Miller & Sons Drywall, Inc. - Page 32

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          disguising the distribution of dividends as compensation.”                  
          Wagner Constr., Inc. v. Commissioner, T.C. Memo. 2001-160 (citing           
          Owensby & Kritkos, Inc. v. Commissioner, 819 F.2d at 1325-1326).            
          Respondent provided a chart that expressed the shareholder-                 
          employees’ compensation as a percentage of gross receipts and net           
          pretax income for tax years ended June 30, 1990 through 2000.               
          With respect to the years in issue, respondent determined that              
          the shareholder-employees’ compensation was as follows:                     
                                                       Net income                     
                      Compensation                     before taxes                   
                        paid to                           and                         
             TYE      petitioner’s   Gross             shareholder                    
            June 30   shareholders  receipts  Percent  compensationPercent            
             1998      $600,000    $1,857,221   32%    $673,651      89%              
             1999      592,727     1,688,437    35     548,980       108              
             2000      940,000     2,905,034    32     1,277,316     74               
          Petitioner argues that this factor should not be afforded much              
          weight because Darle, Rocky, and Dean each wore “three hats”--              
          directors, officers, and key employees–-which required them to              
          perform duties above and beyond their respective titles.                    
               While we disagree with both parties’ analyses, we find this            
          factor favors respondent.  The shareholder-employees’                       
          compensation expressed as a percent of gross income was fairly              
          consistent in the years in issue and was a significant portion of           
          the net income.  In some cases, the percentages may be less                 
          indicative because the qualifications of the shareholder-                   
          employees and the nature, extent, and scope of their work support           





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