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limitation.[54]
Accordingly, the actions and return positions of
the other trucking companies must be reviewed to
determine whether the deficiencies computed by
respondent are correct. We respectfully request,
therefore, that the Court vacate its Order [sic] of
August 16 and order the parties to submit computations
pursuant to Rule 155. This will permit the parties the
opportunity to determine whether TLC’s liability should
be reduced by the amounts already paid by parties to
the transaction.
On the record before us, we reject petitioner’s assertion.
Petitioner did not advance petitioner’s tax duplication
argument in its petition, in its trial memorandum, at trial, or
on brief. It was only after the Court ruled against petitioner
in Transport Labor I that petitioner decided to advance
petitioner’s tax duplication argument in petitioner’s motion to
vacate. By doing so, petitioner is trying to advance in the
context of a Rule 155 computation a new argument that it is
raising for the first time in petitioner’s motion to vacate.55
54There was no evidence in the record in this case estab-
lishing: (1) That the examining agent who audited the consoli-
dated return that petitioner filed for each of the years at issue
also conducted an audit of any of TLC’s trucking company clients
and (2) that any such examining agent made any statements to
petitioner’s officers, directors, or employees that a significant
number of TLC’s customers applied the sec. 274(n)(1) limitation
to any amounts that they paid to TLC.
55Even if we were to allow petitioner to advance
petitioner’s tax duplication argument, petitioner would not be
entitled to the remedy it seeks. If, as petitioner asserts,
certain trucking company clients applied the sec. 274(n)(1)
limitation to certain amounts that they paid to TLC as a lease
fee, our findings and conclusions in Transport Labor I may have
resulted in such trucking company clients’ having overpayments of
tax. The appropriate remedy in any such situation would be for
any such trucking company client to seek a refund of any such
(continued...)
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