RJR Nabisco Inc. (Formerly R.J. Reynolds Industries, Inc.) and Consolidated Subsidiaries - Page 47

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          petitioner made allocations based on the methodology of the                 
          tribunal.  Petitioner then determined what income tax consequence           
          to assign to each of those allocations and reported those                   
          consequences accordingly.  Respondent agrees with petitioner’s              
          allocations and with all but one of the consequences determined             
          by petitioner.  Petitioner treated $55,147,935, the amount                  
          described by the tribunal as the “level of inflation” adjustment,           
          as an amount realized on the sale or other disposition of the               
          concession.  Respondent does not agree with petitioner that the             
          “level of inflation” adjustment is an amount realized on the sale           
          or other disposition of the concession (which would give rise to            
          a long-term capital gain in an equal amount).  Respondent                   
          believes that the “level of inflation” adjustment (the disputed             
          item) is ordinary income in the nature of interest.  As the                 
          parties have framed the issue, we must determine whether the                
          disputed item is as petitioner describes it or is as respondent             
          describes it.                                                               
               B.  Arguments of the Parties                                           
               Petitioner’s argument is as follows:                                   
                    Petitioners contend that the unexplained 10%                      
               “inflation” factor [the disputed item] is taxable as                   
               capital gain under section 1231 because it represented                 
               disguised compensation for Kuwait’s premature                          
               termination of Aminoil’s Concession, for which there is                
               no identifiable compensation on the face of the Award.                 
               Respondent’s argument is as follows:                                   






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