Square D Company and Subsidiaries - Page 105

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          the compensation paid with respect to the services rendered in a            
          given taxable year.                                                         
               In December 1992, petitioner paid Retention Payments and               
          1991 SRP Benefits to the Retained Executives totaling                       
          $15,867,291.  Of this amount, petitioner deducted $10,384,490--             
          consisting of the total44 of the 1991 SRP Benefits payments and             
          related interest paid to the Retained Executives in 1992                    
          ($4,191,053), plus that portion of the aggregate Retention                  
          Payments paid in 1992 with respect to which petitioner took the             
          position that “economic performance” (within the meaning of                 
          section 461(h)) had occurred in 1992 ($6,193,437).45  The                   
          remaining $5,482,801 in Retention Payments paid in 1992 was                 
          deferred, according to petitioner, pursuant to section 461(h) and           
          deducted ratably in petitioner’s 1993, 1994, and 1995 taxable               
          years.                                                                      
               Having thus taken the position that $10,384,490 in Retention           
          Payments and 1991 SRP Benefits was earned by the Retained                   
          Executives in 1992, it is incumbent upon petitioner in our view             
          to demonstrate clearly and convincingly that these amounts, when            


               44 Petitioner contends that the entire 1991 SRP Benefits               
          payment (plus interest) was deductible when paid in 1992 because,           
          unlike the Retention Payments, such amount was not subject to               
          clawback.                                                                   
               45 Petitioner has also stipulated that the amount of the               
          Retention Payments and 1991 SRP Benefits that was earned by the             
          Retained Executives in 1992 was $10,384,490.                                





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