Texasgulf Inc. and Subsidiaries, as Successor in Interest to Texasgulf Inc. and Subsidiaries - Page 26

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          the result here.  We need not decide whether nonrecoverable costs           
          are significant because we decide the case by considering whether           
          the processing allowance is likely to exceed nonrecoverable                 
          expenses under section 1.901-2(b)(4)(i)(B), Income Tax Regs.  The           
          question under section 1.901-2(b)(4)(i)(B), Income Tax Regs, is             
          not whether the nonrecoverable expenses are significant; it is              
          whether the processing allowance is likely to approximate or                
          exceed them.8                                                               
               5.   Conclusion                                                        
               Petitioner has shown that the processing allowance exceeded            
          nonrecoverable expenses both in the aggregate and for the vast              
          majority of OMT taxpayers.  We conclude that the OMT processing             
          allowance was likely to approximate or exceed the nonrecoverable            
          expenses for the years in issue.                                            
          D.   Respondent’s Contentions                                               
               Respondent contends that petitioner has not proven that the            
          OMT meets the requirements of section 1.901-2(b)(4)(i)(B), Income           
          Tax Regs., because, according to respondent, (1) this case is               
          governed by cases decided before the 1983 regulations applied,              


               8Similarly, we need not decide the parties’ dispute about              
          the concept of pit’s mouth value.  Respondent contends that the             
          OMT’s use of pit’s mouth value shows that no nexus exists between           
          the amount of the processing allowance and nonrecoverable                   
          expenses.  Sec. 1.901-2((b)(4)(i)(B), Income Tax Regs., requires            
          us to consider whether the processing allowance approximates or             
          exceeds nonrecoverable expenses, not whether there is a nexus               
          between the two.  See par. D-3, infra p. 33.                                




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