* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60381

(Summary Calendar)

DONALD PALMER COMPANY, INCORPORATED

Petitioner

- Appellant,

versus

COMMISSIONER OF INTERNAL REVENUE

Respondent - Appellee.

Appeal from the United States Tax Court

(24901-92)

April 1, 1996

Before WIENER, PARKER and DENNIS Circuit Judges.

PER CURIAM: *

In this federal income tax case, Petitioner -Appellant David2

Palmer Company, Inc. (Petitioner) appeals a decision by the United

States Tax Court that a portion of the compensation paid to its

president a nd sole shareholder was unreasonable and thus

nondeductible as an expense of the corporation. Finding no error,

we affirm.

I

FACTS AND PROCEEDINGS

Petitioner is a Louisiana corporation engaged in the business

of buying and selling bags and packaging materials. Incorporated

in 1979 by David Palmer with a capital contribution of $5,000,

Petitioner has consistently grossed several million dollars a year

in sales. Palmer S Q who has worked in the plastic packaging business

for most of his life SQ is Petitioner's sole stockholder, as well as

its president and only officer. Palmer is also the one responsible

for Petitioner's success: He works approximately seventy hours per

week, takes little time off, personally generates almost all of

Petitioner's sales, and manages its daily operations.

In addition to Palmer, Petitioner employs a secretary, a

bookkeeper, and a cleaning person. Petitioner also employed a

salesperson in 1985 and again in 1987. In each of those years,

howev e r, the individual employed accounted for only an

insignificant portion of the total sales and both were discharged

after a short period of employment.

For the tax year ended June 30, 1990 (1990), Petitioner paid

Palmer compensation of $1,259,979, consisting of $441,446 in salary1 These pension plan contributions were made during the tax

years ended June 30, 1982 through June 30, 1986 in the following

respective amounts: $23,239; $90,675; $141,750; $114,300; and

$106,184.

3 and a bonus of $818,533. This appeal concerns the determination,

for tax purposes, of the maximum amount of compensation that is

reasonable for Palmer's services in 1990.

The following schedule reflects Petitioner's gross receipts,

gross profit, officer's compensation (Palmer's compensation), and

taxable income for most of its history.

Tax

Year Gross Gross Palmer's Taxable

Ended Receipts Profit Compensation Income

6/30/82 $2,469,535 $639,742 $150,000 $197,207

6/30/83 2,602,522 707,338 300,000 99,092

6/30/84 3,112,563 693,348 300,000 46,854

6/30/85 3,532,714 801,997 300,000 87,697

6/30/86 2,948,626 666,139 275,000 76,552

6/30/87 3,182,588 725,687 435,000 121,080

6/30/88 3,395,436 708,678 350,000 150,279

6/30/89 4,068,042 801,490 390,000 262,126

6/30/90 4,017,352 1,137,182 1,259,979 (339,417)

6/30/91 4,057,664 884,969 617,113 17,384

In addition to the compensation listed above, Petitioner also made

pension plan contributions for the benefit of Palmer during some of

these years. 1 Petitioner has never paid dividends on its stock.

In 1988, Petitioner and Palmer entered into a Deferred

Compensation Agreement (Agreement) which provided that Palmer would

receive $16,666 per month for ten years. These payments were to

begin on the later of the date on which Palmer (1) attained the age4

of sixty-five years or (2) actually retired. Although no deduction

was taken, Petitioner's federal income ta x returns reflected the

accrual of this liability, as follows:

Tax Deferred Deferred

Year Compensation Compensation

Ended Expense Liability

6/30/88 $ 208,013 $ 208,013

6/30/89 208,012 416,025

6/30/90 208,012 624,038

6/30/91 208,013 832,050

The Agreement further provided that Petitioner had no duty to set

aside funds for this obligation owed to Palmer, and payments have

never been made to Palmer pursuant to the Agreement.

Foll o wing an examination of Petitioner's 1990 income tax

return, the Internal Revenue Service (IRS) disallowed the deduction

for the entire $818,533 bonus paid to Palmer, insisting that his

salary of $441,446 i s reasonable compensation for his 1990

services. Petitioner sought relief in Tax Court. After a trial on

this issue, the Tax Court found that, in addition to Palmer's

salary, $220,723 of the bonus SQ an amou nt equal to one-half of

Palmer's salary SQ is reasonable compensati o n and thus deductible.

Petitioner now appeals to us, arguing that the Tax Court erred

in its determination of reasonable compensation, as well as in

disposing of two evidentiary issues related to this determination.

II2 O w ensby & Kritikos, Inc. v. Commissioner , 819 F.2d 1315,

1323 (5th Cir. 1987).

3 U nited States v. United States Gypsum Co. , 333 U.S. 364,

395, 68 S. Ct. 525, 542, 92 L.Ed. 746 (1948).

4 EEOC v. Manville Sales Corp. , 27 F.3d 1089, 1092-93 (5th

Cir. 1994), cert. denied

,

__ U.S.

__, 115 S. Ct. 1252, 131 L.Ed.2d

133 (1995).

5 E dmonds v. Illinois Cent. Gulf R.R. , 910 F.2d 1284, 1287

(5th Cir. 1990).

6 26 U.S.C. § 162(a)(1).

5 ANALYSIS

A. S TANDARD OF R EVIEW

The determination of what is reasonable compensation is a

question of fact that is reviewed under th e clearly erroneous

standard. 2 A finding is clearly erroneous when "although there is

evidence to support it, the reviewing court is left with the

definite and firm conviction that a mist ake has been committed." 3

A trial court's admission of evidence is reviewed for abuse of

discretion. 4 Challenges to rulings on expert testimony are

reviewed under the manifestly erroneous standard. 5

B. R EASONABLE C OMPENSATION

A taxpayer is permitted to deduct "a reasonable allowance for

salaries or other co m pensation for personal services actually

rendered." 6 The regulations explain that bonuses paid to employees

are deducti ble "when such payments are made in good faith and as

additional compensation for servi c es actually rendered by the

empl oyees, provided such payments, when added to the stipulated7 Treas. Reg. § 1.162-9.

8 R utter v. Commissioner

, 853 F.2d 1 267, 1271 (5th Cir.

1988).

9 I d. at 1271; accord Owensby & Kritikos, Inc. , 819 F.2d at

1323.

10 Owensby & Kritikos, Inc. , 819 F.2d at 1323.

11 Rutter , 853 F.2d at 1271.

12 Owensby & Kritikos, Inc. , 819 F.2d at 1324.

6 salaries, do not exceed a reasonable compensation for the services

rendered." 7

The amount of compensation that is reasonable depends on the

facts and circumstances of each case. 8 When making this inquiry,

a court must consider a number of factors, including:

(1) the employees qualifications;

(2) the nature, extent, and scope of the employee's work;

(3) the size and complexities of the business;

(4) a comparison of salaries paid with gross income and net

income;

(5) the prevailing general economic conditions;

(6) comparison of salaries with distributions to

stockholders;

(7) the prevailing rates of compensation for comparable

positions in comparable concerns;

(8) the salary policy of the taxpayer as to all employees;

(9) in the case of small corporations with a limited number

of of ficers the amount of compensation paid to the

particular employee in previous years. 9

No single factor is determinative. 10 Rather, the trial court must

consider and weigh the totality of the facts and circumstances in

a particular case when determining reasonable compensation. 11

The taxpayer has the burden to show that it is entitled to a

larger compensation deduction than that allowed by the IRS. 1213 Id.

1 4 S ee Banks v. Commissioner

, 322 F.2 d 530, 537 (8th Cir.

1963).

7 Moreover, in a situation in which shareholders of a closely held

corporation set their own level of compensation, the reasonableness

of this compensation is subject to close scrutiny. 13

1. Termination of Deferred Compensation Agreement

At trial, Palmer testified that the A greement had been

terminated in 1990 to make the corporation more attractive to

potential buyer s. Thus, Petitioner contends, much of the bonus

paid to Palmer in 1990 was not compen sation earned in that year,

but rather was payment for deferred compensation earned in 1988 and

1989 but lost when the Agreement was terminated. Accordingly,

argues Petitioner, the reasonableness of this compensation must be

analyzed with regard to the facts and circumstances of the years in

which it was actually earned. As the only testimony regarding the

purported termination of the Agreement was Palmer's uncontradicted

testimony, Petitioner insists that the Tax Court's finding that the

Agreement had not been terminated in 1990 is clearly erroneous

beca use a court may not arbitrarily disregard testimony that is

competent, relevant, credible, and uncontradicted. 14

The only testimony on this issue was Palmer's. Petitioner

offered no other evidence doc umenting the alleged termination of

the Agreement in 1990. Moreover, Petitioner concedes that its 1990

federal income tax return did not reflect a termination of the1 5 S ee Elliots, Inc. v. Commissioner

, 716 F.2d 1241, 1245 (9th

Cir. 1983).

8 Agreement . In fact, Petitioner's subsequent income tax return

(1991) showed an increase in the deferred compensation liability.

Petitioner' s sole effort to explain this incongruence is the

contention that the entries on the tax returns were simply made in

error. The Tax Court's opinion, however, makes clear that it did

not find this explanation persuasive. We therefore conclude that

the Tax Court did not arbitrarily disregard Palmer's testimony.

Petitioner also contends that the payment of Palmer's bonus

left it financially unable to meet its obligation under the

Agreement. Thus, argues Petitioner, this payment supports its

position that the Agreement was in fact terminated in 1990. The

terms of the Agreement, however, did not require any funds to be

set aside for this obligation. Thus, we are unconvinced that the

payment of this bonus is probative that the Agreement had been in

fact terminated in 1990. We therefore conclude that the Tax Court

did not clearly err in finding that the Agreement was not

terminated in 1990.

2. Return on Investment of Hypothetical Investor

In its analysis, the Tax Court also noted that an important

factor in determining reasonable compensation is whether a

hypothetical investor would have been willing to p ay Palmer the

same amount of compensation that he was paid by Petitioner. 15 The

corporation's rate of return on equity is relevant in making this16 Id.

17 S ee B ORIS I. B ITTKER & J AMES S. E USTICE

, F EDERAL I NCOME T AXATION OF

C ORPORATIONS AND S HAREHOLDERS ¶ 8.04, at 8-31 (6th ed. 1994).

1 8 S ee 26 U.S.C. §§ 301(c), 316(a); see also Mazzocchi Bus Co.

v. Commissioner , 14 F.3d 923, 927 (3rd Cir. 1994).

9 assessment. 16 As the large bonus paid to Palmer resulted in

negative retained earnings, a taxable loss, and a negative return

on investment for its shareholders for 1990, the Tax Court

concluded that an independent investor would not have been pleased

with his investment if he had to compensate Palmer so handsomely.

Petitioner challenges the Tax Court's analysis by contending

that it had positive "earnings and profits." Petitioner insists

that the liability for accrued deferred compensation is in the

nature of a reserve for future expenses and thus would not reduce

its earnings and profits. 17

This argument misses the mark. Earnings and profits is a tax

concept that generally relates to the determination of whether a

distribution from a c orporation to its shareholders is properly

treated as a dividend or a return of capital. 18 That earnings and

profits may have been positive, however, in no way impugns the Tax

Court's analysis regarding a hypothetical investor's return on

investment.

Petit ioner also insists that a hypothetical investor would

have paid Palmer compensation equal to what he actu ally received

because otherwise Palmer could have quit. As Petitioner's earnings19 Owensby & Kritikos, Inc. , 819 F.2d at 1325.

10 depend almost exclusively on the services of Palmer and not on

invested capital, a decision by Palmer to quit would have rendered

the corporation virtually worthless.

Althoug h these facts might support a high level of

compensation for Palmer's services, we have made clear that "limits

to reasonable compensation exist even for the mo st valuable

employees." 19 We therefore are unconvinced that the Tax Court's

analysis regarding a hypothetical investor is clearly erroneous.

3. Application of Factors

Finally, Petitioner argues that the Tax Court failed to

consider the following factors: the employee's qualifications; the

nature, extent, and scope of the employee's work; the size and

complexities of the business; and Petitioner's financial condition.

P etitioner maintains that these factors S Q as well as the others,

which it concedes were considered SQ favor its position that all of

Palmer's compensation is reasonable. Petitioner therefore

maintains that the Tax Court's determination of reasonable

compensation for Palmer is clearly erroneous. We disagree.

The Tax Court specifically recognized Palmer's many

contributions to Petitioner, including that he worked long hours,

generated almost all of the sales, and managed the daily

operations. The Tax Court also considered Palmer's compensation in

prior years, as well as the relationship of such compensation to11

Petitioner's sales and gross profit. Although some of the relevant

factors might favor Petitioner's position , the fact that the Tax

Court did not conclude that the entire bonus was reasonable

compensation does not mean that these factors were ignored. To the

contrary, these factors appear to have been not only considered,

but also accorded substantial weight in determining that a bonus

equal to fifty percent of Palmer's salary would be reasonable.

Moreover, the amount of compensation determined by the Tax Court to

be reasonable is consistent with the historical relationship

between Palmer's compensation and Petitioner's performance,

reflecting the fact that Petitioner had one of its best years in

1990. Our review of the record convinces us that the Tax Court

properly considered all of the relevant factors and that its

determination of reasonable compensation for Palmer's services is

not clearly erroneous.

C. A DMISSION OF E MPLOYMENT C ONTRACTS I NTO E VIDENCE

Petitioner also contends that the trial court abused its

discretion by admitting into evidence the employment contracts of

two former salespersons who were employed by Petitioner for short

periods of time. Petitioner explains that these two individuals

performed different functions than Palmer and gene rated only an

insignificant amount of the total sales. Petitioner maintains

that, as the compensation of these two salespersons has little

bearing on the issue of reasonable compensation for P almer, the

admission of this evidence was an abuse of disc retion. Again we20 Rutter v. Commissioner , 853 F.2d 1267, 1271 (5th Cir.

1988).

2 1 O wensby & Kritikos, Inc . v. Commissioner , 819 F.2d 1315,

1329 (5th Cir. 1987).

2 2 Rule 702 of the Federal Rules of Evidence provides that

"[i]f scientific, technical , or other specialized knowledge will

assist the trier of fact to understand the evidence or determine a

fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify thereto in

the form of an opinion or otherwise."

12 disagree.

One of the factors to be considered in determining reasonable

compensation is "the salary policy of the taxpayer as to all

employees." 2 0 Moreover, comparison of the compensation paid to

shareholder-employees with that paid to nonshareholder-employees is

relevant. 21 Thus, even though the employment contracts with these

nonshareholder-salespersons might not be entitled to great weight,

they cannot be said to be irrelevant. We therefore conclude that

the Tax Court did not abuse its discretion by admitting these

employment contracts into evidence. We note gratuitously that the

Tax Court appears to have accorded little if any significance to

these contracts, and Petitioner has failed to show that it was

prejudiced by their admission.

D. E XPERT W ITNESS

Petitioner also insists that the Tax Court's decision not to

qualify Harold Mollere as an expert witness is manifest error. 22

Petitioner maintains that Mollere is qualified to be an expert in

this case , given his experience as a practicing certified public13

accountant for thirty-eight years, during which time he reviewed

hundreds of federal income tax returns annually for businesses and

corporations, and advised clients on their compensation in

connection with their year-end planning. Petitioner goes further,

suggesting that the Tax Court disqualified Mollere because the IRS

had no expert of its own rather than because of Mollere's

qualifications.

We are unpersuaded. During voir dire, Mollere admitted that

h e had not had any specific training in the field of executiv e

compensation, and that he had never been retained to evaluate a

company's executive compe nsation policy. In addition, the Tax

Court noted that Mollere's report was unhelpful as it merely

summarized his view of the evidence and did not provide sufficient

i nformation to make an intelligent evaluation of his conclusion

that all of Pal mer's compensation is reasonable. Furthermore,

Petitioner has absolutely no support for its speculation that the

Tax Court's ruling was based on the fact that the IRS had no expert

witness of its own. Under these circumstances, we conclude that

the T ax Court did not commit manifest error by deciding not to

qualify Mollere as an expert.

III

CONCLUSION

Based on the foregoing reasons, the judgment of the Tax Court is

AFFIRMED.