James O. Jondahl - Page 30

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         steps to separate his real estate activity in 1992 from WFIC but             
         also acted as a sole proprietor in the 1992 transaction.  These              
         facts indicate that WFIC was not the true earner of the 1992                 
         commission.  Petitioner has not met his burden of proving that he            
         did not earn the 1992 commission of $1,566.                                  
              In 1993, petitioner brokered one transaction for which a                
         commission of $28,000 was transferred from WFIC’s trust account              
         to its checking account and another transaction for which Epic               
         Real Estate received a commission of $102,080.  The documents                
         related to this second transaction, including a commission check,            
         referred to Epic Real Estate as a division of WFIC.  Petitioner              
         deposited the proceeds from the transaction into WFIC’s general              
         account.  Likewise, in November 1993, petitioner brokered a                  
         transaction for his sister in which Epic Real Estate received a              
         commission of $9,000.  Petitioner also deposited this check into             
         WFIC’s general account.  These amounts were reported on WFIC’s               
         corporate tax return for 1993.  Petitioner changed the business              
         name with the NDREC back to “West Fargo Investment Corporation               
         d/b/a Epic Real Estate” on September 24, 1993, indicating his                
         intent to operate the real estate business through WFIC again.               
         We conclude that, for the purpose of the 1993 real estate                    
         transactions, petitioner was again an employee of WFIC.                      
         Petitioner has met his burden of proving that WFIC was the true              
         earner of the real estate commissions in 1993, and respondent has            






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