- 41 - 213; So. Pac. Transp. Co. v. Commissioner, 75 T.C. at 681. “The applicable standard is whether the accounting clearly reflects income”. United States v. Ekberg, supra at 925 (opinion by Circuit Judge Blackmun). The taxpayer must show that the Commissioner acted arbitrarily upon any fair view of the facts. See Schram v. United States, supra at 543-544. On the other hand, in a case in which the taxpayer did not first request the Commissioner’s consent, such as where, as in the instant case, the taxpayer attempts in a court proceeding to retroactively alter the manner in which the taxpayer accounted for an item on his or her tax return, then there is no action of the Commissioner to review under the abuse of discretion standard. The question in such a case is whether the change constitutes a change of accounting method that is subject to section 446(e) and not whether the Commissioner’s actions were arbitrary and an abuse of discretion. See So. Pac. Transp. Co. v. Commissioner, supra at 682; Wright Contracting Co. v. Commissioner, 36 T.C. at 635-636; cf. FPL Group, Inc. & Subs. v. Commissioner, 115 T.C. at 572, 575; Poorbaugh v. United States, 423 F.2d 157, 163 (3d Cir. 1970); Hackensack Water Co. v. United States, 173 Ct. Cl. 606, 352 F.2d 807 (1965). If the change constitutes a change of accountingPage: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
Last modified: May 25, 2011