Miller & Sons Drywall, Inc. - Page 25

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          matter how favorable the economic conditions were, petitioner’s             
          success depended on obtaining jobs through the bidding process              
          and completing each job within budget.  In other words,                     
          petitioner’s success depended on how well Darle, Dean, and Rocky            
          performed their respective jobs, not on the economy’s health.  We           
          hold that this factor weighs in petitioner’s favor because its              
          success was not a function of economic circumstances.                       
               E.   Comparison of Salaries With Distributions to                      
                    Stockholders and Retained Earnings                                
               The Court of Appeals for the Eighth Circuit has stated that            
          the “absence of dividends to stockholders out of available                  
          profits justifies an inference that some of the purported                   
          compensation really represented a distribution of profits as                
          dividends.”  Paul E. Kummer Realty Co. v. Commissioner, 511 F.2d            
          at 315; Charles Schneider & Co. v. Commissioner, 500 F.2d at 153;           
          see also RTS Inv. Corp. v. Commissioner, 877 F.2d at 651.                   
          Petitioner never declared a dividend.                                       
               However, corporations generally are not required to pay                
          dividends.  In addition, Darle testified that petitioner did not            
          pay dividends because it wanted a financial cushion in case it              
          had difficulty obtaining jobs.  Petitioner had retained earnings            
          of $781,702 as of June 30, 2000.  Respondent would argue that               
          petitioner’s retained earnings exceeded the amount needed to                
          sustain its business.  We do not find these amounts so excessive            
          as to warrant us to second-guess Darle’s business judgment.                 





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