Employee Compensation Deduction Tax Research Memorandum

Mr. Jones, President

From: Tax Accountant, CPA

Tax Treatment of Employee Compensation in Business Deductions

Facts

Mr. Jones is the President of a corporation owned by him and members of his family. Mr. Jones was paid $48,000 in salary and the corporation paid $12,000 in a pension plan contribution on Mr. Jones's behalf for the tax year. The IRS Agent claims that both the salary paid to Mr. Jones and the pension plan contribution must be taken into account to determine whether the total compensation is reasonable in amount. The corporation wants to know if the pension plan contribution must be taken into account in determining the total compensation reasonableness to Mr. Jones.

Issue

The issue is whether the pension plan contribution paid by the corporation must be included with Mr. Jones salary for the tax year to determine whether the total compensation was reasonable under the tax codes.

Rule

The total compensation includes salary and any other compensation for personal services actually rendered. This would include salary, benefits, such as vacation, sick leave, and retirement benefits, stock options, bonuses, and any other benefits the corporation provides for the employee, whether it is personal travel expenses, birthday awards, etc. Brewer Quality Holmes, Inc. v. Commissioner, No. 03-61040, (5th Cir. 2004) adjusted the deduction based on nine factors from Owensby & Kritikos, Inc. v. Comr., T.C. Memo. 2001-262. The nine factors included employee qualifications, nature, extent, and scope of employee's work, size and complexity of the business, comparison of salaries paid with gross and net income, economic conditions, comparison of salaries with distributions to stockholders, rates of compensation for comparable positions with comparable concerns, salary policy as to all employees,...

The deduction was adjusted 5% in favor of Brewer Quality Holmes for retirement benefits not being provided to the employee.
Analysis

In the Internal Revenue Code 162 (a)(1), the clause "for salaries or other compensation for personal services actually rendered" forms the basis for law of reasonable compensation. The foundational issues include (1) the intent test (whether payment is in fact made for services rendered) and (2) the amount test (whether the amount of payment is reasonable). Tax courts generally do not consider whether a compensatory purpose (intent) exists unless there is evidence of purported compensation payments exists, although reasonable in amount, were in fact disguised dividends. If there is evidence of disguised dividends, the corporation must separately satisfy the reasonable test and the compensatory intent test.

In Section 1.162-7 (a) it states that included among ordinary and necessary expense paid or incurred in carrying on any trade or business a reasonable allowance for salary and other compensation for personal services actually rendered. The test of deductibility of compensation is whether they are reasonable and are in fact purely for services. The test for (a) may be illustrated as follows: (1) any amount paid in the form of compensation as the purchase price of services, (2) the form or method of fixing compensation is not decisive as to deductibility, and (3) in any event the allowance for the compensation paid may not exceed what is reasonable under all the circumstances. It is, in general, just to assume that reasonable and true compensation is only such amount as would ordinarily be paid for like services by like enterprises under like circumstances.

When a case involves a closely held corporation with the controlling shareholders setting their own level of compensation as employee, the reasonableness of the compensation is subject to close…