- 14 - election to exclude the income attributable to returned merchandise. "If the statute stopped there, the question of how to determine 'the income attributable to' the returned items of merchandise might well be a proper subject for further elaboration in regulations. The statute does not, however, stop there." Rather, in section 458(b)(6) it provides an explicit and unambiguous formula for determining the adjustment to income. The adjustment specified by Congress is the amount of the credit against sales price which the taxpayer is obligated to grant to the purchaser; the language of section 458(b)(6) leaves no room whatever for interpretation. Nevertheless, the regulations substitute their own formula for the formula specified by Congress. The formula for determining the "gross income exclusion" under section 1.458-1, Income Tax Regs., is the same as that for determining the statutory "amount excluded", "except as otherwise provided in paragraph (g)". Sec. 1.458-1(c), Income Tax Regs. (emphasis added). The offsetting cost adjustments required by paragraph (g) have the effect of "transform[ing] the 'amount excluded' from the amount of the credit given the retailers for returned items to an amount equal to the distributor's gross profit on those items." The Regulation does not validly interpret the statute; it changes the statute. Petitioners' argument succeeds in demonstrating that the net effect of the cost adjustments required by the Regulation is to reduce gross income by the amount of the gross profit on returnedPage: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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