- 80 - proposed by respondent at trial are attributable to information acquired by respondent after issuance of the notices of deficiency. Ultimately, the factual information exchanged by the parties and then offered into evidence forms the basis for our opinion. The amounts decided are considerably less than the amounts determined in the notices. The decided amounts, however, fall somewhere in between the extreme trial positions of the parties. The large difference between the amounts contained in respondent’s notices and those proposed at trial and the differences between the parties’ trial positions are largely attributable to the assumptions adopted by the parties’ experts. For example, respondent’s in-house expert used a 15-percent markup on the imbalance costs, whereas respondent’s trial expert used a 4-percent markup. Ironically, because petitioners’ expert advocated a full cost approach to the imbalance adjustment, he was able to appear magnanimous by using the same 15-percent markup that had been used by respondent’s in-house expert in the notice. This serves to illustrate that differences in assumptions made large differences in the determinations and the parties’ positions. The assumptions relied on by respondent were not arbitrary, capricious, or unreasonable considering the circumstances here. Accordingly, respondent’s notice determinations, although resulting in determinations at the outside margins, represent aPage: Previous 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 Next
Last modified: May 25, 2011