Gerald E. Johnson and Dorothy Johnson - Page 14

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          333.12  In reliance on McNamara II, petitioners contend that                
               the Johnsons are receiving fair market value rental                    
               payments.  Although this may result in little or no                    
               other compensation being paid to the taxpayers for the                 
               services they provide to the corporation, this does not                
               establish the required nexus between the rental pay-                   
               ments and the material participation required to trig-                 
               ger the inclusion of the payments within the definition                
               of self-employment income.  To the contrary, adoption                  
               of the Commissioner’s position would compel the conclu-                
               sion that the taxpayers, as landlords, are required to                 
               rent property to the corporation at below fair market                  
               value and below the rates paid to third parties.  The                  
               “missing link” in the Commissioner’s argument is the                   
               same as in the McNamara case:  the corporation’s obli-                 
               gation to make the rental payments is separate and                     
               distinct from the taxpayers’ participation in the                      
               farming operation.                                                     
               Respondent counters that McNamara II does not require the              
          result advocated by petitioners in the instant case.  Respondent            
          argues that                                                                 
                    The Eighth Circuit in McNamara * * * created a                    
               judicial exception for fair rental value when the                      
               landlord has two independent arrangements with the                     
               lessee for rent and wages and there is no nexus between                
               the two arrangements.                                                  
                    Petitioners fail to meet the Eighth Circuit’s                     
               standard because they failed to enter into a separate                  
               employment agreement with their corporation, and to the                
               extent they did, it was so inextricably interrelated                   
               with the oral lease that the nexus is obvious and                      
               cannot be overlooked.  Petitioners’ classification of                  
               all funds from the corporation as rent and none as                     
               wages demonstrates that there were not independent                     
               arrangements with respect to real estate rentals and                   
               compensation for services.  Moreover, the transaction                  

               12We shall refer to our respective opinions that the Court             
          of Appeals for the Eighth Circuit reversed and remanded as Bot I,           
          Hennen I, and McNamara I and to the opinion of that Court as                
          McNamara II.                                                                





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