- 30 - U.S. from Compaq Asia that is approximately $232 million greater than respondent's determination in the notice. Due to the significant difference in these arm's-length prices and respondent's determination in the notice of deficiency, we conclude that respondent's allocations lead to an unreasonable result and are thus arbitrary, capricious, and unreasonable. Respondent argues that the shortcomings of the notice should be excused because respondent assertedly considered all of the evidence available to him at the time that he issued the notice. Respondent argues an analogy to ASAT, Inc. v. Commissioner, 108 T.C. 147, 166-167 (1997). Specifically, respondent contends that petitioner used the cost-plus method in arriving at the return position but at trial used the CUP method to establish the arm's- length prices of Compaq U.S. purchases from Compaq Asia. Accordingly, respondent argues that the deficiency determination should not be held arbitrary and capricious because, when the notice position was formulated, it was reasonable. Unlike the situation in ASAT, Inc., which applied the sanction aspects of section 6038A, respondent here was not denied any information necessary to a reasonable determination. Petitioner's change of position is not the equivalent of unfair withholding of evidence. Petitioner's conduct does not, in this case, enhance the credibility of the statutory notice.Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
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