- 21 - undistributed petitioner-delivered currency distinguish the facts before us from the facts we relied on in Affiliated Foods, Inc. v. Commissioner, supra. In the prior litigation, we found “most” important the requirement that undistributed petitioner-delivered currency be returned; that requirement evidenced to us petitioner’s exercise of dominion and control over petitioner- delivered currency.5 The return requirement ensured that petitioner-delivered currency would either be paid to member stores or returned to petitioner. In the present litigation, we cannot be equally confident that petitioner-delivered currency not returned to petitioner was paid to member stores, since 5 In Affiliated Foods, Inc. v. Commissioner, T.C. Memo. 1996-505, affd. in part, revd. in part and remanded 154 F.3d 527 (5th Cir. 1998), we found that amounts received from vendors and credited to the vendors’ promotional allowance accounts were items of gross income to petitioner when received. We were reversed on that point by the Court of Appeals for the Fifth Circuit. Affiliated Foods, Inc. v. Commissioner, 154 F.3d 527 (5th Cir. 1998). Respondent has made no adjustments for amounts similarly received during the audit years, and we assume that, at least for purposes of this case, respondent accepts the Court of Appeals’ conclusion that vendors retained control of funds credited to the promotional allowance accounts and receipt of those funds did not give rise to gross income to petitioner. Id. at 533. We assume further that an amount equal to any petitioner-delivered currency that a vendor chose to return to petitioner following a food show during the audit years was either returned to the vendor or credited to its promotional allowance account (and, therefore, petitioner retained no control over any currency returned to it). We make those assumptions because, for the audit years, respondent has increased petitioner’s income by only the excess of the petitioner- delivered currency over the amount of cash returned by vendors to petitioner at the conclusion of the food show.Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: November 10, 2007