GAC Produce Co., Inc., An Arizona Corporation - Page 63




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         petitioner's employees making the Van Dyke commission, in effect,             
         9.5 percent of sales.                                                         
              We are persuaded that the 10-percent commission rate paid by             
         the otros growers is the most reliable comparable commission rate             
         for the marketing services petitioner rendered in the SCP deal.               
         Petitioner performed substantially the same marketing services                
         for the otros growers as it performed for the Canelos growers.                
         The otros growers were not related to any of the principals in                
         the SCP deal.  Consequently, negotiations between petitioner and              
         the otros growers were at arm's length.  The otros growers also               
         are Mexican growers.  Consequently, their circumstances are more              
         similar to the Canelos growers' than to the U.S. growers'.  In                
         addition, the commission petitioner received from the otros                   
         growers served as its only form of compensation for the marketing             
         services petitioner rendered on their behalf.                                 
              We agree with respondent that the fact that petitioner paid              
         a portion of the commissions to the Canelos growers does not                  
         require an adjustment of the 10-percent commission rate.  The                 
         contractual arrangement petitioner had with the otros growers did             
         not require that petitioner give them money advances.  The otros              
         growers, thus, agreed to pay and did pay petitioner the 10-                   
         percent commission rate regardless of whether petitioner advanced             
         them funds.  Petitioner's actions in forwarding to the Canelos                
         growers the difference between the 10-percent-of-sales amount and             





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Last modified: May 25, 2011