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circumstances of industry competition and individual
customer order specifications, there is substantial
economic justification for the rate used by Petitioner
and reported on its income tax return. * * *
Petitioner further argues that its C.P.A. used "boiler plate"
language regarding intercompany transaction recordkeeping
requirements. Finally, petitioner argues that it gave its tax
return preparer the information necessary to prepare its return.
Unfortunately for petitioner, the "evidenced adduced at bar"
does not demonstrate that the industry average commission rate
was 5 percent. Petitioner confuses the self-serving, unsupported
testimony of its officer with proof. Saying something is so does
not make it so. Petitioner had no records whatsoever to document
how it determined the value of ASAT, Ltd.'s services, a
requirement under section 6038A. Petitioner has not shown that
it attempted to comply with the recordkeeping requirements of the
statute. Petitioner cannot escape the penalty by blaming its tax
return preparer; petitioner's tax return preparer warned
petitioner that intercompany transactions require documentation.
That this warning was "boiler plate" does not make it any less
true. We hold that petitioner has failed to prove that it was
not negligent on the section 6038A issues.
Petitioner has offered no evidence that it was not negligent
in deducting the consulting fees and does not address the issue
on brief. Respondent's determination of the applicable penalty
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