- 47 - 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 penaltyPage: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
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