Inverworld, Inc., et al. - Page 20

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          Court must determine the proper allocation of items based upon              
          the record.  See Eli Lilly & Co. v. Commissioner, supra;                    
          Sundstrand Corp. & Subs. v. Commissioner, supra.                            
               Accordingly, our task is to examine whether petitioners met            
          the arm's-length standard.  That standard is met by an arm's-               
          length charge.  Secs. 1.482-1(b), 1.482-2(b)(3), Income Tax Regs.           
          An arm's-length charge is defined as "the amount which was                  
          charged or would have been charged for the same or similar                  
          services in independent transactions with or between unrelated              
          parties under similar circumstances considering all relevant                
          facts."  Sec. 1.482-2(b)(3), Income Tax Regs.  Significantly, the           
          regulations do not inquire into or limit the allocation to the              
          taxpayer's actual earnings.  As we found in our prior opinion,              
          LTD's actual earnings include amounts which were charged to                 
          "related" or favored clients.6  Consequently, as LTD's actual               
          earnings include amounts that are less than arm's-length charges,           
          the arm's-length standard found in the section 482 regulations is           
          not limited by LTD's actual earnings.                                       



          6    Moreover, we conclude that, in any case, the record does not           
          establish LTD's "actual earnings" as to the Currency Fund and the           
          FEIM Fund from which to make a comparison.  According to the                
          Deloitte workpapers, management fees as to both the Currency Fund           
          and the FEIM Fund were charged by LTD against the funds                     
          themselves and were placed in the general category of Management            
          Fees, not in the individual income categories for the Currency              
          Fund and the FEIM Fund.  After searching the record, we were                
          unable to ascertain the precise amount of management fees                   
          attributable to the Currency Fund and the FEIM Fund.                        




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