Compaq Computer Corporation and Subsidiaries - Page 38




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          contentions, Compaq Asia was not competing with unrelated                   
          subcontractors in Singapore because those entities did not have             
          the technology, equipment, engineering, or training required to             
          make Compaq U.S. PCA's.  Compaq U.S. exercised its business                 
          judgment during 1991 and 1992, when it needed additional PCA's,             
          in purchasing those PCA's from unrelated subcontractors in the              
          United States.  Respondent may not substitute his business                  
          judgment for petitioner's under the guise of a section 482                  
          allocation.  See Bausch & Lomb, Inc. v. Commissioner, 92 T.C. at            
          593; Seminole Flavor Co. v. Commissioner, 4 T.C. 1215, 1235                 
          (1945).                                                                     
               Compaq U.S. did, however, incur higher freight and duty                
          costs when shipping PCA's from Compaq Asia rather than from the             
          mostly U.S.-based unrelated subcontractors.  Thus, price                    
          adjustments to reflect these differences are appropriate but do             
          not render uncontrolled sales noncomparable.  See sec. 1.482-               
          2A(e)(2)(ii), Example (1), Income Tax Regs.  The incremental                
          freight costs that were required to ship PCA's from Compaq Asia             
          during 1991 and 1992 were $2.6 million, decreasing the Compaq               
          Asia aggregate price by that amount.  The parties also stipulated           
          to the net duty costs that were incurred on the Compaq U.S.                 
          purchase of Compaq Asia PCA's.  Compaq U.S. would not have                  
          incurred this net duty cost if it had purchased the PCA's from              
          the primarily U.S.-based unrelated subcontractors.  During 1991             





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