Foretravel, Inc. - Page 33

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            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, contends                              




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