- 69 - failed to make the requisite showing, and accordingly may not deduct the Fees until expiration of the VSC’s to which they relate. We accept respondent’s interpretation of the economic performance rule and adopt it as the evidentiary standard for these cases. However, we do not agree with respondent’s application of this standard. One index for measuring the Administrator’s performance may be found in the provisions of the operative agreements that govern how the Fees are earned for refund purposes. Under the refund formula, the Fees attributable to a contract are earned in proportion to the greater of time elapsed or mileage driven under the contract. This formula reflects two important aspects of the Administrator’s performance. First, the Administrator was obligated to incur substantial costs simply in making certain resources available at all times for processing claims and cancellations, whether or not a claim or cancellation notice was actually filed. Second, the Administrator provided recordkeeping and reporting services regularly throughout the term of the VSC. We think that the refund formula represents “a reasonable manner in which to estimate the amount and timing of the [Administrator’s] services” for purposes of section 461(h), and neither party has established the validity of any other estimation approach. The formula implies that, for any taxablePage: Previous 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 Next
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