- 30 - Respondent also relies on Alpha Med., Inc. v. Commissioner, supra, and Eberl’s Claim Serv., Inc. v. Commissioner, T.C. Memo. 1999-211, affd. 249 F.3d 994 (10th Cir. 2001), for the proposition that the ROE should be analyzed only for each tax year in issue separately. Petitioner argues that respondent’s analysis should not be relied on because he incorrectly interpreted this Court’s jurisprudence. We agree that the independent investor would initially focus on each of the 3 years in issue separately. However, respondent’s reliance on Alpha Med., Inc. and Eberl’s Claim Serv., Inc. is partially misplaced. Unlike those cases, the total capital investment of $11,300, as of 1982, made by the shareholder-employees in this case was not de minimis considering a competitor could establish a drywall construction business with only $300. Also, in this case, there are three shareholder- employees, compared to a single shareholder-employee in each of those cases. These differences sufficiently distinguish this case from the reasoning used in Alpha Med., Inc. and Eberl’s Claim Serv., Inc. to view the years in issue only separately. Thus, we shall consider the years in issue collectively and separately. Petitioner’s ROE for the tax year ended June 30, 1998, was 7.8 percent, for the tax year ended June 30, 1999, negative 4.1Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
Last modified: May 25, 2011