Miller & Sons Drywall, Inc. - Page 30

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               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 4.1             







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