Computervision International Corp. - Page 52

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          in Sun Microsystems, Inc. v. Commissioner, supra, that is,                  
          considering all the facts and circumstances of the transaction              
          between Sun and CV, is also appropriate in resolving the issue              
          presented in the instant case.16                                            
               We note initially that an allowance otherwise constituting a           
          trade discount should not be treated differently for tax purposes           
          simply because it takes the form of property that may ordinarily            


          16                                                                          
               Petitioners have objected, solely on grounds of relevance,             
          to the admission of certain stipulations and exhibits concerning            
          the transaction between Sun and CV that occasioned CV’s                     
          acquisition of the second warrant.  Petitioners, however, rely on           
          certain of the stipulations and exhibits in their proposed                  
          findings of fact, and we deem petitioners to have conceded that             
          those stipulations and exhibits are relevant to the instant case.           
          We consider the remainder of the stipulations and exhibits                  
          relevant to the instant case because our decision as to whether             
          the second warrant constitutes a trade discount or a capital                
          asset must be based on all the facts and circumstances concerning           
          the second warrant.  Fed. R. Evid. 401.  Moreover, even if the              
          stipulations and exhibits do not bear directly on the matters in            
          dispute herein, we find the stipulations to be admissible as                
          background evidence aiding our understanding of those matters,              
          and concerning which we have wide discretion in admitting.                  
          United States v. Blackwell, 853 F.2d 86, 88 (2d Cir. 1988);                 
          United States v. Daly, 842 F.2d 1380, 1388 (2d Cir. 1988).                  
               Respondent objects to petitioner’s offer of respondent’s               
          trial memorandum submitted in Sun Microsystems, Inc. v.                     
          Commissioner, T.C. Memo. 1993-467, on the grounds that it is                
          irrelevant to the instant case.  However, for the same reasons              
          that we admitted the stipulations and exhibits referred to above,           
          we admit the trial memorandum.                                              
               Respondent also objects to petitioners’ offer of an expert             
          report submitted by respondent in Sun Microsystems, Inc. v.                 
          Commissioner, supra, on the grounds that the report is                      
          irrelevant, hearsay, and constitutes opinion evidence offered               
          without compliance with Rule 143.  We declined to admit the                 
          report into evidence in Sun Microsystems, Inc. v. Commissioner,             
          supra, because we found it, inter alia, argumentative and                   
          irrelevant, and we decline to admit it in the instant case.                 




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