- 32 - transferred between such persons, shall be determined by the Secretary in the Secretary's sole discretion, based on the Secretary's own knowledge or from such information as the Secretary may choose to obtain.* * * The conferees wish to clarify that the exercise of the Secretary's sole discretion to establish allowable amounts of deductions and the cost of goods sold in the event of noncompliance shall be subject only to limited judicial review. * * * In addition, the conferees do not expect a court to overturn a determination on grounds that the Secretary might have sought to obtain additional information but failed to do so. [Id. at 593-594.] The standard of proof is not identical to that in a section 482 case--proving that the Commissioner's allocations are arbitrary, capricious, or unreasonable. Rather, the standard of proof under section 6038A(e)(3) requires petitioner to show by clear and convincing evidence and without reference to information not in respondent's possession or knowledge when the determination was made, that respondent's determination was made with an improper motive or is clearly erroneous in light of all reasonably credible interpretations or assumptions of facts. Petitioner has not argued improper motive on the Secretary's part. The parties do not disagree on what information was in respondent's possession when she issued the notice of deficiency and determined that petitioner's cost of goods sold and net operating loss should be adjusted downward. Based on that information, and that information alone, we must decide if respondent abused her discretion, applying the standard set forth above, in determining the deficiency under section 6038A.Page: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Next
Last modified: May 25, 2011