Hachette USA, Inc., As Successor to Hachette Publications, Inc. and Curtis Circulation Co., Subsidiary - Page 13

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          a number of commentators had urged the Secretary to omit the cost           
          of goods sold adjustment.  The provision was retained, the                  
          preamble explains, because the language of section 458(a)                   
          indicates that the exclusion is determined on the basis of gross            
          income, which for a seller of merchandise is defined in section             
          1.61-3(a), Income Tax Regs., as sales revenue less cost of goods            
          sold, and because, in the Secretary's opinion, the cost of goods            
          sold adjustment is necessary to clearly reflect income in                   
          accordance with section 446(b).  57 Fed. Reg. 38595.                        
                                     Discussion                                       
          Congressional Intent With Respect to Cost Issues                            
               We must decide whether the correlative cost of goods sold              
          adjustment required by the Regulation contravenes the statute.              
          "Under the test articulated in Chevron U.S.A. v. Natural Res.               
          Def. Council, 467 U.S. 837 (1984), the first question a court               
          must ask when reviewing an agency's construction of a statute is            
          whether Congress has directly spoken to the precise question at             
          issue and has expressed a clear intent as to its resolution."               
          Western Natl. Mut. Ins. Co. v. Commissioner, 102 T.C. 338, 359              
          (1994), affd.     F.3d     (8th Cir., Sept. 1, 1995); NationsBank           
          v. Variable Annuity Life Ins. Co., 513 U.S.    ,    , 115 S. Ct.            
          810, 813-814 (1995).                                                        
               Petitioners contend that Congress has directly spoken to the           
          precise question at issue in these cases.  Petitioners' main                
          argument runs as follows.  Section 458(a) provides for an                   




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