Transport Labor Contract/Leasing, Inc. & Subsidiaries - Page 84

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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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