Affiliated Foods, Inc., A Corporation - Page 25




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         vendor.  A vendor could choose, however, to make an immediate                
         payment of show money to a member store, either in currency or by            
         check.  If the vendor chose currency, the currency either had                
         come from petitioner (i.e., petitioner-delivered currency) or was            
         provided by the vendor itself (vendor-provided currency).  If                
         payment was of petitioner-delivered currency, respondent’s                   
         argument is that the vendor was not using its own money to pay               
         show money:  The vendor was using petitioner’s money to pay show             
         money.  As respondent sees it, simultaneously with the vendor’s              
         making a payment of petitioner-delivered currency to a member                
         store, the vendor rebated an equal amount to petitioner, which               
         petitioner returned to the vendor under an earlier direction that            
         the vendor pay the amount to the member store on petitioner’s                
         behalf.                                                                      
              Respondent justifies such indirection on the ground that                
         petitioner asserted sufficient control over the circumstances                
         surrounding the vendors’ receipts of petitioner-delivered                    
         currency that the vendors should be viewed as nothing more than              
         petitioner’s agents engaged to pay to the member stores rebates              
         from moneys (rebates) first received by petitioner.  Respondent              
         does not pin down the nature of that control, however, and the               
         fact that respondent does not similarly treat the vendors as                 
         petitioner’s agents in the case of vendor-provided currency or               
         checks (hereafter, without distinction, vendor-provided currency)            







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Last modified: November 10, 2007