Beiner, Inc. - Page 29

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          approximately 38 hours a week as its most valuable employee.  Nor           
          does the record support respondent’s second assertion that                  
          Beiner’s brother was a primary income-producing factor in                   
          petitioner’s business.  When Beiner caused petitioner in 1992 to            
          limit its business to Allen-Bradley parts, Beiner’s brother                 
          disaffiliated himself entirely from any continued participation             
          in the business.  Although respondent notes correctly in his                
          third assertion that Beiner spent approximately one-third of his            
          time during the subject years working for California Controls,              
          respondent ignores in this regard that Beiner spent the other               
          two-thirds of his time working for petitioner in a role that was            
          most significant to its existence and profitability.                        
               We conclude that a hypothetical inactive independent                   
          investor would consider this factor favorably to require the                
          payment of the disputed compensation to Beiner in order to retain           
          his services during each of the subject years.                              
               2.  External Comparison                                                
               This factor compares the employee’s salary with the salaries           
          paid by similar companies for similar services.  Elliotts, Inc.             
          v. Commissioner, 716 F.2d at 1246.                                          
               Wertlieb’s testimony is the only evidence in the record as             
          to this factor.  Wertlieb reviewed the financial statements of              
          the 34 referenced companies and the compensation paid to their              
          chief executive officers.  Wertlieb opined that petitioner was              






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Last modified: May 25, 2011