Affiliated Foods, Inc., A Corporation - Page 45




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         petitioner had sufficient information to compute its margin on               
         each sale.  There also is a stipulation as to the net amount of              
         petitioner-delivered currency retained by the vendors.  There is             
         no evidence confirming the actual payments of petitioner-                    
         delivered currency by vendors to member stores, but the deemed               
         fact of those payments underlies respondent’s adjustments.  While            
         cash payments to member stores might invite abuse by the member              
         stores, there is no evidence of any such abuse here, and, to the             
         extent that payments were actually made by the vendors to member             
         stores, we assume that the vendors had adequate motivation to                
         keep adequate records of those payments.  In short, whatever                 
         shortcomings exist in petitioner’s records, respondent has failed            
         to convince us that those shortcomings justify denying petitioner            
         a reduction in the amount of its gross receipts from sales to                
         member stores on account of deemed rebates that respondent would             
         charge against petitioner’s costs of goods sold and would treat              
         as having been passed on as price reductions to the member                   
         stores.                                                                      
                   5.  Conclusion                                                     
              The deemed rebates that respondent charges petitioner with              
         making are (if they are to be charged to petitioner) properly                
         characterized as trade discounts.  They were not paid with                   
         reference to petitioner’s net earnings but merely passed along               
         price adjustments that petitioner was entitled to on account of              







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Last modified: November 10, 2007