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Using this power to influence, petitioner caused the paint
department to purchase various chemical compounds from Besco. In
exchange, Besco paid petitioner certain amounts of money. This
is a classic kickback situation, and petitioner's attempt to
camouflage the payments as commissions must fail.
Both Tubre's and Kahn's testimony at trial is convincing.
Tubre described a series of events involving petitioner dating
back to the early 1970's. He testified that petitioner first
sought to promote Besco's products to customers other than ASI
but that this endeavor proved unsuccessful. Tubre further
testified that petitioner subsequently expressed interest in
receiving the kickback payments with respect to purchases ASI's
paint department made from Besco. Tubre also testified that
petitioner did not perform any activity on behalf of Besco during
the years at issue in exchange for the payments petitioner
received. Both Tubre and Kahn testified that the payments were
made to petitioner out of fear of losing business from ASI's
paint department. Tubre further testified that he alone
initiated and serviced Besco's accounts with ASI, both within and
without the paint department. Tubre also testified that he, on
behalf of Besco, lied to Balash, when he told her that the
payments to petitioner were in exchange for services performed by
petitioner with respect to non-ASI accounts. He also testified
that it was out of fear of losing Besco's account with ASI's
paint department that prompted him to lie to Balash.
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