- 15 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
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