- 33 - Foretravel's Incentive Program Petitioner argues that the incentive payments to the dealerships are excludable from gross income, or in the alternative, are deductible as ordinary and necessary business expenses. Respondent argues that in substance petitioner's incentive payments were contributions to capital and were not reductions in sales prices or deductible under section 162. We agree with petitioner. Petitioner concedes that it erroneously claimed the incentives as bad debts for both years in issue. This fact is not fatal to petitioner's claim that the payments were actually incentive payments where, as here, petitioner provides thorough and credible evidence showing that the payments were mistakenly reported as bad debts. We look at the true nature of the payments despite the labels and bookkeeping entries used by petitioner. B. Forman Co. v. Commissioner, 453 F.2d 1144, 1160 (2d Cir. 1972) affg. in part, revg. in part and remanding 54 T.C. 912 (1970); Burnett v. Commissioner, 356 F.2d 755 (5th Cir. 1966), remanding 42 T.C. 9 (1964). Respondent argues that the incentive payments, or rebates, are not excludable from petitioner's gross income or deductible expenses because the payments were unrelated to performance, and there was no set sales volume that the dealer had to meet in order to qualify for a rebate. Respondent, citing Sun Microsystems, Inc. v. Commissioner, T.C. Memo. 1993-467, contendsPage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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