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argue, or even mention, petitioner’s section 274(e)(3) argument
in its trial memorandum, at trial, or on brief. Consequently, we
concluded that petitioner had abandoned that argument. See
Nicklaus v. Commissioner, 117 T.C. 117, 120 n.4 (2001); Rybak v.
Commissioner, 91 T.C. 524, 566 n.19 (1988). It was only after
the Court ruled against petitioner in Transport Labor I that
petitioner decided to resurrect petitioner’s section 274(e)(3)
argument in petitioner’s motion to vacate. By doing so,
petitioner is trying to advance in the context of a Rule 155
computation theories or grounds with respect to a position which
it abandoned before the trial in this case and with respect to
which petitioner wants the Court to hold a second trial at which
petitioner would introduce new evidence in support of that
position.
With respect to petitioner’s tax duplication argument,
petitioner asserts:
As a result of the Court’s Opinion in this case
and without a Rule 155 proceeding, respondent will be
in a windfall position — it will have collected tax on
the same transaction twice. Congress has explicitly
recognized that only one taxpayer should be subject to
the tax. H. Rept. 1447, 87th Cong., 2d Sess. (1962),
1962-3 C.B. 405, 429; see also Treas. Reg. � 1.274-
2(f)(2)(iv)(a). Respondent’s computations in the
Notices of Deficiency fail to take that double payment
of tax into account.
At the time of the audit of TLC’s returns for the
years at issue, the examining agent also was reviewing
information related to TLC’s customers to determine
whether the customers had applied the deduction
limitation. The agent informed TLC during the
examination that a significant number of TLC’s
customers applied the Section 274(n) deduction
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