- 153 - information does not exist in this record; (3) the expert used 1991 and 1992 cost figures for DHLI which are different from those used by the parties and contained in the record; (4) the expert used a 15-percent markup (same as used in the notices of deficiency but different from the 4 percent advanced by respondent for purposes of litigation and 2 percent used by the parties) without analysis of comparable companies to determine what an appropriate markup should be, and respondent also points out that petitioners argued that the 15-percent markup used for the notice determinations was arbitrary and capricious; and (5) the expert’s use of package or document weight is unjustified and does not comport with the parties’ agreement that uses a weighted cost that accounts for the difference in costs between packages and documents, and therefore no further adjustment is necessary to the imbalance cost. The record and most of the expertise provided by the parties support DHL’s and DHLI’s 1987 approach to the imbalance and transfers as one that is arm’s length, and we so hold. Petitioners did not provide any other reciprocal arrangements with unrelated parties that were under the same or similar circumstances as those advanced by their expert. See sec. 1.482- 2(d)(2)(ii), Income Tax Regs. Accordingly, we used a facts and circumstances approach to deciding an arm’s-length markup. Sec. 1.482-2(d)(2)(iii), Income Tax Regs. Regarding the failure to account or pay for imbalances or transfers before 1987, we holdPage: Previous 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 Next
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