James S Sparkman - Page 21

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        Solar business as Sparkman’s business.  He testified:  “I actually            
        managed his [Sparkman’s] company * * * Mercury Solar.”21                      
             As “agent” of both HEH and Mercury Solar PTO, Sparkman was               
        authorized to act as the “official authorized signature” on the               
        bank accounts of those purported entities.  For the years at                  
        issue, Sparkman also effectively controlled income allocations and            
        distributions of Mercury Solar PTO (which were made almost                    
        entirely to himself).22  There is no credible evidence that he                
        meaningfully shared that control with anyone else.                            




               21 In a memorandum dated September 22, 1997, and addressed             
          to “All Staff and Contractors of Mercury Solar and HEH”, Myron              
          Thompson (Thompson) stated:                                                 
               Effective today, I will be assisting Scott [Sparkman]                  
               in organizing the companies [HEH and Mercury Solar] for                
               the sake of current and future expansion.  I will be                   
               assuming the role of Temporary Executive Director of                   
               both HEH and Mercury Solar.  Scott [Sparkman] will                     
               continue as President.  [Emphasis added.]                              
               22  Porter, who was supposedly one of two trustees of                  
          Mercury Solar PTO during the years at issue (and sole trustee               
          after May 1998) testified that income allocations during those              
          years were made by Thompson and Sparkman, “with sometimes it                
          being run by myself.”  She added, however:  “it’s certainly not             
          * * * something I had a day to day involvement with”.  We are not           
          persuaded that either Porter or Thompson had any meaningful role            
          with respect to income allocations or distributions during the              
          years at issue.  Apart from Porter’s vague, contrived, and                  
          noncredible testimony, all the evidence indicates that she was a            
          mere figurehead for both HEH and Mercury Solar PTO.  The Mercury            
          Solar PTO organizational documents do not authorize Thompson to             
          make income allocations or distributions.  In testifying as to              
          the nature of his duties and activities at Mercury Solar PTO,               
          Thompson made no mention of making any income allocations or                
          distributions.                                                              




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