Suzy's Zoo - Page 20




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          amended by the Senate.8  See H. Conf. Rept. 100-1104 (Vol. II),             
          at 145, 146 (1988), 1988-3 C.B. 473, 635-636.  Given the fact               
          that none of petitioner’s shareholders owns the requisite                   
          percentage of stock as set forth in the report of the House Ways            
          and Means Committee, we hold that petitioner does not qualify for           
          the exemption set forth in section 263A(h).9  We need not and do            
          not address whether petitioner was otherwise disqualified for               
          that exemption because, as asserted by respondent, its paper                
          products are utilitarian in nature.                                         
               Having concluded that petitioner is subject to the UNICAP              
          rules, we now turn to the remaining issue; i.e., the year in                
          which section 481 requires that petitioner account for its change           
          to the UNICAP rules.  Petitioner argues that TRA section                    
          803(d)(2) requires that it account for this change in its taxable           
          year ended June 30, 1988.  In relevant part, that section                   
          provides:                                                                   


               8 None of the Senate’s amendments are relevant for purposes            
          of our discussion.                                                          
               9 Petitioner argues that the Court should apply a “facts and           
          circumstances test” to determine whether Ms. Spafford owns                  
          “substantially all” of petitioner’s stock for purposes of sec.              
          263A(h).  Petitioner notes that neither the text of sec. 263A nor           
          the regulations thereunder have ever mentioned the 95 percent               
          test referenced in the committee report and states that the                 
          “House Committee Report to Public Law 100-246 * * * suggested               
          that a 95% interest would clearly satisfy the substantially all             
          test.”  Suffice it to say that the 95-percent test referenced in            
          the committee report is more than a mere suggestion and that                
          petitioner fails the 95-percent test because none of its                    
          shareholders owns the requisite percentage of stock.                        





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