David M. Sears and Carol L. McCabe - Page 5

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         distributor purchased the platinum service.4  Thus, if an upline             
         distributor sold the system and a year’s subscription to the                 
         platinum service, he earned commissions totaling $66.  An upline             
         distributor also earned commissions based on a downline                      
         distributor’s sales and on the downline distributor’s success in             
         developing his own downline distribution network.  See Elliott v.            
         Commissioner, 90 T.C. 960 (1988), affd. without published opinion            
         899 F.2d 18 (9th Cir. 1990), for a general discussion of multi-              
         level marketing.                                                             
              Petitioner David Sears (Mr. Sears) was recruited as a                   
         downline distributor in August 1999.  He also purchased the                  
         platinum service, which he maintained until he discontinued his              
         involvement with RTP in 2001.5  To generate sales and recruit                
         downline distributors of his own, he frequently went to coffee               
         shops or doughnut shops and initiated conversations with other               
         patrons about taxes.  Mr. Sears would mention the RTP system “as             
         an alternative to just complaining” about taxes.  He also invited            
         acquaintances to dinner to discuss the system.  During this time,            

               4  The upline distributor did not provide the tax advice and           
          other services to downline distributors.  RTP provided such                 
          services directly.                                                          
               5  Petitioner Carol McCabe (Ms. McCabe) also purchased the             
          system and the platinum service; however, petitioners do not                
          claim that Ms. McCabe’s RTP activity was a trade or business for            
          Federal income tax purposes.  They testified that only one person           
          was covered by the $100 platinum service fee.  Thus, in order for           
          Ms. McCabe to receive tax and financial planning advice of her              
          own, she had to purchase separately the system and the platinum             
          service.                                                                    




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