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disbursements at petitioner's annual food show. Furthermore,
although the Colgate agreements indicate that the promotional
funds available for a particular period must be earned during
that period, petitioner carried a balance in its Colgate
promotional accounts from one period to the next.
Petitioner also submitted three promotional account
agreements between petitioner and P&G. The three written
agreements between petitioner and P&G indicate that petitioner
can withdraw funds from P&G's promotional accounts for performing
certain enumerated activities. However, petitioner was
reimbursed for performing promotional activities that P&G's
representative offered to petitioner, even if such activities
were not specifically addressed in the agreements.
Both the Colgate and the P&G agreements are helpful in
determining the substance of the agreements between petitioner
and these two vendors. However, the facts and circumstances of
the case indicate that these agreements did not address the
entire arrangement between the parties. Rather, the facts and
circumstances indicate that the vendors could authorize payment
from the promotional accounts for promotional activities not
addressed by the agreements. For example, funds were withdrawn
from the promotional accounts to make cash payments at
petitioner's annual food show, even though the agreements did not
specifically address such payments.
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