Wechsler & Co., Inc. - Page 48

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         We find Mr. Wechsler’s testimony self-serving and unconvincing.10            
         We note that petitioner offered no other evidence (e.g.,                     
         testimony from Gilbert, petitioner’s other employees, or                     
         potential investors) that Gilbert performed any services for                 
         petitioner.  We infer that petitioner’s failure to offer such                
         evidence means such evidence would have been unfavorable to                  
         petitioner’s case.  See Wichita Terminal Elevator Co. v.                     
         Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th             
         Cir. 1947).                                                                  
              This factor supports petitioner with respect to the                     
         compensation paid to Mr. Wechsler and respondent with respect to             
         the compensation paid to Mrs. Wechsler and Gilbert.                          


               10  Mr. Wechsler acknowledged that petitioner’s 1992 and               
          1993 payments to Gilbert were, in unspecified part, for Gilbert’s           
          agreeing to the estate tax installment payment elections made by            
          their father’s and mother’s estates.  Mr. Wechsler explained that           
          Gilbert (as either cofiduciary or cobeneficiary of their parents’           
          respective estates and the trusts established by their father)              
          greatly helped petitioner and Mr. Wechsler by agreeing to elect             
          to pay the estate taxes owed by the two estates on the                      
          installment basis.  He said that the installment tax payment                
          elections allowed petitioner to keep more of its capital to use             
          in its business, because petitioner then did not have to redeem             
          immediately substantially more preferred shares in order to pay             
          the estate taxes owed.  Gilbert’s actions as a cofiduciary of the           
          estates in making the elections, however, do not constitute work            
          performed for petitioner.  Petitioner does not argue that its               
          payments to Gilbert for his agreeing to the installment payment             
          elections are otherwise deductible under sec. 162 as  ordinary              
          and necessary business expenses (other than compensation)                   
          directly connected with or proximately resulting from                       
          petitioner’s business.  See secs. 161, 162(k), 261, 263;                    
          Kornhauser v. United States, 276 U.S. 145, 153 (1928).                      






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