RACMP Enterprises, Inc. - Page 66




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               Section 448 permits certain smaller businesses to use the              
          cash method, but it does not preclude the Commissioner from                 
          determining, as was done here, that a taxpayer’s method does not            
          clearly reflect income.  Section 448 was argued by petitioner on            
          brief to the extent that petitioner contended that it was within            
          the $5-million maximum limitation of that section.  Respondent              
          made no comments in his brief concerning section 448 but instead            
          relied on the argument that petitioner failed to show that its              
          method (cash) clearly reflected income; i.e. that respondent                
          abused his discretion.                                                      
               Respondent’s discretion to determine that petitioner’s                 
          method does not clearly reflect income is derived from section              
          446 and is not obviated by section 448.  Although section 448 may           
          enable smaller businesses to use the cash method, it also                   
          effectively abolishes the use of the cash method for all other              
          taxpayers.7  Where a taxpayer is qualified under section 448,8              
          the cash method may be used if the taxpayer can show that the               
          cash method more clearly reflects income.  Section 448 cannot be            
          treated as a complete answer to our inquiry.  To do so would                
          ignore the statute, regulations, and our case precedent that hold           


               7 Congress’ enactment of sec. 448, in part, reflects its               
          acceptance that the cash method results in mismatching, but it              
          did not make its use by small taxpayers into a safe haven from              
          the exercise of the Commissioner’s discretion under sec. 446.               
               8 There has been no showing here that petitioner is in all             
          respects qualified under sec. 448.  In addition, the parties did            
          not stipulate that petitioner was qualified under sec. 448.                 



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