- 70 - determination was based upon one method and an amendment to answer contained another method that resulted in an increased deficiency from that determined in the deficiency notice. See Eli Lilly & Co. v. Commissioner, 84 T.C. 996, 1132 (1985), affd. in part, revd. in part on other issues and remanded 856 F.2d 855 (7th Cir. 1988). The Commissioner’s trial expert in that case did not opine about either of these methods and, instead, relied on two other methods to allocate income. The taxpayer in Eli Lilly & Co., similarly to petitioners here, argued that the difference between the trial position and the deficiency notice determinations caused the Commissioner’s determinations to be arbitrary, capricious, and unreasonable. As a result, the taxpayer contended that the Commissioner’s determination should not be entitled to the presumption of correctness. The Court disagreed, holding that the presumption of correctness afforded to the Commissioner’s section 482 determinations is not to be lost solely because of the use of differing methodologies. The Court reasoned that to hold otherwise would preclude the Commissioner from using outside experts or making alternative determinations. In some circumstances, however, an abandonment of methodology may support a finding in part or whole, that the Commissioner’s determination was unreasonable, arbitrary, or capricious. See, e.g., National Semiconductor Corp. v. Commissioner, T.C. Memo. 1994-195.Page: Previous 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 Next
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