T.C. Memo. 1997-300
UNITED STATES TAX COURT
O.S.C. & ASSOCIATES, INC. d.b.a.
OLYMPIC SCREEN CRAFTS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3522-95. Filed June 30, 1997.
Daniel L. Casas, Diana T. Gendotti, and Sheila M. Riley, for
petitioner.
Paul J. Krug and Virginia J. Coffre, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
FOLEY, Judge: By notice of deficiency dated December 5,
1994, respondent determined the following deficiencies and
accuracy-related penalties:
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Penalty
Year Deficiency Sec. 6662(a)
1990 $130,182 $26,036
1991 544,877 108,975
1992 413,649 82,730
Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for the years in issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
The issues we must decide are as follows:
1. Whether petitioner, pursuant to section 162, is entitled
to deduct certain compensation payments to shareholders in
amounts in excess of the amounts determined by respondent. We
hold that petitioner is not so entitled.
2. Whether petitioner, pursuant to section 6662(a), is
liable for accuracy-related penalties for negligence. We hold
that petitioner is liable.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
O.S.C. & Associates, Inc. d.b.a. Olympic Screen Crafts was
incorporated under California law in 1982. During the years in
issue, petitioner's principal place of business was in Fremont,
California. Allen Blazick is petitioner's chief executive
officer, Janette Blazick (Allen Blazick's wife) is petitioner's
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secretary and treasurer, and Steven Richter (Mrs. Blazick's
brother) is petitioner's vice president. Together the three
constituted petitioner's board of directors.
Mr. Blazick is a resident of Fremont, California. He
attended Armstrong College, where he received a bachelor's degree
in business management and a master's degree in business
administration. In January of 1970, while attending college, he
purchased a silk-screen printing business. From 1970 through
1972, he and his wife, Janette, conducted the business from their
residence. He had no previous experience in the printing
business but learned quickly. In 1982, Mr. Blazick incorporated
the business under the name "O.S.C. & Associates, Inc." During
the years in issue, Mr. Blazick owned 90 percent of petitioner's
stock and Mr. Richter owned 10 percent. Mr. Blazick expanded the
business to include numerous printing processes and other
services. During the years in issue, petitioner employed between
179 and 235 employees, including numerous managerial and
supervisory personnel.
Leo Rosi was petitioner's accountant. Messrs. Rosi and
Blazick were classmates at Armstrong College, and in the late
1970's, Mr. Blazick became Mr. Rosi's client. In 1988 or 1989,
Mr. Rosi advised Messrs. Blazick and Richter that petitioner
should pay dividends. Their response to Mr. Rosi's advice
discouraged Mr. Rosi from raising the issue in subsequent years.
Petitioner has never declared or paid dividends.
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In 1985, Mr. Rosi drafted an incentive compensation plan
(the plan), applicable only to Messrs. Blazick and Richter, which
was approved by the board of directors on October 7, 1985. The
plan provided for the payment, after the close of the fiscal
year, of compensation in cash and/or promissory notes.
Pursuant to the terms of the plan, the first step is to
calculate the "Adjusted Industry Gross Margin". The adjusted
industry gross margin, or hypothetical gross profit, is the gross
profit petitioner would have made on its sales if its gross
profit margin had equaled the printing industry's average gross
profit margin (i.e., petitioner's sales x industry average gross
profit percentage = hypothetical gross profit). This
hypothetical gross profit is then compared to petitioner's actual
gross profit for the year. The amount by which petitioner's
actual gross profit exceeds the hypothetical gross profit
constitutes the incentive compensation pool. The plan allocates
the incentive compensation pool to Messrs. Blazick and Richter
"According to Stock Ownership" (i.e., 90 percent to Mr. Blazick
and 10 percent to Mr. Richter).
Under the plan, each allocation is reduced if certain
contingencies occur. Mr. Blazick's allocation is reduced by
inventory shortages in excess of $100,000 and by bad debts. Mr.
Richter's allocation is reduced by inventory spoilage in excess
of $100,000 and production rerun costs in excess of $100,000.
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Petitioner operated on a fiscal year ending on October 31.
Petitioner's financial statements for the years in issue
delineated the following figures:
FYE 1990
Sales/revenue $10,271,148.12
Cost of goods sold (5,978,195.24)
Gross profit 4,292,952.88
Net income 192,865.38
Yearend net worth 194,490.31
FYE 1991
Sales/revenue $13,115,588.55
Cost of goods sold (7,324,963.44)
Gross profit 5,790,625.11
Net income 134,160.16
Yearend net worth 328,650.47
FYE 1992
Sales/revenue $12,310,770.53
Cost of goods sold (5,981,916.36)
Gross profit 6,328,854.17
Net income 143,809.07
Yearend net worth 472,459.54
Mr. Rosi calculated the compensation due under the plan. In
calculating the compensation, he referred to information
published annually in a survey of small businesses (the Survey).
For the 1990 calculation, he used 32.189 percent as the industry
average gross profit margin. For that year, the Survey reported
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a 34.93-percent industry average. For the 1991 calculation, he
again used the 1990 industry average (i.e., 32.189 percent)
rather than the 1991 industry average. In the 1990 and 1991
calculations, he used figures from a sample of printing companies
categorized according to the amount of their sales. In 1992,
however, he used figures from a sample of printing companies
categorized according to the value of their assets. In addition,
he used a chart applicable to companies with assets under $1
million when petitioner had assets in excess of that amount.
Also in 1992, petitioner incurred bad debts of $166,700. Before
adjusting Mr. Blazick's allocation, however, Mr. Rosi reduced the
bad debts figure to $112,403.
During the years in issue, petitioner paid, in the form of
cash and promissory notes, the following amounts to Messrs.
Blazick and Richter:
1990 1991 1992
Allen Blazick
Salary $155,372.00 $175,845.00 $173,372
Incentive 490,859.92 1,651,145.76 1,324,608
Total 646,231.92 1,826,990.76 1,497,980
Steven Richter
Salary $57,791.00 $64,616.00 $60,000
Incentive 98,035.62 183,460.64 149,179
Total 155,826.62 248,076.64 209,179
For each year in issue, petitioner filed a Form 1120 (U.S.
Corporation Income Tax Return) and claimed a deduction for the
compensation paid to Messrs. Blazick and Richter. Respondent, in
the notice of deficiency, disallowed $357,453 of petitioner's
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1990 deduction, $1,580,631 of petitioner's 1991 deduction, and
$1,198,677 of petitioner's 1992 deduction. The petition in this
case was filed on March 6, 1995.
OPINION
I. Deductibility of Plan Payments
Section 162(a) provides that a taxpayer may deduct all
"ordinary and necessary expenses paid or incurred during the
taxable year in carrying on any trade or business". Such
expenses may include "a reasonable allowance for salaries or
other compensation for personal services actually rendered".
Sec. 162(a)(1); sec. 1.162-7(a), Income Tax Regs. For such an
expense to be deductible, two elements must be present: (1) The
amount must be reasonable, and (2) the expense must relate to
compensation for services actually rendered. Elliotts, Inc. v.
Commissioner, 716 F.2d 1241, 1243 (9th Cir. 1983), revg. T.C.
Memo. 1980-282. Where there is evidence that an otherwise
reasonable compensation payment contains a disguised dividend, we
may expand our inquiry into the existence or nonexistence of
compensatory intent. Id. at 1244; see also Ruf v. Commissioner,
T.C. Memo. 1993-81, affd. without published opinion 57 F.3d 1078
(9th Cir. 1995).
Numerous factors in the present case lead us to conclude
that the plan allocations were not intended as compensation for
services rendered. First, in 1990, 1991, and 1992, petitioner
paid Messrs. Blazick and Richter salaries and bonuses totaling
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approximately 81 percent, 94 percent, and 92 percent,
respectively, of petitioner's net income (i.e., calculated by
adding back compensation). Such high percentages are consistent
with the existence of disguised dividends. See Pacific Grains,
Inc. v. Commissioner, 399 F.2d 603 (9th Cir. 1968), affg. T.C.
Memo. 1967-7.
Second, petitioner has never declared or paid a dividend.
While the U.S. Court of Appeals for the Ninth Circuit has
indicated that this fact is not dispositive, Elliotts, Inc. v.
Commissioner, supra at 1246, it is a relevant consideration,
Owensby & Kritikos, Inc. v. Commissioner, 819 F.2d 1315, 1324
(5th Cir. 1987), affg. T.C. Memo. 1985-267; Nor-Cal Adjusters v.
Commissioner, 503 F.2d 359, 362 (9th Cir. 1974), affg. T.C. Memo.
1971-200. Mr. Rosi testified that in 1988 or 1989 he advised
petitioner to pay dividends and that Messrs. Blazick and
Richter's response discouraged him from offering such advice
during the years in issue. Mr. Blazick, however, when asked why
petitioner did not pay dividends, testified that dividends were
not paid "Because Mr. Rosi prepared a procedure for us to follow
and we did."
Third, Mr. Rosi's implementation of the plan had the effect
of arbitrarily increasing allocations above the amounts the plan
authorized. This occurred in 1990 and 1991 when Mr. Rosi
utilized industry average gross profit margins lower than those
published in the Survey, and in 1992 when Mr. Rosi reduced the
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bad debts adjustment to Mr. Blazick's 1992 allocation. Mr. Rosi
offered no explanation for these apparent manipulations.
Finally, the most persuasive evidence of petitioner's lack
of compensatory intent is the plan itself. Consistent with the
existence of disguised dividends, the plan applied only to
petitioner's shareholders, Messrs. Blazick and Richter, and
payments were expressly calculated with reference to their
proportion of stock ownership. See Elliotts, Inc. v.
Commissioner, supra at 1246-1247 & nn. 4, 7. Moreover, the plan
does not use the value of services rendered as the basis for
calculating the amount of compensation, but merely distributes
excess profits to Messrs. Blazick and Richter.
Generally, incentive compensation plans are designed to
increase the compensation to employees by some fraction of the
benefit the corporation derives from the employees' efforts. See
Elliotts, Inc. v. Commissioner, supra at 1248 (stating that
"Incentive payment plans are designed to encourage and compensate
that extra effort and dedication which can be so valuable to a
corporation."); cf. Kennedy v. Commissioner, 671 F.2d 167 (6th
Cir. 1982), revg. 72 T.C. 793 (1979) (concerning incentive
compensation equal to 52 percent of net profits); PMT, Inc. v.
Commissioner, T.C. Memo. 1996-303 (concerning incentive
compensation equal to 10 percent of the increase in sales over
the previous year's sales). As the benefit to the corporation
increases, the compensation to the employee increases.
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Dividends, on the other hand, are merely distributions of excess
earnings to shareholders in proportion to their stock holdings.
Petitioner's plan provides that every dollar of gross
profits in excess of the hypothetical gross profit goes directly
to Messrs. Blazick and Richter while petitioner receives nothing.
The allocations are measured by the amount of petitioner's excess
gross profits and not by the value of Messrs. Blazick's and
Richter's contributions to petitioner. We also note that the
adjustments (i.e., relating to bad debts, inventory spoilage,
production rerun costs, and inventory shortages) made to the
allocations merely reduce the distributions to Messrs. Blazick
and Richter without direct relation to the value of their
services.
Accordingly, we conclude that the plan allocations were not
made with compensatory intent and thus did not constitute
compensation for services. As a result, we sustain respondent's
determination for each year.
II. Negligence Penalty
Section 6662(a) imposes an accuracy-related penalty in an
amount equal to 20 percent of the portion of any underpayment to
which the section applies. The section applies to, among other
items, the portion of an underpayment attributable to negligence
or disregard of rules or regulations. Sec. 6662(b)(1).
Negligence has been defined as the lack of due care or failure to
do what a reasonable and ordinarily prudent person would do under
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the circumstances. Neely v. Commissioner, 85 T.C. 934, 947
(1985). It includes the failure to make a reasonable attempt to
comply with the Internal Revenue Code. Sec. 6662(c). In
determining whether a corporation is liable for the negligence
penalty, the acts of officers on behalf of the corporation are
imputed to the corporation. DiLeo v. Commissioner, 96 T.C. 858,
875 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Auerbach Shoe Co.
v. Commissioner, 21 T.C. 191, 194 (1953), affd. 216 F.2d 693 (1st
Cir. 1954); Ibabao Med. Corp. v. Commissioner, T.C. Memo. 1988-
285.
We conclude that petitioner failed to exercise ordinary
care. The record establishes that the plan was both designed and
manipulated to direct the flow of corporate earnings to Messrs.
Blazick and Richter and to disguise such payments as
compensation.
We have considered all other arguments made by the parties
and found them to be either irrelevant or without merit.
To reflect the foregoing,
Decision will be entered
for respondent.