- 21 - life insurance payments made by ERG; (4) constructive dividends of $6,000 from director’s fees; (5) Franklin dividends of $193; and (6) royalty income of $709. The parties dispute whether the payments of $483,098 from ERG to NPI (Hercules payment) constitute omitted gross income. On their original 1989 return, the Bensons reported royalty income of $165,48111 received from NPI. Benson v. Commissioner, T.C. Memo. 2004-272. In our prior opinion, we stated: On or about November 22, 1989, Hercules and ERG entered into a memorandum of agreement (MOA), whereby Hercules agreed to pay $483,098 as an add-on cost to increase production of the baffle sets delivered by ERG. The MOA was unique because it called for Hercules to “facilitize” or fund ERG’s plant and equipment, the cost of which is normally paid for by the owner of the plant and equipment. Attached to the MOA is “schedule 1”, which lists the equipment and their associated prices as contemplated by the MOA. [Id.; fn. ref. omitted.] We also stated that “Burton testified that the ‘engineering services’ for which ERG compensated NPI were consulting design services that he performed to make the Hercules contract ‘work’.” Id. However, the Bensons’ return does not refer to the Hercules payment. The Bensons assert that the Hercules payment is disclosed on the 1989 amended return of NPI. As we held supra, the 1989 amended return of NPI is not to be considered as a 11 It appears that respondent has factored this disclosure into his calculation as the “Reverse Royalty income recharacterized as constructive dividends”.Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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