Beiner, Inc. - Page 24

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          supra at 1243-1245.  The five factors are:  (1) The employee’s              
          role in the company; (2) a comparison of the compensation paid to           
          the employee with the compensation paid to similarly situated               
          employees in similar companies (external comparison); (3) the               
          character and condition of the company; (4) whether a conflict of           
          interest existed that might have permitted the company to                   
          disguise dividend payments as deductible compensation; and (5)              
          whether the company’s payments of compensation to all of its                
          employees were internally consistent (internal consistency).  Id.           
          at 1245-1248.  As to each factor, we ask ourselves the following            
          question:  “Would a hypothetical inactive independent investor              
          consider the factor favorably to require the payment of the                 
          disputed compensation to Beiner in order to retain his services             
          during each of the subject years?”  See Haffner’s Serv. Stations,           
          Inc. v. Commissioner, supra; cf. Elliotts, Inc. v. Commissioner,            
          supra at 1245.  An answer in the negative indicates that the                
          payment of the compensation was not sufficiently tied to Beiner’s           
          services to constitute personal service income but was more                 
          likely a distribution of earnings.  An answer in the affirmative            
          supports deducting the disputed compensation as personal service            
          compensation.  A relevant consideration in answering our question           
          is whether the hypothetical inactive independent investor, after            
          taking into account the amount of the compensation paid to                  
          Beiner, would receive at least the minimum return anticipated on            






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