Nemetschek North America, Inc. - Page 6

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          million gross receipts exception of section 448.  Petitioner                
          claims that Diehl has consistently used the cash method since its           
          inception and that Diehl met the $5 million gross receipts                  
          exception for the relevant year.  Second, petitioner asserts that           
          a taxpayer meeting the $5 million gross receipts exception may              
          use the cash method whenever its sale of merchandise is not an              
          income-producing factor.  Petitioner claims that Diehl primarily            
          earned its income by selling intellectual property, which,                  
          petitioner claims, is not merchandise.  Petitioner claims that              
          Diehl’s sales of the manuals and other inventory items were not             
          an income-producing factor in its business because, petitioner              
          claims, the sales merely helped Diehl sell and market its                   
          intellectual property.  Third, petitioner asserts that Diehl                
          could use the cash method because its sales of the manuals and              
          other inventory items were insignificant as a function of its               
          gross receipts and that the amount of these items fluctuated                
          little from one yearend to the next.  Petitioner claims that it             
          is a per se abuse of discretion when respondent’s change in                 
          method of accounting generates adjustments to accounts receivable           
          and not to the amount of inventory at the beginning or end of the           
          year.  Fourth, petitioner asserts that respondent’s determination           
          is an abuse of discretion because Diehl changed to an overall               
          accrual method 2 years after the subject year.                              








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