- 38 - 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 1991Page: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Next
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