Menard, Inc. - Page 34

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          officers’ compensation was “‘excessive’” and “‘[exceeded] a                 
          reasonable allowance for salaries or other compensation for                 
          personal services actually rendered within the ambit of * * *               
          [section 162].’”  Id. at 361-362.  The Court of Appeals for the             
          Ninth Circuit concluded that the notice’s language apprised the             
          taxpayer of the Code section at issue, section 162, and                     
          emphasized that the test of section 162 is two-pronged, requiring           
          that compensation be reasonable and for personal services                   
          actually rendered.  Id. at 362.                                             
               Unlike the notice of deficiency at issue in Nor-Cal                    
          Adjusters, the notice in the present case did not expressly refer           
          to section 162 or make a specific determination as to whether Mr.           
          Menard’s compensation was for personal services actually                    
          rendered.  Even so, in a recent case, we indicated that                     
          respondent need not specifically state the disguised dividend               
          theory in the notice of deficiency.  In E.J. Harrison & Sons,               
          Inc. v. Commissioner, T.C. Memo. 2003-239, the Commissioner                 
          determined that the amounts the taxpayer deducted for                       
          compensation paid to its president were “unreasonable and                   
          excessive”.32  For the first time on brief, the Commissioner                
          argued that the disallowed amounts were a disguised dividend.               


               32Our opinion in E.J. Harrison & Sons, Inc. v. Commissioner,           
          T.C. Memo. 2003-239, did not excerpt the language from the notice           
          of deficiency that explained the Commissioner’s disallowance of             
          deductions for officer compensation.                                        




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