- 40 - proof or the other party has established a prima facie case. Id. Petitioner has the burden of proof and has not made a prima facie showing of the facts which it wishes to establish by adverse inference. Petitioner knew the identity of the IRS economist in ample time to call him as a witness but failed to do so. Under these circumstances we shall not draw an adverse inference against respondent. Petitioner argues that Ms. Hamilton erroneously relied on MANA surveys, which in petitioner's view did not involve comparable companies or transactions. Although petitioner is not in the manufacturing business, it performs a service similar to a manufacturer's commissioned agent. Taking into account the materials within respondent's possession at the time of making the section 6038A(e)(3) determination, we are not persuaded that respondent's reliance on the MANA survey was misplaced. Petitioner argues that the "what if" scenario shows that Ms. Hamilton backed into the 15-percent gross profit spread and that her suggestion that a 10-percent spread would ensure a profit shows that the determination was arbitrary. Ms. Hamilton did calculate the minimum spread necessary for petitioner to show a profit. The MANA Research Bulletin states: Typically, an agent and a manufacturer will offer what they feel is a fair rate for the work to be done when they negotiate their contract. * * * But, in general, fair is a figure whereby both parties can make money and where both are pleased with the arrangement. * * * * * * * * * *Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
Last modified: May 25, 2011