T.C. Memo. 1996-238
UNITED STATES TAX COURT
EYEFULL INCORPORATED, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3893-94. Filed May 22, 1996.
1. Over several years M performed substantial
services without compensation for P, a
domestic corporation that M owned indirectly
through two tiers of foreign entities. There
was no written agreement for the services and
no contemporaneous record of an obligation to
pay for them. When P made a payment to M and
deducted it as compensation for the prior
services, R recharacterized the payment as a
dividend. Held: The payment is deductible
as compensation, because remuneration was
consistent with the expectation of the
parties at the time the services were
performed.
2. P accumulated earnings without specific,
definite and feasible plans to use the
accumulations and lent substantial amounts to
affiliates for purposes unrelated to its
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business. Held, further, P is liable for the
accumulated earnings tax.
Robert E. Miller and Edith S. Thomas, for petitioner.
Alexandra E. Nicholaides and Eric R. Skinner, for
respondent.
MEMORANDUM OPINION
LARO, Judge: Petitioner sought redetermination of
deficiencies in Federal income taxes, additions to tax, and
penalties determined by respondent as follows:
Taxable Year Additions to Tax Penalty
Ended Sec. Sec. Sec.
August 31 Deficiency 6651(a)(1) 6653(a) 6662
1989 $124,721 $1,192 $11,396 ---
1990 208,903 1,487 --- $1,189
1991 216,364 36,336 --- 29,069
1992 16,706 --- --- ---
After concessions by both parties, the issues for decision are:1
(1) Whether petitioner may deduct payments made to one of its
ultimate beneficial owners as compensation for services. We hold
that it may. (2) Whether petitioner is liable for accumulated
earnings tax. We hold that it is liable with respect to 3 of the
4 taxable years at issue. (3) Whether petitioner is liable for
additions to tax under sections 6651 and 6653(a) and for
1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years at issue, and Rule
references are to the Tax Court Rules of Practice and Procedure.
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accuracy-related penalties for negligence under section 6662. We
hold that it is liable. Some of the facts have been stipulated
and are so found. The stipulation of facts and joint exhibits
attached thereto are incorporated herein by this reference.
Issue 1: Compensation
Background
Petitioner was incorporated under California law in 1984.
At the time the petition was filed, petitioner’s principal place
of business was in the city of Ontario, in San Bernardino County,
California. Petitioner owns and operates an adult entertainment
complex comprising a nightclub, bookstore, video arcade, and live
peep show. Petitioner is one of a large group of corporations in
the same industry (the Mohney Group) that are owned, directly or
indirectly, by Harry V. Mohney (Mohney), either alone or as one
of several beneficiaries of a trust. During the years at issue,
petitioner’s stock was owned in equal shares by three Turks &
Caicos Islands holding companies, Fun Films Ltd., Tornado Trading
Inc., and Azid Trading Corp. Each of these holding companies
was, in turn, wholly owned by the Amaranta Trust, a foreign trust
established by Mohney. During the years at issue the trustee of
the Amaranta Trust was Andrew Newlands (Newlands) and the
beneficiaries were Mohney and members of his family. Under the
terms of the trust instrument Mohney had no control over trust
assets and no power to discharge the trustee or appoint his
successor in the event that he retired.
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Mohney served as an officer of several corporations in the
Mohney Group. Many others, including petitioner, retained him as
a “consultant”. Pursuant to a general understanding with
Newlands, in his capacity as a “consultant” Mohney actually
exercised the highest executive authority with respect to each of
the corporations. Although he was ultimately accountable to the
trustee, he understood that he had Newlands complete confidence
and managed the companies effectively without supervision.
Mohney submitted no written report of his work to Newlands but
informed him of the progress of the companies under his control
from time to time.
On his individual income tax returns, Forms 1040, Schedule
C, for each of the years 1985 through 1991, Mohney reported his
principal business or profession as consulting and included
payments he received from corporations in the Mohney Group in his
gross receipts for the taxable year. The amounts reported as
consultation income from the Mohney Group for each year are as
follows:
Year Number of Companies Total
1
1985 2 $10,894
1986 2 36,823
2
1987 3 68,389
1988 4 175,917
1989 2 100,863
1990 12 364,448
1991 49 2,706,827
1
This figure comes from a schedule prepared by petitioner.
Mohney’s return shows a total of $30,408, which may include
receipts from sources outside the Mohney Group.
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2
This figure comes from a schedule prepared by petitioner.
Mohney’s return shows the amount received from only one of the
three, $59,702. The discrepancy was not explained.
Under his usual “consulting” arrangement, the amount and timing
of payments Mohney received were not fixed in advance, but varied
based on his assessment of the company’s performance and its
needs.
Mohney’s “consulting” relationship with petitioner conformed
to the general pattern. From the founding of the company through
the taxable years at issue, Mohney exercised the highest
executive responsibilities and actively participated in making
and implementing major corporate decisions. In petitioner’s
early years of operation he designed the floor plan for the
complex, negotiated the purchase of the building site, oversaw
construction of the building, and procured merchandise and
credit. In 1988 he hired Jacqueline Hagerman (Hagerman) to serve
as petitioner’s president, and the determination of her annual
salary was his responsibility. During the years at issue he was
consulted on a regular basis by Hagerman and the other management
concerning administration, operations, promotions, advertising,
and the myriad legal problems that arose in regard to zoning,
building code compliance, and restrictive ordinances.
Hagerman moved to Michigan in 1990 and Donald Krontz
(Krontz) was hired as manager to supervise daily operations in
her absence. It was these two with whom Mohney regularly worked.
Both understood that there was a preexisting consulting agreement
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between him and petitioner or the shareholders. Their
understanding was based on what they had been told, by Mohney
himself and perhaps others, and it was confirmed by his
availability 24 hours a day to participate in decisions on any
corporate matter of importance that arose. Neither had ever seen
documentation of a consulting relationship, and none existed.
There is no written consulting agreement between petitioner and
Mohney relating to any period between 1985 and 1992. Petitioner
has no timesheets, statements or bills detailing the dates,
hours, or specific times for which compensation was payable to
Mohney. Petitioner did not accrue a liability for consulting
fees on its books at the time Mohney rendered services.
Beginning in or around 1991, petitioner engaged the services
of Deja Vu, Inc. (Deja Vu). This company provides management
consulting for nightclubs. At all relevant times its president
was Krontz and Mohney was one of its salaried employees. Mohney
performed some services for petitioner in this capacity. While
it is clear that petitioner paid Deja Vu for its consulting work,
it is not clear how much of the work was performed by Mohney or
how much Deja Vu was paid for Mohney’s work. Mohney reported
wages from Deja Vu of $252,000 in 1990 and $261,000 in 1991.
It was Mohney’s original understanding from discussions with
Newlands that eventually he would receive 10 percent of
petitioner’s gross receipts. Petitioner made no payments to him
during 1985 through 1987. In 1988 Mohney caused petitioner to
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pay him $30,000. Mohney believed that payment of more than this
amount would have been unwise at a time when the company’s
viability was uncertain. The next payment occurred in July 1991.
The amount and form had been decided at some time during the
previous year by agreement between Mohney and Newlands. In
November 1990 Mohney discussed the accounting aspects of the
transaction with David Shindel (Shindel), an independent
certified public accountant who had been retained to oversee tax
compliance for several companies within the Mohney Group.
Hagerman, petitioner’s president and sole member of the board of
directors, had no part in the decision. Newlands, acting as
representative of petitioner’s shareholders, notified her that
petitioner was to transfer to Mohney $274,980 worth of precious
metals--Krugerrands and the like--that it had recently acquired
on Mohney’s instructions; the remaining $65,000 of precious
metals was to be distributed to the shareholders. An attorney
close to Mohney drafted a resolution of petitioner’s board of
directors authorizing the payment. The resolution acknowledged
that petitioner had “availed itself of the expertise, consulting
services and advisory assistance of HARRY V. MOHNEY * * * in
connection with the operation of this Corporation’s retail
business since 1985 * * * pursuant to and in accordance with
agreements reached between said HARRY V. MOHNEY and an authorized
representative of the shareholders.” It stated that the
conveyance of precious metals was “in full and final
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satisfication of any amounts due him for consulting and advisory
services,” and that “the amount has been acknowledged by the
authorized representative of the shareholders to be consistent
with the agreements and understandings previously made and
entered into.” Hagerman approved the resolution on July 30,
1991. The payment represented 3.3 percent of petitioner’s
cumulative gross receipts since 1985.
Mohney received a Form 1099 reflecting the payment and
included it in income for 1991 as gross receipts from his
consulting business. Petitioner deducted the payment in
computing its taxable income for the taxable year ended August
31, 1991 (TYE 8/31/91). In her notice of deficiency respondent
disallowed the full deduction.
Discussion
The first issue raised by petitioner’s payment to Mohney of
$274,980 in TYE 8/31/91 is whether it may be deducted as
compensation. If so, we must decide for what taxable year(s) it
is deductible. Section 162(a)(1) provides that deductible
business expenses include a reasonable allowance for salaries or
other compensation for personal services actually rendered. In
general the deductibility of a payment characterized as
compensation turns on two requirements: The payment must be
purely for services, and it must be reasonable in amount.
Elliotts, Inc. v. Commissioner, 716 F.2d 1241, 1243-1244 (9th
Cir. 1983), revg. T.C. Memo. 1980-282; sec. 1.162-7(a), Income
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Tax Regs. The focus of the controversy in this case is the
former requirement.2 It is well established that a payment may
be deducted as compensation only to the extent that it was
actually intended as such. Jefferson Block & Supply Co. v.
Commissioner, 59 T.C. 625, 633-634 (1973), affd. without
published opinion 492 F.2d 1243 (6th Cir. 1974); Paula Constr.
Co. v. Commissioner, 58 T.C. 1055 (1972), affd. without published
opinion 474 F.2d 1345 (5th Cir. 1973); Electric & Neon, Inc. v.
Commissioner, 56 T.C. 1324, 1340 (1971), affd. without published
opinion 496 F.2d 876 (5th Cir. 1974). Respondent takes the
position that compensation for prior services was not the purpose
of the payment to Mohney, because (1) the services had not been
rendered with a view toward compensation; (2) to the extent the
services may have been rendered for compensation they were
otherwise fully compensated; and (3) the circumstances of the
payment indicate a purpose other than compensation. In
respondent’s view, the payment was in substance a nondeductible
dividend disguised as compensation for prior services and its
principal motivation was to avoid liability for the accumulated
earnings tax. We disagree.
2
We do not understand respondent to challenge the
reasonableness of the payment in relation to the services
performed. In the notice of deficiency there was no indication
that this was a reason for disallowing the deduction, and
respondent presented no argument on this issue at trial or on
brief.
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Respondent acknowledges that Mohney performed substantial
services for petitioner on a regular basis:
Mr. Mohney had considerable involvement in
every facet of the operation of petitioner.
He made virtually every kind of decision
needed to operate the petitioner from hiring
employees, and making decisions on building,
remodeling, and sign design, to financial and
investment decisions and lending to related
parties.
She concludes: “Mr. Mohney’s involvement is tantamount to that of
an owner, someone who has financial stake in the petitioner,
rather than that of a consultant.” Thus, respondent believes
that Mohney performed these services not for compensation, but
for a return on his investment in petitioner.
We agree with respondent that, by themselves, Mohney’s
extensive activities on petitioner’s behalf do not establish the
existence between them of a business relationship consistent with
the payment of compensation. See Paula Constr. Co. v.
Commissioner, supra at 1058; cf. Whipple v. Commissioner, 373
U.S. 193, 202-203 (1963). There must also be evidence that at
the time the services were rendered the parties understood them
to be part of a business transaction conducted for profit.
Respondent’s disguised dividend theory relies heavily on the
absence of a written consulting agreement, timesheets, invoices,
bills, work reports, accrued liabilities on petitioner’s books or
other contemporaneous documentation of a consulting relationship.
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We do not find the absence of such documentation to be
dispositive. The fact that petitioner’s books do not reflect the
accrual of a liability at the time services were rendered is not
necessarily inconsistent with an understanding that the company
was obligated to pay for the services. The amount and timing of
the payment were understood to be contingent on business
performance over an indefinite period. To have made a reasonable
estimate of the accrued expense for Mohney’s compensation in the
company’s accounts would have been extremely difficult under
these circumstances. Assuming that a business relationship did
exist between petitioner and Mohney, plainly it would not have
been conducted at arm’s length, and therefore, in general,
documentation of the kind sought by respondent would have served
little, if any, useful function. Where the owner of a closely
held corporation takes an active part in managing its business,
neglect of formal documentation of the compensation arrangement
between them is not uncommon. In recognition of this fact, our
cases have not required formal documentation as a condition for
deductibility of executive compensation in the context of a
closely held corporation. Levenson & Klein, Inc. v.
Commissioner, 67 T.C. 694, 713-714 (1977); Reub Isaacs & Co. v.
Commissioner, 1 B.T.A. 45, 48 (1924); Pulsar Components Intl.,
Inc. v. Commissioner, T.C. Memo. 1996-129; Mad Auto Wrecking, Inc
v. Commissioner, T.C. Memo. 1995-153.
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In this case the absence of documentation reflects not only
the flexibility and informality that the circumstances permitted,
but also a deliberate policy. Mohney testified that he has been
indicted on obscenity charges over a hundred times. Having
learned from experience that documentary evidence of his
relationship to the adult entertainment businesses he controlled
posed a risk of incrimination, he kept such documents to a
minimum.
Contemporaneous documentation of a business relationship is
not altogether lacking. On his individual income tax returns for
the years 1985-91 Mohney described his principal business as
consulting and reported the payments from petitioner and the
other corporations he managed as gross receipts from this
business. In addition, we have the uncontradicted testimony of
Hagerman and Krontz that they understood a consulting agreement
to exist, and the testimony of Mohney that he always expected
compensation for his work. To be sure, such testimony serves
their interest, but we cannot reject it for that reason alone.
Lewis & Taylor, Inc. v. Commissioner, 447 F.2d 1074, 1077
(9th Cir. 1971), revg. T.C. Memo. 1969-82; Loesch & Green Constr.
Co. v. Commissioner, 211 F.2d 210, 212 (6th Cir. 1954), revg. a
Memorandum Opinion of this Court.
The evidence strongly suggests that Mohney did expect to
receive payment in some form from petitioner. In addition to the
payment in 1991, Mohney received a payment from petitioner in
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1988. He also received payments from other Mohney Group
corporations that he managed under the title of “consultant” in
every year between 1985 and 1991. If the reward he expected was,
as respondent contends, a return on his investment, then he
expected not only the appreciation in equity value resulting from
his efforts, but also distribution of some of the earnings. Thus
respondent’s argument implies that Mohney expected that he could
withdraw earnings from petitioner just as if he had owned a
controlling interest in the corporation directly, rather than a
beneficial interest in the trust that owned petitioner’s
shareholders.
The little evidence we have concerning the Amaranta Trust
does not support this conclusion. Mohney testified that he
established the trust for the benefit of his children and
grandchildren; although he too possesses a beneficial interest,
the trust is structured in such a way that he cannot realize any
tangible benefit during his lifetime. This would suggest that
Mohney does not have--or is not aware of having--a right to
distribution of current income or right to withdraw income or
corpus. Therefore earnings of petitioner that Mohney did not
cause to be paid out as compensation would not have come back to
him through distributions from the trust. Presumably a
substantial share would have accrued to the other beneficiaries.
And any share of the trust’s dividend income to which he may have
been entitled would have been accumulated; he would not have been
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able to realize this gain without selling all or part of his
interest in the trust. If the trustee had arranged for
petitioner to distribute dividends so that the funds could then
be distributed by the trust to Mohney, he would likely have been
acting in violation of his legal obligations. As a practical
matter, Mohney could not have compelled Newlands to distribute
trust income to him, for Mohney had no power to discharge
Newlands. If Newlands retired, he would select his own
successor. In the absence of any basis for doubting the
independence and integrity of the trustee, we are unwilling to
assume that Mohney expected him to act in derogation of his
duties. The implications of respondent’s argument seem therefore
to be at variance from the facts. The payments that Mohney
claims to have expected to receive as compensation for his
services and which he ultimately received in 1988 and 1991
differed materially from the returns he received on his
investment through the trust.
Respondent points out that petitioner paid Deja Vu for
consulting work during the years at issue, and that Mohney was
employed by Deja Vu. Therefore, if Mohney did sell his services
to petitioner, those services were likely to have been fully
compensated through Deja Vu’s regular billings.
According to the uncontradicted testimony of Krontz, who
served as both petitioner’s manager and the president of Deja Vu,
the consulting work that Deja Vu performed for petitioner did not
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begin until sometime in 1990, at the earliest. Mohney had
already been providing services to petitioner for 5 to 6 years.
There is no evidence that the extent or character of Mohney’s
activities with respect to petitioner changed in any way after
the relationship with Deja Vu commenced. Although it appears
that Mohney did do some work for petitioner as an employee of
Deja Vu, the scope of these services was limited to petitioner’s
nightclub. We believe that Mohney’s involvement in general
administration, advertising, legal matters, the bookstore,
theater, arcade machines, and other facilities of petitioner’s
entertainment complex was independent of any work he performed
under the Deja Vu contracts.
Respondent finds support for her disguised dividend theory
in circumstances surrounding the timing of the payment. She
dismisses petitioner’s argument that Mohney deferred collection
of his compensation until 1991 out of concern for petitioner’s
financial situation, pointing out that petitioner had been
profitable in each year since 1986. Respondent proposes that the
real reason for the payment in 1991 was concern about potential
liability for the accumulated earnings tax. In this connection
she attaches significance to the fact that the Internal Revenue
Service audit of several Mohney Group corporations had already
begun, and at some point in 1991 the revenue agent specifically
raised the accumulated earnings tax issue with Shindel, the
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certified public accountant who had been retained to review tax
compliance within the group.
It was almost certainly not the revenue agent’s inquiries
that precipitated Mohney’s decision to collect payment from
petitioners and the other Mohney Group companies he managed.
Shindel testified that the decision had already been made by
November 1990. This does not mean that concern about potential
liability for the accumulated earnings tax was not a principal
reason for Mohney’s decision, however. Shindel also testified
that he had become aware of the accumulated earnings tax problem
in regard to a number of Mohney Group companies before the IRS
audit began, and that he discussed the problem with Mohney. The
sheer number of companies making payments and the size of the
amounts paid to Mohney in 1991 relative to prior years supports
the inference that the 1991 payments marked a departure from
Mohney’s usual policy of collecting payment only as, and to the
extent that, the financial situation of each company permitted.
Yet even if concern over accumulated earnings tax liability was
indeed the principal motivation for Mohney’s decision, this fact
would be no less consistent with characterization of the payment
as compensation for prior services than with characterization of
the payment as a disguised dividend. In the absence of
documentation establishing an amount of compensation owed to
Mohney for his services, Mohney would have had reason to be
concerned about petitioner’s ability to justify accumulations to
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fund deferred compensation obligations. Thus, the circumstances
of petitioner’s payment to Mohney in 1991 provide no reason to
doubt that it was what it purported to be. We are satisfied that
the payment should not be recharacterized as a dividend.
Having determined that the payment is deductible, we turn to
the issue of when the deduction may be taken. Petitioner
proposes to spread the $274,980 deduction ratably over the
7 taxable years to which the payment applies. This would entail
a deduction in the amount of $43,568 for each taxable year
between TYE 8/31/85 and TYE 8/31/91.3 Petitioner is an accrual
basis taxpayer. Under the accrual method, a liability is taken
into account for the taxable year in which all events have
occurred that establish the fact of the liability, the amount can
be determined with reasonable accuracy and economic performance
has occurred. Sec. 1.446-1(c)(1)(ii)(B), Income Tax Regs.
Petitioner could not determine the amount payable to Mohney for
compensation until notified thereof by Newlands during TYE
3
The figure that petitioner proposes on brief as the amount
of the annual deduction is $39,280 ($274,980 ÷ 7). Considering
the $30,000 payment made to Mohney in 1988, the more appropriate
calculation would appear to be as follows: $274,976 = 6x + (x -
$30,000); hence, x = $43,568.
Inasmuch as the first four of these taxable years are not
before the Court and the period of limitations for claiming a
refund with respect to these years appears to have expired, sec.
6511(a), presumably petitioner takes this position in reliance on
the availability of relief under the mitigation provisions of the
Code. See secs. 1311(a), 1312(4), 1313(a)(1), and 1314(b).
Resort to the mitigation provisions to reopen closed taxable
years will be neither necessary nor warranted.
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8/31/91. Therefore the full $274,980 must be deducted in that
year. Lucas v. Ox Fibre Brush Co., 281 U.S. 115, 120 (1930).
Issue 2: Accumulated Earnings Tax
Background
Like many adult entertainment businesses, petitioner
operated in the face of intense and unremitting hostility from
residents of the local community and local government
authorities. Exclusionary zoning, stringent enforcement of
building code requirements and licensing requirements, indecency
ordinances and criminal prosecution are weapons commonly deployed
to contain the growth of such businesses or eradicate them
altogether. The authorities of San Bernardino County used this
full arsenal against petitioner. The history of this conflict
and of petitioner’s other legal problems bears directly on the
question of the extent of petitioner’s expected and actual needs
for funds during the years at issue.
Trouble with the local authorities dates back to 1985, the
year in which petitioner commenced operations. In that year the
county adopted Ordinance No. 2940, which prohibited adult
entertainment businesses from locating in the area where
petitioner was currently operating and where a new building was
being constructed for its use. Petitioner sought an injunction
against enforcement of the ordinance on the ground that it was
unconstitutional. The lawsuit concluded in 1987 with a decision
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of the Ninth Circuit Court of Appeals in petitioner’s favor.
Petitioner moved into the new building in 1986.
In June 1988 six women who worked as independent contractors
for petitioner were arrested for dancing in the nude at
petitioner’s nightclub. Petitioner undertook their legal defense
and bore all the costs thereof, in accordance with its policy of
offering to underwrite all the legal expenses of employees and
contractors that arose out of the business relationship. This is
common practice in the adult entertainment business. A letter
addressed to Hagerman from petitioner's attorneys in that case
dated July 8, 1988, indicates that petitioner was contemplating a
lawsuit against the county for the purpose of invalidating the
nudity ordinance under which the dancers had been arrested.
There is no evidence that such a lawsuit was ever filed. The
dancers were tried in June 1989, after which the representation
appears to have ended.
At least two further legal problems appear to have caused
petitioner’s president especial concern during TYE 8/31/89. One
was an ordinance that required theater operators to provide
unobstructed visibility of viewing areas from the aisle. The
so-called “no-door ordinance” had been adopted by San Bernardino
County in July 1987, yet, for reasons that were not explained at
trial, compliance with this ordinance was an issue for petitioner
2 years later. At this time Hagerman believed that the costs of
making the structural adjustments to petitioner’s theater that
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were required by the ordinance would be in the neighborhood of
$50,000-$100,000. The basis for her estimate is not clear. Nor
does the record disclose whether these adjustments were made
during the years at issue.
Hagerman foresaw the potential for much greater expenditures
in connection with the Child Protection and Obscenity Enforcement
Act, Federal record keeping and labeling law that took effect in
May 1989. Hagerman seems to have learned about the act from her
attorneys in the first half of 1989. If petitioner was subject
to liability under provisions of the act, a lawsuit challenging
its constitutionality would be very costly. Based on what she
had learned from the experiences of others in the business, she
anticipated a protracted legal battle over several years costing
hundreds of thousands of dollars. By a letter from petitioner’s
attorneys dated June 12, 1989, however, Hagerman was advised that
as a result of a recent District Court decision holding the act
unconstitutional, the U.S. Department of Justice had confirmed
that it would not seek to enforce the act. Petitioner was
involved in no lawsuit concerning the act during the taxable
years at issue, and there is no indication in the record that
petitioner’s management communicated further with counsel on this
subject.
Petitioner’s exposure to liability increased substantially
in TYE 8/31/90, as a result of the cancellation of its workers’
compensation insurance policy. Petitioner attempted to obtain
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replacement coverage without success. For TYE 8/31/90 through
TYE 8/31/92, petitioner was effectively self-insured. No reserve
was established to fund potential liabilities, however.
Toward the end of TYE 8/31/89, Hagerman discovered that,
owing to an oversight on her part, petitioner’s theater license
had expired earlier in the fiscal year. Operating without a
license, petitioner was at risk of being closed down by the
county at any time. Petitioner was not closed for this reason
during the years at issue, but neither were its efforts to secure
renewal of its license successful. At some time early in TYE
8/31/90, the County Building and Safety Department inspected
petitioner’s complex and identified several violations of the
building code. Some of these violations were promptly corrected,
but over the next 1-1/2 to 2 years further inspections followed,
and the violations uncovered by the Building and Safety
Department multiplied. Citations from the Building and Safety
Department required remedial action in order to stay open for
business. Compliance with the building code was also a condition
for renewal of petitioner’s theater license. In the early part
of TYE 8/31/90, when petitioner received the first citations,
Hagerman expected that the total cost of correcting the
violations would amount to around $200,000-$400,000, much of
which would be attributable to the cost of reinforcing the first
floor ceiling with cement. Hagerman did not obtain an estimate
for the cement work from a contractor.
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Meanwhile petitioner had its architects draw up plans for
remodeling. In or around January 1990, petitioner submitted
these plans to the Building and Safety Department for approval.
In March 1990 county officials notified petitioner that the
proposed remodeling, by increasing seating capacity in the
complex, would also increase the required minimum parking
capacity for the complex from 36 to 55 spaces. At the time,
available parking was limited to 39 spaces. For the next year
and a half the remodeling plans were suspended while petitioner’s
management attempted to rent or purchase additional parking
space. After numerous inquiries, Krontz successfully negotiated
for the purchase of a nearby parcel. The sale agreement was duly
submitted to the county for approval, but the county refused, on
the ground that petitioner’s use of the land for additional
parking would contravene a preexisting ordinance imposing a
moratorium on the expansion of adult entertainment businesses.
Accordingly, Krontz arranged for an affiliate named MIC, Ltd.
(MIC), to purchase the land and rent it to petitioner. Under the
final terms of the deal, MIC acquired the land for $490,000,
financed in part by a loan of approximately $150,000 from
petitioner, and MIC leased the land to petitioner at a rental
rate of $8,000 per month. The record does not disclose the dates
of the sequence of events leading to the conclusion of the lease
agreement.
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Remodeling work began in October 1991. In November county
officials closed petitioner’s complex because the remodeling had
been undertaken without a permit. The work was allowed to resume
in January 1992 on the condition that most of it be redone in
accordance with county specifications. Remodeling was completed,
and petitioner reopened in the following month.
The need for parking space was only one of the reasons that
petitioner’s management looked for real estate during the years
at issue. Hagerman was always interested in opportunities to
expand the adult entertainment business to new locations. In the
spring of 1989 Hagerman negotiated for the purchase of a nearby
video store for a price of $163,000. In a letter to her attorney
dated April 10, 1989, she explained her intentions: “This
purchase should be in my name I think. Maybe we will get a
corporation later. What do you think? I plan to have a
partner.” A draft sale agreement dated May 1989 records the
purchaser as “Platinum Paradise, Inc., a California Corporation
to be formed.” Hagerman discussed a number of potential
acquisitions with Mohney and made some inquiries. At Mohney’s
suggestion, in 1991 she traveled to Melbourne, Australia, to look
at a brothel advertised in the Wall Street Journal. At one time
Mohney identified a chicken ranch in Nevada, and at another a
golf course in Mexico. Petitioner reported no real estate
holdings on Schedule L of its U.S. Corporation Income Tax
- 24 -
Returns, Forms 1120, for any of the taxable years at issue. No
written plans for petitioner’s expansion were ever prepared.
The threat of exclusionary zoning or closure by county
authorities provided another reason to explore other possible
locations. Krontz began looking for potential relocation sites
when his employment began in June 1990, and he continued his
search through the remainder of the years at issue. Initially
there was only an apprehension that petitioner might be required
to relocate at some time in the future. With the enactment of
Ordinance No. 3465 in October 1991, the date for petitioner’s
departure was fixed. Under the new ordinance adult entertainment
businesses were prohibited in all areas where prior zoning laws
had required them to locate and were permitted only in an area
from which prior law had excluded them. All existing adult
entertainment businesses rendered nonconforming by the zoning
change were required to cease operations at their current
locations by January 1, 1995. Krontz entered into negotiations
for the purchase of 16 acres in Mira Loma, California.
Negotiations probably began in late 1991 and continued into 1994.
Petitioner made an offer for the property of $1.15 million; the
owner made a counteroffer of $1.25 million. The parties were
contemplating a downpayment of $100,000 and seller financing for
the balance. Ultimately the parties reached agreement, but the
deal was abandoned before closing on account of a preemptive
zoning change in the Mira Loma area. Krontz looked for several
- 25 -
properties for sale or rent as potential relocation sites. But
there is no evidence of negotiations for specific properties
besides the Mira Loma parcel at any time during the years at
issue.
On its U.S. Corporation Income Tax Returns, Forms 1120,
petitioner reported the following receipts and expenditures for
each taxable year:
Taxable Depr. Nonresidential Depr.
Year Ended Gross Legal Repair Real Property Equipment
August 31 Receipts Expenses Expenses Improvement Costs Costs
1985 $117,092 $1,014 $6,592 --- $12,491
1986 192,046 19,174 3,074 --- 19,036
1987 635,823 51,243 12,656 --- ---
1988 1,483,367 24,501 11,331 --- 255,358
1989 1,780,816 52,951 22,420 --- 8,332
1990 2,157,610 11,306 17,582 $7,125 34,448
1991 2,036,202 4,316 21,394 --- 17,078
1992 1,568,110 14,649 24,823 352,420 130,523
Petitioner made no distributions to its shareholders before
TYE 8/31/91. In that year it distributed $65,000 as a dividend.
In the following taxable year it distributed a dividend of
$50,000. During the years at issue petitioner made sizeable loans
to other corporations within the Mohney Group. With the
exception of the loan it made to MIC in order to help finance the
acquisition of parking space for the use of petitioner’s patrons,
no connection between these loans and petitioner’s business is
apparent from the evidence. Petitioner's loans to affiliates for
purposes unrelated to its business totaled at least $50,000 in
- 26 -
TYE 8/31/88, $702,000 in TYE 8/31/90, and $306,000 in TYE
8/31/91.
Discussion
Section 531 imposes a penalty tax on the accumulated taxable
income of a corporation that is availed of for the purpose of
avoiding tax with respect to its shareholders by permitting
earnings and profits to accumulate instead of distributing them.
Secs. 531, 532(a). The fact that earnings and profits have
accumulated beyond the reasonable needs of the business
establishes a presumption that tax avoidance was a purpose of the
accumulation. Sec. 533(a). The reasonable needs of the business
include reasonably anticipated future needs. Sec. 1.537-1(a),
Income Tax Regs. In order to justify an accumulation for
reasonably anticipated future needs, in general, the corporation
must demonstrate a need warranting such accumulation and the
existence, as of the end of the relevant taxable year, of
specific, definite, and feasible plans to use the accumulation
within a reasonable time to meet this need. Sec. 1.537-1(b),
Income Tax Regs. In recognition of the informality which
commonly characterizes planning within a closely held
corporation, neither the regulations nor the cases require
meticulously drawn formal blueprints for action. Faber Cement
Block Co. v. Commissioner, 50 T.C. 317, 332 (1968); Bremerton Sun
Publishing Co. v. Commissioner, 44 T.C. 566, 584-585 (1965). But
where such documentation is lacking, the intention to dedicate
- 27 -
corporate resources to identified business needs must be
unambiguously evidenced by some contemporaneous course of action
toward this end. Cheyenne Newspapers, Inc. v. Commissioner, 494
F.2d 429, 433-434 (10th Cir. 1974), affg. T.C. Memo. 1973-52;
Smoot Sand & Gravel Corp. v. Commissioner, 241 F.2d 197, 202 (4th
Cir. 1957), affg. in part and revg. in part T.C. Memo. 1956-82;
Snow Manufacturing Co. v. Commissioner, 86 T.C. 260, 273-274, 277
(1986). Section 534 provides that under certain circumstances
the burden of proof with respect to the question whether earnings
and profits have accumulated beyond the reasonable needs of the
business may be shifted to the Government. The parties have
stipulated that petitioner continues to bear the burden of proof.
Rule 142(a).
Working Capital
A corporation may accumulate earnings in order to provide
necessary working capital for its business. Sec. 1.537-2(b)(4),
Income Tax Regs. Respondent determined the amount of working
capital that petitioner needed for one operating cycle by the
approach originally expounded in Bardahl Manufacturing Corp. v.
Commissioner, T.C. Memo. 1965-200. Petitioner has offered its
own Bardahl calculations.4 The details of our own calculations
4
In its trial memorandum and on cross-examination, however,
petitioner questioned the use of the Bardahl analysis to
determine working capital needs of a business like petitioner’s
that involves substantial services in addition to the sale of
inventory. The measurement of petitioner’s working capital needs
(continued...)
- 28 -
of petitioner’s available net liquid assets and working capital
needs are set forth in the Appendix, together with annotations
discussing certain methodological issues on which we disagreed
with one or both of the parties.
Reserve for Legal Expenses
Petitioner contends that the various legal risks to which it
was exposed would have justified the accumulation of a reserve
for legal expenses equal to $250,000 for each of the taxable
years at issue. Respondent determined that no amounts were
allowable as accumulations for this purpose. We are satisfied
that respondent’s determination is correct.
Petitioner attempted to prove the extent of its need
attributable to the policy of providing legal representation to
employees and independent contractors subject to prosecution. We
do not question the reasonableness of the policy. The testimony
petitioner presented on this issue did not establish how much
petitioner expected to require for this purpose, however.
4
(...continued)
is a question of fact on which petitioner has the burden of
proof. Rule 142; Smoot Sand & Gravel Corp. v. Commissioner,
241 F.2d 197, 207 (4th Cir. 1957), affg. in part T.C. Memo.
1956-82. We think petitioner is correct to question the
applicability to this case of a methodology developed for
nonservice businesses. See Myron’s Ballroom v. United States,
382 F. Supp. 582, 588 (C.D. Cal. 1974), revd. on other grounds
sub nom. Myron’s Enterprises v. United States, 548 F.2d 331 (9th
Cir. 1977); Simons-Eastern Co. v. United States, 354 F. Supp.
1003, 1007 (N.D. Ga. 1972). But petitioner has not suggested any
alternative. Therefore we shall use the parties’ Bardahl
calculations as the starting point for our analysis.
- 29 -
Hagerman testified regarding petitioner’s representation of the
six dancers in 1988. She was asked how much she anticipated
their representation would cost at the time of their arrest. She
replied: “At the time I thought around $20,000 apiece if each
one had their own attorney if they didn’t want us to represent--
the corporation to represent them.” When asked whether she meant
that petitioner was prepared to pay this amount, she confirmed
that that was not the case: petitioner would have covered their
legal expenses only if they did not want their own individual
attorneys. Thus, while we know that petitioner paid for the
dancers’ defense, we do not know how much petitioner’s management
expected this representation would cost. The amount petitioner
actually spent to defend the dancers was clearly much less than
the amount Hagerman believed it would have cost the dancers to
secure their own representation. The arrests occurred in June
1988, the trial June 1989. On its Forms 1120 for TYE 8/31/88 and
TYE 8/31/89, petitioner reported aggregate legal expenses in the
amounts of $24,501 and $52,951, respectively.
Petitioner presented no evidence that any amount was set
aside for the dancers’ defense. Even if some specific amount was
set aside, this fact would not explain accumulations in any of
the taxable years at issue, since the evidence indicates that the
representation concluded before the end of the first of these
years. Based on the amounts petitioner actually spent for the
dancers’ defense in TYE 8/31/88 and TYE 8/31/89, we are not
- 30 -
persuaded that petitioner’s management would have believed that
current cash-flows would be insufficient to finance the company’s
legal defense obligations to employees and contractors as they
arose.
Hagerman testified regarding concerns she had during TYE
8/31/89 that the company might become involved in protracted
litigation costing several hundred thousand dollars as a result
of liability under the Child Protection and Obscenity Enforcement
Act. We do not believe her testimony establishes a specific and
definite plan to prepare for such a lawsuit. She evidently
possessed no clear idea of how provisions of the act might apply
to petitioner and what challenging it would entail at the time.5
Nor does there appear to have been any reason to plan for
litigation in determining whether to retain or distribute
earnings at the close of TYE 8/31/89--or at the close of any
subsequent taxable year--in light of the reassurances petitioner
received from its attorneys in June 1989 about the Government’s
decision not to pursue enforcement of the act.
5
When asked whether she anticipated a need to hold funds in
reserve when she learned about the act, she replied: “My first
inkling was we may have to fight this if we were somehow cited *
* * because we weren’t complying with something that we knew
nothing about.” “Anything when you fight the United States
Government is going to cost hundreds of thousands of dollars it
seems that way. It goes on and on for years.” There is no
evidence that her thinking on this matter advanced beyond the
initial stage of vague alarm and consternation she described.
- 31 -
Petitioner presented expert testimony that it would have
been reasonable to set aside $100,000 to $250,000 to provide for
the legal expense of defending itself against exclusionary
zoning. Petitioner argues that it was therefore justified in
accumulating this amount in each taxable year. If petitioner in
fact planned accumulations for this purpose, the accumulations
may well have been justified. The existence of a reasonable
need, however, does not suffice to establish the existence of a
specific, definite, and feasible plan to meet the need.
Snow Manufacturing Co. v. Commissioner, 86 T.C. at 277. Krontz
testified that he had been expecting Ordinance No. 3465 for some
time before its enactment in October 1991. Yet there is no
evidence that petitioner’s management formulated plans to
challenge the ordinance, let alone provide for the costs of such
a challenge at any time during the years at issue. Based upon
the company’s experience challenging the constitutionality of the
predecessor of Ordinance No. 3465 between 1985 and 1987, it would
have been reasonable to expect the costs of such litigation would
be spread over more than 1 year and could easily be covered by
the current year’s cash flow. Petitioner’s total legal expenses
during the years of the prior litigation amounted to only
approximately $70,000. We are not persuaded that any portion of
the accumulations for TYE 8/31/89 through TYE 8/31/92 can be
accounted for by plans to provide for anticipated legal expenses.
Workers’ Compensation
- 32 -
Petitioner argues that owing to the cancellation of its
workers’ compensation insurance, it was justified in accumulating
$50,000 in each of TYE 8/31/90 through TYE 8/31/92. Respondent
properly allowed no amounts as a reserve for this purpose. There
is no question that petitioner would have been justified in
reserving funds for self-insurance. Petitioner’s argument fails
because there is no evidence to substantiate the existence of a
plan to accumulate $50,000 or any other amount specifically to
meet this need. The testimony of petitioner’s president leaves
little doubt that there was no such plan.6
Business Interruption
Petitioner alleges on brief that it had always planned for a
business interruption like the one it experienced from November
1991 through February 1992, and that it recognized the need to
reserve funds. Therefore “prudent business practice requires
retaining an amount of earning equal to three (3) months
operating expenses because of the nature of the business.” The
6
After counsel elicited from Hagerman the general
observation that “the size of lawsuits these days--everybody asks
for at least a half a million to several million for no matter
what they do,” the following colloquy occurred:
Q: Did--but did you consider yourself a minimum amount
that Eyefull should have on hand in the event that any
employee was injured?
A: No, not really, knowing that you’d need at least a half
a million. I would just guess a half a million.
Q: Did you as president of Eyefull set aside some funds
for that contingency?
A: Not particularly for the Workers’ Comp. There was
always funds set aside for the rainy days. I suppose
that would be a rainy day problem.
- 33 -
record contains no support for these allegations. That
petitioner’s business was interrupted for 3 months does not imply
that petitioner could have expected or did expect the need for a
3-month reserve. Nor do we understand why operating costs, which
are generally not incurred during a period of business
suspension, would be an appropriate measure of the funds needed.
The argument is a transparent effort to rationalize accumulations
after the fact, and respondent properly rejected it.
Building Improvements and Equipment Replacement
Petitioner contends that plans for building improvements and
investment in new equipment, both executed during TYE 8/31/92,
justify accumulations of $450,000 at the end of TYE 8/31/90 and
TYE 8/31/91. Respondent allowed no amounts for these purposes
for either taxable year.
On its Form 1120 for TYE 8/31/92, petitioner reported
capital expenditures for building improvements carried out
between October 1991 and February 1992 at a cost of $352,420.
Testimony confirmed that this work consisted, in part, of
remodeling for which petitioner had submitted an architect’s
plans to the county for approval in or around January 1990. In
part, the work also involved correction of building code
violations. Petitioner had been notified of building code
violations on several occasions between early TYE 8/31/90 and TYE
8/31/91, and internal corporate documents indicate that some of
these violations were corrected before TYE 8/31/92. The most
- 34 -
costly structural changes, including cement reinforcement of the
first floor ceiling, were probably performed at the same time as
the remodeling work in TYE 8/31/92 because the expenditures for
repairs and improvements reflected on petitioner’s tax returns
for TYE 8/31/89, TYE 8/31/90, and TYE 8/31/91 are comparatively
modest and do not even approach Hagerman’s estimate of the total
cost of compliance. The need to make these structural changes
had been identified in TYE 8/31/90, and specific plans for
compliance were required. Consequently we believe that the plans
that were eventually executed at a cost of $352,420 in the first
half of TYE 8/31/92 could reasonably explain an accumulation of
approximately this amount at the end of both TYE 8/31/90 and TYE
8/31/91.
Under some circumstances, a lengthy delay in the execution
of alleged plans invites skepticism as to whether the plans were
sufficiently definite and specific to satisfy the requirements of
the regulations. See Suwannee Lumber Manufacturing Co. v.
Commissioner, T.C. Memo. 1979-477; sec. 1.537-1(b), Income Tax
Regs. In this case the delay is understandable. Remodeling was
contingent on county approval, county approval was contingent on
the availability of additional parking space, and coordination of
the major structural corrections with the elective remodeling
work was likely to have been efficient from both an economic and
architectural standpoint. Considering the bureaucratic and
technical complications, we do not interpret a delay of 1 to 2
- 35 -
years as an indication that petitioner lacked either a clear idea
of the work to be done or a determination to do it as soon as
practicable.
Petitioner’s tax return for TYE 8/31/92 shows that $130,523
was incurred in that year to acquire numerous items of
depreciable property ranging in cost from a few hundred to a few
thousand dollars. The property consists of lighting, sound
system, video vender booths, and the like, for the most part
equipment that would have been used for normal business
operations. Virtually all the items were classified as 7-year
property for ACRS purposes. During the 7-year history of its
business operations, in only one other year, TYE 8/31/88, had
petitioner made comparable expenditures on equipment. Some of
the purchases seem to represent normal replacement; some may
represent expansion of capacity concomitant with the remodeling
work that occurred in the same year. The nature of the items and
the circumstances of their acquisition suggest that the
expenditures could reasonably have been anticipated as of the end
of TYE 8/31/90 and TYE 8/31/91. But nothing in the record
confirms that large-scale equipment replacement and expansion of
capacity were in fact contemplated at these times. The evidence
is equally consistent with the inference that, for most of the
items, the purchase decision was made during TYE 8/31/92. Even
if petitioner’s management did plan the acquisitions prior to TYE
8/31/92, the total cost was not so large in relation to
- 36 -
petitioner’s cash flow that they could not reasonably have
expected to be able to finance the acquisitions without
accumulation. Therefore the acquisitions do not explain any part
of the accumulations in TYE 8/31/90 and TYE 8/31/91.
Parking
Petitioner argues that its efforts to secure additional
parking to comply with County Building and Safety Department
requirements justify an accumulation of $500,000 in TYE 8/31/91
and TYE 8/31/92. Respondent allowed no amount for this purpose.
Petitioner presented evidence of only one definite purchase
plan that would have warranted an accumulation in any of the
years at issue. This was the plan to acquire the property that
petitioner is currently renting from MIC. Once petitioner
concluded leasing arrangements with MIC, its needs would have
been satisfied and no accumulation of funds to acquire property
for parking would be justified. No evidence in the record fixes
the time of this transaction. We can confidently infer, however,
that petitioner and MIC had reached an agreement before the end
of TYE 8/31/92, because the loan to MIC, which partly financed
MIC’s acquisition of the rental property, appears on petitioner’s
tax return for TYE 8/31/92.
It is possible that petitioner had already abandoned its
plan to purchase the property before the end of TYE 8/31/91.
Krontz testified that petitioner paid MIC $8,000 per month, or
$96,000 per year under the lease. On its tax return for TYE
- 37 -
8/31/92, petitioner claimed a deduction for rent that was $91,681
higher than the deduction it had claimed for TYE 8/31/91. If the
increase in rental payments was attributable to the MIC lease,
then petitioner paid MIC an amount corresponding to slightly less
than 11-1/2 months rent. The lease might therefore have taken
effect within the first few weeks of TYE 8/31/92.
Corroboration of this inference can be found in the fact
that after a delay of 1-1/2 years due largely to its inability to
comply with the county parking requirements, petitioner commenced
remodeling work in October 1991, the second month of TYE 8/31/92.
To have proceeded with its remodeling plans before securing
additional parking space in defiance of the Building and Safety
Department would have been self-defeating and utterly
inconsistent with the deferential and responsible attitude that
petitioner’s management had hitherto displayed in its dealings
with the department. If petitioner began leasing the property
just after the start of TYE 8/31/92, there is a high probability
that by the end of TYE 8/31/91 either there was an agreement in
principle with MIC or the county had rendered its decision
denying approval to petitioner’s plan to purchase the property.
In either case the abandoned purchase plan could not justify any
part of the accumulations at the end of TYE 8/31/91. Having
failed to fix the chronology of these events more precisely in
relation to the close of TYE 8/31/91, petitioner has not
satisfied its burden of proof.
- 38 -
Expansion and Relocation
Petitioner attempted to prove that its accumulations were
needed to finance costs of relocation amounting to $1 million or
more and to finance the expansion and diversification of its
business. Respondent determined that no accumulations were
allowable for these purposes.
There is no basis for concluding that petitioner reasonably
retained earnings for expansion or diversification during the
years at issue. Hagerman testified regarding a number of
specific investment possibilities that she considered. The only
one for which there is evidence of actual negotiations was the
video store that she offered to purchase in 1989. Contrary to
her account at trial, however, contemporaneous documents indicate
that she was not negotiating the acquisition on petitioner’s
behalf.
The threat to petitioner’s continued operation that arose
first from the expiration of its theater license and later from
Ordinance No. 3465 would have warranted financial preparations
for relocation. The various costs of reestablishing petitioner’s
business in a new location would have been substantial. Hagerman
anticipated that they could exceed $1 million. It does not
follow, however, that petitioner’s management had specific,
definite, and feasible plans to provide for such costs. If after
expiration of the theater license petitioner’s management
recognized a need to accumulate $1 million and were determined to
- 39 -
do so, the financial policies they actually implemented in
TYE 8/31/90 and TYE 8/31/91 belied their intentions.
In TYE 8/31/90, petitioner made loans unrelated to its
business totaling $702,000, leaving it with net liquid assets
sufficient to cover only its needs for working capital and a
portion of the expected costs of remodeling (see Appendix Table
2). If all the loans had been made early in the taxable year,
one might be able to argue that petitioner’s management approved
them on the basis of an overestimate of petitioner’s earnings for
the year. In fact the loans were made throughout the year.
In TYE 8/31/91, we observe a similar pattern. Petitioner
ended the taxable year with a modest excess of net liquid assets
over its needs for working capital and remodeling (see Appendix
Table 2). But it could have accumulated an additional $650,000
toward the $1 million target if it had not made further loans
unrelated to its business totaling $306,000 and in the last month
of the taxable year transferred $340,000 in precious metal
holdings to Mohney and its shareholders. If these assets were
genuinely needed for a relocation fund, a distribution to the
shareholders could not be justified. Nor was there an obligation
to pay the consulting fees. Since TYE 8/31/85, Mohney had
permitted petitioner to defer payment of the fees so long as
financial circumstances required retention of the funds. During
TYE 8/31/90 and TYE 8/31/91, petitioner’s management looked for
replacement property, but there is no evidence that their
- 40 -
inquiries advanced to the point of negotiating for any of the
properties they saw.
Petitioner’s situation changed markedly in TYE 8/31/92. The
taxable year began with the enactment of Ordinance No. 3465
requiring petitioner to relocate by January 1, 1995. If this
were not sufficient to impress petitioner’s management with the
urgent need for resolute action, shortly thereafter they received
a strong foretaste of the fate that awaited when, in November,
county officials closed petitioner’s complex and business
stopped. Now Krontz’ searches bore fruit. A property was
identified in Mira Loma. An offer of $1.15 million was made; a
counteroffer of $1.25 million was received. Negotiations over
details of the transaction carried over into the next taxable
year. There is no evidence that petitioner made any loans
unrelated to its business in TYE 8/31/92.
Once petitioner’s management had concrete prospects of an
investment exceeding $1 million, the likelihood that they took
this into account in their financial planning greatly increases.
How much they could reasonably have accumulated for this purpose
is not clear. The Mira Loma deal would have involved seller
financing: to acquire the property petitioner would have had an
immediate need for only the $100,000 downpayment. But there
would have been various other costs as well, including
construction costs and costs to secure permits and favorable
zoning. Petitioner did not prove exactly how much it would have
- 41 -
needed. But we need not determine this. We need only determine
whether petitioner has adequately explained the excess of its net
liquid assets as of the close of TYE 8/31/92 over the amount it
would have required for working capital. This excess was
approximately $45,000 (see Appendix Table 2). Since the required
downpayment alone would have exceeded this amount, we are
satisfied that petitioner did not allow its earnings to
accumulate beyond the reasonable needs of its business in this
year.
Conclusions
Table 2 in the Appendix sets forth the calculations
supporting our conclusion that petitioner allowed its earnings to
accumulate beyond the reasonable needs of its business for the
first 3 of the 4 taxable years at issue. The underlying
methodology is well established in the case law and requires no
elaboration. See Snow Manufacturing Co. v. Commissioner, 86 T.C.
at 280-282; Alma Piston Co. v. Commissioner, T.C. Memo. 1976-107,
affd. 579 F.2d 1000 (6th Cir. 1978); Bardahl Manufacturing Corp.
v. Commissioner, T.C. Memo. 1965-200; Grob, Inc. v. United
States, 565 F. Supp. 391 (E.D. Wis. 1983). For purposes of
comparing petitioner’s reasonable needs with the net liquid
assets available to meet those needs, the loans made to
affiliates for purposes that had no relation to petitioner’s
business are treated as liquid assets. Faber Cement Block Co. v.
- 42 -
Commissioner, 50 T.C. at 330; Bardahl Manufacturing Corp. v.
Commissioner, supra.
The fact that a corporation accumulated earnings and profits
beyond the reasonable needs of the business is determinative of
the purpose to avoid income tax with respect to its shareholders,
unless the corporation proves the contrary by a preponderance of
the evidence. Sec. 533(a). This presumption cannot be rebutted
merely by evidence that tax avoidance was not the exclusive,
primary or dominant motive for the accumulations: to escape
liability for the accumulated earnings tax the corporation must
prove that tax avoidance was not one of the purposes.
United States v. Donruss Co., 393 U.S. 297 (1969). Cases in
which unreasonable accumulations have been fully explained by
legitimate corporate considerations are few. See, e.g.,
Bremerton Sun Publishing Co. v. Commissioner, 44 T.C. 566 (1965).
Viewing the record as a whole, we find that petitioner had a
general policy of retaining its earnings. As petitioner’s
president confirmed when asked whether the company was setting
aside funds or whether she herself made a decision to set aside
funds for any purpose during the years at issue: “It was not a
conscious decision. We knew always that you had to have funds
for anything that you would want to expand, or build, or do
renovations.” By routinely retaining earnings, whether or not an
identifiable need for a specific amount existed at the time,
petitioner’s management assured themselves that, as she put it,
- 43 -
“there was always funds set aside for the rainy days.”
Petitioner accumulated partly to provide for its own potential
needs. Evidently an understanding existed among companies within
the Mohney Group that any surplus accumulated by one member
should be made available to other members who needed the funds.
“We are all friends, we help each other out,” Hagerman explained.
Thus, through loans to its affiliates of over $1 million in TYE
8/31/90 and TYE 8/31/91, petitioner’s surpluses were applied to a
constructive use somewhere in the group.
Petitioner attempts to justify its policy by the observation
that commercial lending is essentially impossible for adult
entertainment businesses to obtain. This may well be true, but
it does not satisfactorily account for the retention of earnings
without specific, definite, and feasible plans to use them. By
consenting to the accumulation and pooling of earnings by
petitioner and other members of the Mohney Group, the common
owners were implicitly providing the financing that was
unavailable from commercial sources. If petitioner had regularly
distributed surplus funds, there is no reason to expect that its
shareholders would not have been willing to reinvest their
dividends in the Mohney Group wherever and whenever a definite
need arose. Petitioner’s explanation is not sufficient to rule
out the possibility that its policy was designed to serve tax
avoidance purposes as well. Petitioner has not carried its
burden of proof. Accordingly, it is liable for accumulated
- 44 -
earnings tax for TYE 8/31/89, TYE 8/31/90, and TYE 8/31/91 in the
amounts of $26,105, $159,153, and $93,515, respectively (see
Appendix Table 2).
Issue 3: Additions to Tax and Penalties
Background
During the taxable years at issue petitioner retained Modern
Bookkeeping, Inc. (Modern), to provide bookkeeping services and
to prepare petitioner’s tax returns. In late 1987 Modern had
hired Certified Public Accountant David Shindel (Shindel) to
oversee tax compliance with respect to five of Modern’s clients.
Shindel supervised the preparation of work papers and tax returns
and signed the returns when satisfied that they reasonably
complied with the tax laws. The scope of Shindel’s engagement
was extended to petitioner by 1989. In the course of his review,
he soon became concerned that petitioner’s sizeable retained
earnings might subject it to liability for the accumulated
earnings tax. He attempted to determine whether the
accumulations were reasonable. At some time in 1989 he brought
this problem to Mohney’s attention, because he knew Mohney was
actively involved in petitioner’s management.
Shindel prepared and signed petitioner’s Forms 1120 for each
of the taxable years at issue. The Forms 1120 for TYE 8/31/89,
TYE 8/31/90, and TYE 8/31/91 were filed on November 14, 1990,
December 11, 1991, and June 3, 1992, respectively. In her notice
of deficiency, respondent determined that petitioner was liable
- 45 -
for additions to tax under section 6651 for TYE 8/31/89, TYE
8/31/90, and TYE 8/31/91; the addition to tax under section
6653(a) for TYE 8/31/89; and accuracy-related penalties under
section 6662(a) for TYE 8/31/90 and TYE 8/31/91.
Discussion
An addition to tax is imposed under section 6651 for failure
to file a return within the prescribed period, unless it is shown
that such failure was due to reasonable cause and not due to
willful neglect. Sec. 6651(a)(1). The amount of the addition is
5 percent of the amount required to be shown as tax for each
month that the delinquency persists, up to a maximum of
25 percent. Delinquent filing is due to reasonable cause if the
taxpayer exercised ordinary business care and prudence, but was
nevertheless unable to file its tax return in a timely manner.
Sec. 301.6651-1(c)(1), Proced. & Admin. Regs. Reliance upon a
professional return preparer does not constitute reasonable cause
for failure to meet the filing deadline. United State v. Boyle,
469 U.S. 241, 253 (1985). The burden of proving reasonable cause
and the absence of willful neglect is on the taxpayer. Rule
142(a).
Petitioner filed its returns for TYE 8/31/89 and TYE 8/31/90
approximately 1 year late and its return for TYE 8/31/91 more
than 6 months late. Petitioner argues that it exercised ordinary
business care and prudence because it relied upon Modern to
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handle its returns. United States v. Boyle, supra, forecloses
this argument. Petitioner is liable for the addition to tax.
For TYE 8/31/89, section 6653(a) provides for an addition to
tax equal to 5 percent of an underpayment of tax if any part of
the underpayment is due to negligence. “Negligence” includes any
failure to make a reasonable attempt to comply with the
provisions of the Code. Sec. 6653(a)(3). For purposes of
section 6653(a), the term “underpayment” has the same meaning as
“deficiency” as defined in section 6211(a), except that the
amount shown on the return is treated as zero if the return was
filed after the prescribed deadline, including any extension.
Sec. 6653(c)(1). Delinquent filing is prima facie evidence of
negligence. Emmons v. Commissioner, 92 T.C. 342, 349 (1989),
affd. 898 F.2d 50 (5th Cir. 1990). Where the taxpayer cannot
prove reasonable cause and the absence of willful neglect for
purposes of section 6651(a)(1), the taxpayer cannot carry its
burden of proof for purposes of section 6653(a). Condor Intl.,
Inc. v. Commissioner, 98 T.C. 203, 225 (1992), affd. in part and
revd. in part 78 F.3d 1355 (9th Cir. 1996).
Since petitioner’s return for TYE 8/31/89 was untimely
filed, the entire amount of the tax due is treated as an
underpayment. Since this underpayment was attributable to
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conduct that constitutes negligence and petitioner can offer no
excuse, it is liable for the addition to tax.7
Section 6662(a) and (b)(1)8 imposes an accuracy-related
penalty equal to 20 percent of the portion of an underpayment of
tax that is attributable to negligence. For purposes of section
6662, unlike section 6653, the amount shown on a late return is
not treated as an underpayment. Sec. 6664(a)(1). Consequently
delinquency, by itself, is not grounds for the accuracy-related
penalty. Sec. 1.6662-2(a), Income Tax Regs. As under prior law,
“negligence” includes any failure to make a reasonable attempt to
comply with the provisions of the Code. Sec. 6662(c). A
position with respect to an item is attributable to negligence if
the taxpayer failed to maintain adequate records to substantiate
7
Cf. Lazore v. Commissioner, 11 F.3d 1180, 1188-1189 (3d
Cir. 1993), revg. in relevant part T.C. Memo. 1992-404 (holding
that an underpayment was not attributable to delinquency because
the taxpayers would have reported no tax due even if they had
filed on time). In a footnote to its decision, the Court of
Appeals for the Third Circuit questioned the soundness of the
holding in Emmons v. Commissioner, 92 T.C. 342 (1989), affd. 898
F.2d 50 (5th Cir. 1990), that in the absence of extenuation
delinqency is grounds for imposition of the addition to tax under
sec. 6653. Lazore v. Commissioner, supra at 1189 n.4. Although
we reaffirm our belief in the logic of Emmons v. Commissioner,
supra and Condor Intl., Inc. v. Commissioner, 98 T.C. 203 (1992),
affd. in part and revd. in part 78 F.3d 1355 (9th Cir. 1996), we
note that our result for TYE 8/31/89 would not differ under the
negligence analysis we use in applying sec. 6662(a) and (b)(1) to
TYE 8/31/90 and TYE 8/31/91, infra. See Pessin v. Commissioner,
59 T.C. 473, 489 (1972).
8
Although the notice of deficiency determined negligence
(sec. 6662(b)(1)) and substantial understatement (sec.
6662(b)(2)) as alternative theories for imposition of the
penalty, on brief respondent pursued only the former theory.
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it properly. Valadez v. Commissioner, T.C. Memo. 1994-493;
sec. 1.6662-3(b), Income Tax Regs.
The accuracy-related penalty does not apply to any part of
an underpayment for which the taxpayer had reasonable cause and
acted in good faith. Sec. 6664(c)(1). In order for reliance on
the judgment of a competent tax return preparer to qualify for
this exception, the taxpayer must demonstrate that the return
preparer formed his judgment on the basis of information that the
taxpayer believed, and had reason to believe, was complete and
accurate. United Circuits, Inc. v. Commissioner, T.C. Memo.
1995-605; Conway v. Commissioner, T.C. Memo. 1994-405; Saghafi v.
Commissioner, T.C. Memo. 1994-238; sec. 1.6664-4(b)(1), Income
Tax Regs.
The underpayments for TYE 8/31/90 and TYE 8/31/91 are
attributable to a bad debt deduction that was conceded before
trial and unreasonable accumulations of earnings. Petitioner
presented no evidence in regard to the basis for the bad debt
deduction that it did not litigate. It could offer scarcely more
documentation to substantiate the business plans by which it
attempted to justify its accumulations. The underpayments are
therefore attributable to negligence.
Petitioner takes the position that the unsubstantiated
positions to which the underpayments are attributable can be
justified by its reliance on Modern. Shindel prepared and signed
petitioner’s tax returns for both years. His experience and
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qualifications clearly were sufficient to warrant reliance upon
his judgment. Yet without knowing what Shindel understood the
purposes for the accumulations to be and on what information this
understanding was based, we cannot conclude that petitioner
reasonably and in good faith relied on his judgment. Shindel
discussed the accumulated earnings problem with Mohney,
petitioner’s de facto chief executive. Counsel might have
elicited from Shindel and/or Mohney testimony bearing on this
important question. It remains, however, unanswered. Petitioner
could not have underpaid its tax in good faith if, as section
533(a) requires us to presume, petitioner’s management permitted
corporate earnings to accumulate unreasonably in order to defer
shareholder-level withholding tax, and they were aware that this
motive subjected petitioner to liability for the accumulated
earnings tax. Petitioner has not satisfied its burden of proof.
The accuracy-related penalty therefore applies.
To reflect the foregoing,
Decision will be entered
under Rule 155.
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Appendix
Table 1
TYE TYE TYE TYE
Bardahl Computations Aug. 31, 1989 Aug. 31, 1990 Aug. 31, 1991 Aug. 31, 1992
1,2 9,10 15,16 23
Operating Expenses 1,452,981 1,596,783 1,807,151 1,838,351
Cost of Goods Sold 324,128 433,311 440,046 322,254
Peak Inventory 93,197 93,197 68,597 68,597
Days in Inventory Cycle 104.95 78.50 56.90 77.70
Days in Receivables Cycle - 0 - - 0 - - 0 - 0.88
Average Payables 77,840 41,665 37,384 38,549
3 11 17 24
Days in Credit Cycle 19.55 9.52 6.85 7.65
Days in Operating Cycle 85.40 68.98 50.05 70.05
Amount of Working Capital Needs,
4 12 18 25
One Cycle 339,943 301,753 247,580 352,793
5 19 26
Current Assets 673,078 925,474 1,211,367 504,060
6 20
Current Liabilities 243,264 405,318 452,127 106,638
Net Liquid Assets Available
for Needs 429,814 520,156 759,240 397,422
Computation of Accumulated
Taxable Income
7 13 21
Taxable Income 656,329 1,107,258 736,378 166,160
8 8 22
Less Income Taxes Paid or Accrued 223,152 376,468 205,535 56,494
Less Dividends Paid Deduction - 0 - - 0 - 65,000 50,000
Current Earnings and Profits
Retained 433,177 730,790 333,981 59,666
Less Accumulated Earnings Credit 339,943 162,387 - 0 - 59,666
Accumulated Taxable Income 93,234 568,403 333,981 - 0 -
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Table 2
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
Anticipated Accumulation
Increase Working Beyond
In Earnings Net Capital Total Excess Investment Loans Reasonable
Accumulated & Profits Liquid Needs Anticipated Reasonable Liquid Unrelated Unrelated Needs
Earnings & Over Prior Assets For One Extraordinary Needs Assets To To (3)+(8)
TYE Profits Year Available Cycle Needs (4)+(5) (3)-(6) Business Business +(9)-(6)
8/31/88 268,371
8/31/89 701,548 433,177 429,814 339,943 -0- 339,943 89,871 -0- -0- 89,871
8/31/90 1,432,338 730,790 520,156 301,753 352,000 653,753 (133,597) -0- 702,000 568,403
8/31/91 1,766,319 333,981 759,240 247,580 352,000 599,580 159,660 -0- 306,000 465,660
8/31/92 1,825,985 59,666 397,422 352,793 >44,629 >397,422 -0- -0- -0- -0-
TYE 8/31/89 TYE 8/31/90 TYE 8/31/91 TYE 8/31/92
(1) Assets in columns (3)+(8)+(9) 429,814 1,222,156 1,065,240 397,422
(2) Less current earnings and profits retained 433,177 730,790 333,981 59,666
(3) Prior accumulation available for reasonable -0- 491,366 731,259 337,756
needs
(4) Reasonable needs 339,943 653,753 599,580 >397,422
(5) Current earnings and profits retained for
reasonable needs (4)-(3) sec. 535(c)(1) 339,943 162,387 -0- 59,666
(6) Accumulated taxable income (2)-(5)
sec. 535(a) 93,234 568,403 333,981 -0-
Accumulated earnings tax sec. 531 26,105 159,153 93,515 -0-
- 52 -
Annotations to Table 1
TYE 8/31/89
1. In computing operating expenses for the year,
respondent excluded amounts as to which a claim for deduction
was disallowed in the notice of deficiency. After trial
respondent conceded that payments for insurance premiums were
properly deducted as ordinary and necessary expenses.
Therefore we have included them.
2. Respondent included in operating expenses for the
year the amount of Federal income tax determined in the notice
of deficiency. The taxes that should be taken into account are
petitioner’s estimated tax payments. Doug-Long, Inc. v.
Commissioner, 72 T.C. 158, 176-177 (1979); Empire Steel
Castings, Inc. v. Commissioner, T.C. Memo. 1974-34.
3. Respondent calculated the length of petitioner’s
credit cycle by multiplying the number of days in the year by a
quotient of which the numerator is peak payables for the year
and the denominator is total merchandise purchased for the
year. Petitioner argues that the length of its credit cycle
for each of the taxable years at issue was no more the 10 days.
The basis for this figure is Hagerman’s testimony that
petitioner regularly paid its bills every 2 weeks. Our cases
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do not prescribe a single method for determining credit cycle.
However, the data do not corroborate petitioner’s position and
we are not aware of any authority for respondent’s formula.
Accordingly, we have used the quotient of average payables
divided by total operating expenses. See Snow Manufacturing
Co. v. Commissioner, 86 T.C. 260 (1986); Kingsbury Invs., Inc.
v. Commissioner, T.C. Memo. 1969-205.
4. The amount of working capital that a taxpayer could
reasonably expect to need for one operating cycle is determined
by multiplying total operating expenses for 1 year by the
length of its operating cycle expressed as a fraction of a
year. In her Bardahl calculations, respondent used the current
year’s operating expenses for this purpose. This Court has
often found it more appropriate to use the actual operating
expenses for the subsequent year as a proxy for the amount of
operating expenses that the taxpayer expected as of the close
of the year. Empire Steel Castings, Inc. v. Commissioner,
supra; Delaware Trucking Co. v. Commissioner, T.C. Memo. 1973-
29. The use of subsequent year operating expenses for purposes
of this calculation will result in a higher estimate of working
capital needs when a business’ costs are subject to inflation
or the business is growing. Petitioner argues that respondent
should have used its operating expenses for the subsequent
year. One problem with petitioner’s position is that for TYE
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8/31/92 current year operating expenses must be used because
data on subsequent year operating expenses were not presented
in evidence. The more important problem is that petitioner has
suggested no reason to believe that the assumption of perfect
foresight would produce a closer approximation of the amount
petitioner actually estimated it would need at the time.
Ultimately the question is one of fact, and petitioner has not
satisfied its burden of proof. We have used current operating
expenses.
5. Respondent included prepaid expenses in current
assets. This treatment of prepaid expenses is supported by
authority. Bardahl Intl. Corp. v. Commissioner, T.C. Memo.
1966-182. Petitioner argues that this is inappropriate, since
prepaid expenses are not funds available for distribution to
shareholders. In the Bardahl analysis we compare working
capital needs with available net liquid assets. What matters
is not the absolute amounts, but the difference between them.
For purposes of this comparison, including prepaid expenses in
available net liquid assets is effectively equivalent to
deducting these expenses from working capital needs.
6. In the worksheet accompanying the notice of
deficiency the amount of “other current obligations” was stated
as $195,801, a figure taken directly from petitioner’s Form
1120, Schedule L, for TYE 8/31/89. Schedule L discloses that
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the amount consists of State and Federal taxes payable.
Respondent revised this figure to $21,985 in the Bardahl
calculations she prepared for trial. The revision has the
effect of increasing available net liquid assets, the excess of
new liquid assets over working capital needs, and hence the
accumulated earnings tax liability. Therefore the revision
constitutes “new matter” for which respondent bears the burden
of proof. Rule 142(a); Achiro v. Commissioner, 77 T.C. 881,
890 (1981). Respondent provided no explanation at trial.
Consequently we must use the figure originally accepted in the
notice of deficiency.
7. The starting point for computing accumulated taxable
income is petitioner’s correct taxable income for the year.
Sec. 535(a). The figure used by respondent improperly failed
to reflect a deduction for the insurance premium.
8. In her computation of accumulated taxable income
respondent deducted from taxable income the amount of Federal
income tax due for the year as determined in the notice of
deficiency. This was an error. Section 535 provides for the
deduction of Federal income tax accrued during the taxable
year. Sec. 535(b)(1). For this purpose a tax liability is not
treated as accrued during the taxable year if the taxpayer
contested it at the time it was proposed. Dixie Pine Prods.
Co. v. Commissioner, 320 U.S. 516 (1944); Goodall’s Estate v.
- 56 -
Commissioner, 391 F.2d 775 (8th Cir. 1968), revg. T.C. Memo.
1965-154; Doug-Long, Inc. v. Commissioner, 73 T.C. 71 (1979);
sec. 1.535-2(a)(1), Income Tax Regs. Accordingly, we use the
amount of Federal income tax shown on petitioner’s return.
TYE 8/31/90
9. See note 1.
10. See note 2.
11. See note 3.
12. See note 4.
13. See note 7.
14. See note 8.
TYE 8/31/91
15. Operating expenses should include the amount of
consulting fees paid to Mohney, which petitioner properly
deducted as an ordinary and necessary business expense.
16. No estimated Federal income tax payments were in fact
made. Arguably, estimated tax payments should be included in
operating expenses even if not actually made, because
petitioner would have expected to comply with the requirement
to pay estimated tax in the following taxable year. For the
sake of consistency we include only estimated taxes that
petitioner paid, but this should not distort the results of our
analysis. The unpaid tax seems to have been included in the
amount of “current liabilities” stated on Form 1120, Schedule
- 57 -
L, for TYE 8/31/91, which we have used to determine available
net liquid assets. Thus, if we omit unpaid estimated tax from
the calculation of working capital needs, the effect is offset
by a corresponding reduction in available net liquid assets.
17. See note 3.
18. See note 4.
19. For reasons that were not explained, in her Bardahl
computations for trial respondent omitted an investment in gold
listed on petitioner’s Form 1120, Schedule L. Respondent had
included this item in the worksheet accompanying the notice of
deficiency. Since the investment appears to be a cash
equivalent, its inclusion in current assets would appear to be
appropriate.
20. We use the amount of “other current obligations”
stated on Form 1120, Schedule L, and accepted by respondent in
computations on the worksheet accompanying the notice of
deficiency. The revised amount that she used in computations
for purpose of trial was not explained. See note 6.
21. Taxable income reflects amounts properly deducted for
insurance premiums and consulting fees.
22. See note 8.
TYE 8/31/92
23. See note 2.
24. See note 3.
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25. See note 4.
26. We use the year-end balance stated on Form 1120,
Schedule L, and the worksheet accompanying the notice of
deficiency. For reasons that were not explained, in her
Bardahl computations for trial respondent used the much higher
balance for the beginning of the year, which has the effect of
increasing available net liquid assets and, ultimately,
accumulated earnings tax liability. Thus, the revision would
constitute “new matter” for which respondent offered no proof.