ASAT, Inc. - Page 40

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          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. * * *                 
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