- 31 - 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.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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