H Group Holding, Inc. and Subsidiaries - Page 84




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          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.                                           





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