Chickie's and Pete's, Inc. - Page 15

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          license agreement.8  Although not altogether clear, it appears              
          that petitioner may be arguing that it made a portion of the                
          $902,476 payment under petitioner’s license agreement in order to           
          compensate Mr. Ciarrocchi for services rendered to petitioner and           
          that that portion is deductible under section 162(a)(1).  A                 
          payment is deductible as compensation under section 162(a)(1) if            
          it is for services actually rendered to the payor in or before              
          the year of payment and is reasonable in amount.9  E.g., Lucas v.           
          Ox Fibre Brush Co., 281 U.S. 115, 119 (1930); sec. 1.162-7(a),              
          Income Tax Regs.  On the record before us, we find that peti-               
          tioner has failed to carry its burden of showing that any portion           
          of the $902,476 payment that it made to Mr. Ciarrocchi in excess            
          of the amount that respondent concedes is deductible as a royalty           

               8Pursuant to Ogden’s license agreement, Ogden also agreed to           
          make at the inception of that agreement a nonrefundable payment             
          to 4010, Inc., of $10,000.                                                  
               9In determining whether compensation is reasonable, we have            
          applied the so-called multifactor test, see, e.g., Estate of                
          Wallace v. Commissioner, 95 T.C. 525 (1990), affd. 965 F.2d 1038            
          (11th Cir. 1992), viewed through the lens of an independent                 
          investor, where a case is appealable to a U.S. Court of Appeals             
          which has neither adopted nor rejected the so-called independent            
          investor test established by the U.S. Court of Appeals for the              
          Seventh Circuit in Exacto Spring Corp. v. Commissioner, 196 F.3d            
          833 (7th Cir. 1999), revg. Heitz v. Commissioner, T.C. Memo.                
          1998-220.  See, e.g., Haffner’s Serv. Stations, Inc. v.                     
          Commissioner, T.C. Memo. 2002-38, affd. 326 F.3d 1 (1st Cir.                
          2003).  The instant case is appealable to the U.S. Court of                 
          Appeals for the Third Circuit.  That Court of Appeals has not               
          adopted the so-called independent investor test but has endorsed            
          the traditional multifactor test.  See B.B. Rider Corp. v.                  
          Commissioner, 725 F.2d 945 (3d Cir. 1984), revg. and remanding on           
          other grounds T.C. Memo. 1982-98.                                           





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