Westpac Pacific Foods - Page 18




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          Noting that the taxpayer was not obligated to make additional               
          purchases under the settlement agreement and that receipt of the            
          total discount was not certain, the Board held that the                     
          taxpayer's income would not be accurately reflected were it                 
          required to accrue the full amount of the potential discount                
          prior to receipt.  Id. at 384.                                              
               We find the decision in John Graf Co. v. Commissioner,                 
          supra, of little relevance to the present dispute.  The John Graf           
          Co. case addressed the issue of whether discounts not yet                   
          received should be accrued in income;9 it did not address the               
          issue of whether recognition of discounts actually received                 
          subject to a contingent repayment obligation could be deferred.             
          As to this latter issue, it is well settled that contingent                 
          repayment obligations do not operate to defer the recognition of            
          income:                                                                     
               If a taxpayer receives earnings under a claim of right                 
               and without restriction as to its disposition, he has                  
               received income which he is required to return, even                   
               though it may still be claimed that he is not entitled                 
               to retain the money, and even though he may still be                   
               adjudged liable to restore its equivalent. * * * [N. Am.               
               Oil Consol. v. Burnett, 286 U.S. 417, 424 (1932).]                     




               9  A number of the purchase contracts at issue in the                  
          present case contained provisions for additional discounts to be            
          paid if Westpac met certain volume purchase targets.  Unlike the            
          Commissioner's position in John Graf Co. v. Commissioner, 39                
          B.T.A. 379 (1939), respondent does not contend that those future            
          discounts should be accrued in income prior to their receipt.               





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