Affiliated Foods, Inc., A Corporation - Page 21




                                       - 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  Next 

Last modified: November 10, 2007