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had with Mr. Davis, whether or not the activities giving rise to
payment were covered by the written agreements. Mr. Davis
determined how petitioner could use the funds to best promote P&G
products, and petitioner decided if it would accept the terms of
Mr. Davis' offer.
With respect to advertising activities petitioner could
perform to become entitled to withdraw funds from the promotional
accounts, Mr. Davis would inform petitioner that he was offering
an advertising program to promote certain P&G products and the
terms of the offer. After providing the advertising, petitioner
would then deduct the moneys to which it was entitled under the
terms of Mr. Davis' offer from the P&G promotional accounts. To
validate the deduction from the P&G promotional accounts,
petitioner provided Mr. Davis with proof of performance, e.g., a
copy of an advertisement. Mr. Davis also used promotional
account funds to make cash payments to petitioner's member stores
at petitioner's annual food show.
Under the Ajax Line Special Event Merchandising Contract and
the Special Event Merchandising Contract with Colgate (Colgate
agreements), Colgate agreed to create a promotional account for
special event promotional services. The promotional account was
infused with capital every 6 months, and the amount contributed
was based on a fixed price per case of specified products shipped
to petitioner during the same period for the prior year. The
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Last modified: May 25, 2011