Eric B. Benson, et al. - Page 65

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          negotiation between the two warring brothers.57  Under these                
          circumstances, this is the best indication of the intent of the             
          parties and the value of the use of the property at that time.              
          Helba v. Commissioner, 87 T.C. 983 (1986), affd. without                    
          published opinion 860 F.2d 1075 (3d Cir. 1988); see Zirker v.               
          Commissioner, 87 T.C. 970 (1986).  Furthermore, the “excess rent”           
          ERG paid pooled money in NPI, which as we later discuss, was used           
          for the Benson family’s economic benefit.  Accordingly, we find             
          and hold that Burton had constructive dividend income of $40,067,           
          $46,560, and $63,444 in 1990, 1993, and 1994, respectively.                 
               8.  ERG Payments to NPI for Rent on Lowell Plant                       
               In the unbundling agreement the brothers agreed to enter               
          into an 8-year lease with respect to the Lowell plant, which was            
          to provide that Glendon would pay NPI $2,000 per month.  In 1988,           
          a confirming commercial lease was prepared but not executed.                
          This lease agreement was for a term of 8 years to commence in               
          March 1988 and provided for a rental payment by “Acker [sic]                
          Industries, Inc.” of $2,000 per month.                                      
               During the years at issue, neither Glendon nor Aker paid               
          rent to NPI for use of the Lowell plant.58  Instead, ERG paid               

               57Respondent requested the Court to find that the unbundling           
          agreement was “the result of intense arm’s-length bargaining”.              
          Petitioners failed to object to this requested finding.                     
               58Glendon explained why he failed to pay rent:                         
                                                             (continued...)           





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