- 24 - 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 onPage: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
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