ASAT, Inc. - Page 47

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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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