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alternative issue that if MS-Puerto Rico qualified to elect the
profit-split method, then MS-Puerto Rico failed properly to
calculate the combined taxable income under that method. On
February 25, 1997, petitioner filed a Notice of Objections to
Respondent's Motion For Leave to Amend Answer. On March 17, 1997,
respondent filed a response to petitioner's objections. By Order
dated March 17, 1997, we granted respondent's motion and permitted
the filing of the Amended Answer. The Order stated that respondent
was to bear the burden of proof with respect to the adjustment
raised by the alternative issue (the alternative adjustment). In
its April 25, 1997, Reply to Amendment to Answer, petitioner raised
as an affirmative defense the claim that respondent was time barred
from making the alternative adjustment under section 6501 because
the limitations period for assessment had expired.
On February 10, 1997, petitioner moved for partial summary
judgment on the issue of whether MS-Puerto Rico satisfied the
significant business presence test and thus qualified to elect the
profit-split method. After extensive pleadings and a hearing, we
denied petitioner's motion for partial summary judgment on June 18,
1997.
On November 4, 1997, respondent moved for partial summary
judgment on the issue of whether the restrictive consent agreement
encompassed respondent's alternative adjustment; namely, the
recalculation of the combined taxable income. On December 5, 1997,
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