ASAT, Inc. - Page 31

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          C.   Abuse of Discretion Issue                                              
               1.   Standard of Proof                                                 
               The standard of review of respondent's determination under             
          section 6038A(e)(3) is liberal.  Whereas the word "discretion"              
          does not appear in section 482, when the noncompliance penalty of           
          section 6038A(e)(3) applies, "the amount of the deduction * * *             
          and the cost * * * of any property * * * shall be the amount                
          determined by the Secretary in the Secretary's sole discretion              
          from the Secretary's own knowledge or from such information as              
          the Secretary may obtain through testimony or otherwise."                   
          (Emphasis added.)  The conference committee report offers                   
          guidance to a court reviewing respondent's determination under              
          section 6038A(e)(3):                                                        
                    The conferees intend that a taxpayer seeking                      
               judicial review of the exercise of the Secretary's sole                
               discretion under the noncompliance rules shall bear the                
               burden of proof by clear and convincing evidence that                  
               the Secretary abused that discretion.  The conferees do                
               not intend to foreclose a court from overturning a                     
               determination by the Secretary that was proven (by                     
               clear and convincing evidence) either to have been made                
               with improper motive, or to have been clearly erroneous                
               by reference to all reasonably credible interpretations                
               or assumptions of facts.  On the other hand, the                       
               conferees do not expect a court to overturn a                          
               determination unless it could do so even after                         
               accepting as true all allegations and inferences that                  
               may support the Secretary's position.  [H. Conf. Rept.                 
               101-386, at 594 (1989).]                                               
               The conference committee report also states:                           
                    Under the conference agreement, in cases of                       
               noncompliance, the amount of any deduction for any                     
               amount paid or incurred to the related party by the                    
               reporting corporation, or the cost of property                         




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