- 26 - 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.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: May 25, 2011