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@043 CHAP 8
┌─────────────────────────────────────────┐
│ "UNREASONABLE" COMPENSATION PROBLEMS │
└─────────────────────────────────────────┘
"Behind every great fortune there is a crime."
-- Honore de Balzac
Some closely-held C corporations try to escape from being caught be-
tween a rock and a hard place (between double taxation if dividends
are paid, and accumulated earnings or personal holding company penalty
tax if income is accumulated in the corporation) by raising the com-
pensation paid to the employee-owners (or their relatives on the pay-
roll) to levels high enough to zero out the corporate income.
This works beautifully until the IRS audits the corporation and decides
that the compensation paid is unreasonably high, and disallows part of
it. In that case, unless one can convince the IRS (or a court) other-
wise, the excess compensation is treated as a constructive dividend and
is still fully taxable to the recipient, but not deductible to the
corporation. This can also have other disastrous side effects, such
as disqualifying a pension or profit sharing plan, where the contribu-
tions to the plan by the corporation were based on the "unreasonable"
compensation, rather than the lesser amount the IRS allows as a com-
pensation deduction.
S corporations generally do not have to worry about "unreasonable
compensation," although if compensation paid is too low, the IRS
may impute a higher level of salary expense, which reduces an S cor-
poration's net income, and is thus a wash, overall. The IRS will some-
times make such an adjustment in the case of an S corporation where a
parent who runs a business has given stock to his or her children and
takes out little or no salary so that the corporation will have more
taxable income to be split with the children. Or the IRS may argue
that compensation is too low where an employee-owner of an S corpora-
tion takes little or no salary in order to avoid FICA and unemployment
taxes. (There will be no such payroll taxes if he or she takes all of
the S corporation's income out in the form of dividends, rather than
compensation.)
A similar re-allocation of partnership income can occur in a "family
partnership" where there is an attempt to allocate partnership income
to children who have not earned it. Sole proprietors don't have to
worry about "unreasonable compensation" unless making payments of
salary or wages to family members who do not earn the compensation.