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petitioner's arrangement under the SCP contract. Respondent
contends that Fresh Choice received more than the 55-cent
commission rate because Fresh Choice received a share of the
produce sale profits, a marketing fee, and interest on working
capital loans which petitioner did not receive. Respondent
asserts further that Fresh Choice's fixed costs cannot be
compared to petitioner's fixed costs. Petitioner contends that
in the Fresh Choice joint venture there were three transactions
(equity contribution, equity line of credit, and distributing
services) for which there were three forms of consideration
(profit share, interest, and commission). According to
petitioner, the 55-cent commission rate Fresh Choice received
related only to its distribution function.
We agree with respondent that the additional compensation
Fresh Choice received that petitioner did not receive makes Fresh
Choice's commission rate an unreliable comparable for
petitioner's commission rate in the SCP deal.
Petitioner also points to the 5-percent-of-gross-sales
commission with 15-cent-per-box handling charge Apache charged
the Canelos growers for selling their No. 2 grade tomatoes as a
reasonable comparable to petitioner's 55-cent-per-package
commission rate in the SCP deal. Petitioner contends that Apache
provided the same major distribution services for the Canelos
growers that petitioner provided.
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