WESTPAC PACIFIC FOOD v. C.I.R.

No. 02-71041.

451 F.3d 970 (2006)

WESTPAC PACIFIC FOOD; Save Mart Supermarkets, Inc., Tax Matters Partner, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed June 21, 2006.


Attorney(s) appearing for the Case

Thomas F. Carlucci, Foley & Lardner, LLP, San Francisco, CA, for the appellants.

Audrea R. Tebbets, Department of Justice, Tax Division, Washington, D.C., for the appellee.

Before JAMES L. OAKES, KLEINFELD, and CALLAHAN, Circuit Judges.


KLEINFELD, Circuit Judge.

We must decide whether cash paid in advance by a wholesaler to a retailer, in exchange for a volume commitment, is "gross income" under 26 U.S.C. § 61. In the grocery trade, these are called "advance trade discounts."

It is hard to think of a way to make money by buying things. A child may think buying things is how one makes money: he sees his father give a clerk a single piece of paper money, and receive in exchange the goods...

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