Hachette USA, Inc., As Successor to Hachette Publications, Inc. and Curtis Circulation Co., Subsidiary - Page 14

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          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 returned           




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