MidAmerican Energy Company - Page 28




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                  Mrs. Andrews by the amount of Mrs. Andrews’ obligation                               
                  to Met Life.  The payments which Mrs. Andrews received                               
                  are properly taken into account in the years in which                                
                  she received them.  There was no constructive                                        
                  restoration to Met Life in 1987 or any subsequent year,                              
                  as no out-of-pocket payment was made.  [Id.; see also                                
                  Chernin v. United States, 149 F.3d at 816.]                                          
                  Petitioner argues that section 1.461-4(g)(3), Income Tax                             
            Regs., allows for a refund by means of a setoff to qualify as a                            
            section 162 deductible expense.  That section reads in pertinent                           
            part:                                                                                      
                        (3) Rebates and refunds.  If the liability of a                                
                  taxpayer is to pay a rebate, refund, or similar payment                              
                  to another person (whether paid in property, money, or                               
                  as a reduction in the price of goods or services to be                               
                  provided in the future by the taxpayer), economic                                    
                  performance occurs as payment is made to the person to                               
                  which the liability is owed.  This paragraph (g)(3)                                  
                  applies to all rebates, refunds, and payments or                                     
                  transfers in the nature of a rebate or refund                                        
                  regardless of whether they are characterized as a                                    
                  deduction from gross income, an adjustment to gross                                  
                  receipts or total sales, or an adjustment or addition                                
                  to cost of goods sold.  In the case of a rebate or                                   
                  refund made as a reduction in the price of goods or                                  
                  services to be provided in the future by the taxpayer,                               
                  “payment” is deemed to occur as the taxpayer would                                   
                  otherwise be required to recognize income resulting                                  
                  from a disposition at an unreduced price.  * * *                                     
                  [Emphasis added.]                                                                    
                  This regulation does not assist petitioner, because there is                         
            no liability of petitioner to repay its customers.  Petitioner                             
            reduced rates in accordance with ARAM, but, as set forth above,                            
            it was unable to show that it was compensating its customers for                           
            prior overcollections.  In addition, section 1.461-4(g)(3),                                
            Income Tax Regs., was not in effect for the years in issue.  It                            






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