The Cleveland Trencher Company - Page 13

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          have not used it as such.  Rule 146 permits us to consider                  
          materials relating to foreign law whether or not they are                   
          admissible in evidence.  Consequently, we will deny petitioner's            
          motion to strike the exhibit attached to respondent's brief that            
          contained references to Turkish law.  In any event, we conclude             
          nothing from respondent's information about Turkish law or our              
          own research that helps us to decide this case.                             
               Even if AA&H is an entity distinct from Mr. Aydin, such as a           
          partnership or corporation, petitioner must show that the                   
          disputed amount sought to be deducted could not have been paid to           
          Mr. Aydin, rather than to AA&H.  We have seen, supra pp. 3-4,               
          that the second of the two commission agreements between                    
          petitioner and AA&H provided for payment to AA&H or Mr. Aydin.              
          If the disputed amount could have been paid to Mr. Aydin, a cash            
          basis taxpayer related to petitioner under section 267(b), then             
          petitioner cannot take the deduction in the year at issue.  At              
          trial, Mr. Aydin admitted that the amount in controversy related            
          to both contracts with the Turkish Government and thus also to              
          the second commission agreement between petitioner and AA&H, and            
          that petitioner had to show that as of 1989 he no longer had the            
          right to receive the payments in question, but petitioner has not           
          done so.  As a result, petitioner's accrual of the deduction for            
          the unpaid commission must be disallowed under section 267(a)(2).           

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