unclear or not (continued...)Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
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