Chen C. and Victoria R. Wang, et al. - Page 23

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               Petitioner and EIC used the installment method to report               
          income in tax returns that were filed after the 1979 closing                
          agreement was executed.  This seriously undercuts petitioner's              
          contention that the parties intended that the 1979 closing                  
          agreement would require them to use the cost recovery method in             
          future years.  See Pacific Portland Cement Co. v. Food Mach. &              
          Chem. Corp., 178 F.2d 541, 554 (9th Cir. 1949) (when interpreting           
          a contract, a court may look to the parties' actions in ascer-              
          taining their intent).  Therefore, we find that the 1979 closing            
          agreement does not cover the method for reporting income during             
          the years at issue.                                                         
               Based on the foregoing, we conclude that the attempts by               
          petitioner and EIC to change accounting methods by filing amended           
          tax returns are ineffectual.  After determining that the Wangs              
          and EIC used an impermissible accounting method to report income,           
          respondent may change their method of accounting to any method              
          that, in respondent's opinion, clearly reflects income.  Sec.               
          446(b).  Petitioner does not argue that respondent's use of the             
          accrual method is "clearly unlawful" or "plainly arbitrary."                
          Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532-533 (1979)           
          (quoting Lucas v. American Code Co., 280 U.S. 445, 449 (1930),              
          and Lucas v. Structural Steel Co., 281 U.S. 264, 271 (1930)).               
          Accordingly, we sustain respondent's determination that peti-               







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