Eric B. Benson, et al. - Page 67

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          obligation to pay Aker’s rent obligations.  Indeed, it was, as              
          the arbitrators concluded, Aker’s responsibility to pay NPI for             
          the use of the Lowell plant, which Glendon ultimately paid by               
          virtue of the final arbitration decision.  This, of course, is in           
          accord with what the brothers agreed in the unbundling agreement.           
          Given that these funds were transferred to NPI, which the Bensons           
          used for their personal benefit, see infra, we find and hold that           
          the Bensons received constructive dividends in the amounts of the           
          excess rents that ERG paid.                                                 
               9.  Director’s Fees                                                    
               During the years at issue, ERG paid moneys to Esther,                  
          Elizabeth, Mark, Brad, and Eric as purported director’s fees.               
          Additionally, in 1994, Burton altered the date on a $12,000 check           
          previously issued to his mother and negotiated it shortly after             
          her death.  Burton testified that this check also represented               
          director’s fees paid to his mother.  Respondent argues that all             
          these payments represent constructive dividends to Burton.  We              
          agree with respondent.                                                      
               At trial, Burton generally testified that his family members           
          were directors of ERG, that ERG held meetings from time to time,            
          and that the purported directors performed services for ERG.                
          However, he did not testify what services the purported directors           


               59(...continued)                                                       
          will resolve the difference in their Rule 155 computation.                  





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