Eric B. Benson, et al. - Page 74

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          to NPI.  See Noble v. Commissioner, 368 F.2d at 443; Truesdell v.           
          Commissioner, 89 T.C. 1280 (1987).  Nor is there any indication             
          that any of the transfers served NPI’s business purpose.                    
          Additionally, as detailed above, ERG made significant payments to           
          third parties, family members, and the Bensons themselves.  ERG             
          paid the Benson family’s personal expenses and purchased real               
          property for their sole use and enjoyment.                                  
               We disagree with the Bensons that a finding of constructive            
          dividends necessitates a declaration that NPI is a sham entity.             
          We do not find that NPI was a sham; however, we do find that                
          there is competent evidence that transfers by ERG to NPI for                
          purported royalties and engineering services during the years at            
          issue were made by Burton for his personal benefit and lacked a             
          business purpose.  Indeed, the record discloses that NPI was a              
          receptacle to which ERG transferred and pooled its operational              
          profits.  The exclusive licensing agreement and the payment of              
          engineering services were the articulated justification for these           
          payments.  As the testimony and evidence demonstrates, there was            
          a “plan” to keep ERG profits static, shuttling amounts in excess            
          thereof to NPI, clothed as business payments.  The profit level             
          of ERG was not a function of economic realities but instead of              
          tax planning and tinkering.                                                 
               The record demonstrates that Burton controlled both sides of           
          the equation; there were no arm’s-length transactions between the           






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