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adjustment relating to the disallowance". See Loeser v.
Commissioner, 27 B.T.A. 601, 606 (1933). The restricted consent
could have merely read: "The amount of any deficiency assessment is
to be limited to that resulting from Microsoft's use of the profit-
split method." In our opinion, "the disallowance of Microsoft's
use of the profit split method" refers to Microsoft's qualification
to elect the profit-split method. Moreover, we believe reference
to "The Service's proposed adjustment" (emphasis added) is a strong
point in petitioner's favor restricting the consent to issues
previously raised in the NOPA and the 30-day letter.
To conclude, the restricted consent was not broad enough to
encompass the alternative adjustment raised by respondent's amended
answer. Consequently, respondent's motion for partial summary
judgment will be denied, and petitioner's cross-motion for partial
summary judgment will be granted.
An appropriate order will be
issued.
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Last modified: May 25, 2011