We previously mentioned the IFA “Great Debate,” held on the campus of Stanford University on October 27, 2010, where the debaters squared off on the debatable utility of the Temporary Cost Sharing Regulations Income Method in valuing intangible transfers for transfer pricing purposes. As forecast, the debate was extremely well-attended (notwithstanding the conflicting start of the first game of the World Series just up the road in San Francisco). Bob Kirschenbaum and Clark Chandler drew the “pro” (i.e., you should never use the Income Method) while Jim O’Brien and Keith Reams drew the “con.” After the debate, Bob and I kicked around his presentation, how things went, and how he feels about the issue generally. The discussion seemed interesting enough to formalize and post.
Did you enjoy arguing the “pro” position? Would you have preferred to have the “con” position?
We were prepared for either and I think Clark and I did a good job advocating. However, I actually would have preferred the “con” position. It is more interesting analytically because you get to drill down on how the Code and Regulations might be read to permit an income method analysis that would fairly measure the value of the IP actually transferred.
With most taxpayers fighting the income method at Exam, wasn’t the “pro” position easier?
It is easier in the sense that the argument can be made very simply. That is true. The argument goes like this: The existing cost sharing regulatory construct already enabled the evaluation of rights to the anticipated income stream without essentially disregarding the transaction as actually structured by the parties. The “con” position, on the other hand, requires a more nuanced understanding of transfer pricing principles, what they are trying to achieve, and how one might go about constructing a set of variable inputs that could be used to indirectly derive the value of the IP transferred.
Personally, do you think the income method has a place in transfer pricing practice?
I think it does. However, Clark made a very persuasive argument that the Income Method as constituted in the Temporary Regs, while not to be discarded out of hand, becomes much more tenuous: (i) if the Regulations are read as mandating a counterfactual perpetual useful life of transferred IP (see Veritas v. Commissioner), and (ii) when coupled with the Periodic Trigger look-back provisions of the Temporary Regulations. If fairly applied, and in the right circumstances, the Income Method can be a powerful convergence tool for valuing IP. We have proven that in our dealings with Exam on cases where the IRS seeks to require CIP-compliant outcomes. Obviously, it will never be as good as a valid CUT, but it can be useful and does have a place in the practice.
What does the Tax Court’s recent decision in Veritas tell us about the viability of the Income Method?
At the end of the day, probably not much. Veritas was a gross overreach by the IRS; ultimately, the decision is just Bausch & Lomb revisited. Taxing a neutral transfer of business opportunity is not going to fly, nor is the imposition of a perpetual life for IP that produces premium profits for some limited number of years. That dog just will not hunt against a sophisticated and well-advised taxpayer. But it certainly doesn’t mean that the Income Method, properly applied, is never useful.
What do you see as the biggest errors the IRS makes in applying the Income Method?
(1) The perpetual useful life edict, and (2) the implicit presumption of unlimited sustention of competitive advantage. Technology progresses and, the fact is, legacy technology often doesn’t persist for multiple generations. You could not find too many people in Silicon Valley—where I do a fair amount of my work—who would take the other side of that proposition. Even where technology does persist for an extended period, the IRS at times contends that fundamentally new products, developed at great risk under Cost Sharing, owe their genesis entirely to foundational IP. You cannot assume large growth rates decades out and try to allocate all of that value to the original IP. At some point the competitive advantage associated with the pre-existing IP will dissipate. This is very basic finance theory. There are certainly other concerns but these are the most glaring weaknesses in the application of the Income Method.
Practitioners interested in the more interesting conceptual aspects of transfer pricing should mark October 27th on their calendars. On that day, the International Fiscal Association is sponsoring a debate on the usefulness of the income method to value intangibles in the transfer pricing context. Dubbed “The Great Debate” by IFA, this year’s event will pit the best transfer pricing practitioners in the world (including Miller & Chevalier’s Bob Kirschenbaum and Baker & McKenzie’s Jim O’Brien) against each other. Neither will know which position they are arguing prior to a coin toss. The gloves will surely come off and our current understanding is that the only thing missing will be a steel cage. Attendance is limited to IFA members and special guests (which you can become by being sponsored by an IFA member).
On July 28, 2010, the IRS released AOD 2010-33; 2010-33 IRB 1. The AOD acquiesces in the result but not the reasoning of Xilinx, Inc. v. Comm’r, 598 F.3d 1191, 1196 (9th Cir. 2010) which held that stock option costs are not required to be shared as “costs” for purposes of cost sharing agreements under old Treas. Reg. §1.482-7. For prior analysis of Xilinx see this. The AOD in and of itself is relatively unsurprising. New regulations (some might say “litigating regulations”) have been issued that explicitly address the issue, and those regulations will test the question of whether Treasury has the authority to require the inclusion of such costs. The IRS surely realized that from an administrative perspective it was smart to let this one go. The best move for most taxpayers is likely to grab a bucket of popcorn and watch the fireworks as a few brave souls test Treasury’s mettle by challenging the validity of the new regulations. Including a provision in your cost sharing agreements that allow adjustments in the event of a future invalidation of the regulations might go well with the popcorn.
The only really interesting item in the AOD is the gratuitous bootstrap of the Cost Sharing Buy-In Regs “realistic alternatives principle.” The still warm “realistic alternatives principle” – the IRS assertion that an uncontrolled taxpayer will not choose an alternative that is less economically rewarding than another available alternative – “applies not to restructure the actual transaction in which controlled taxpayers engage, but to adjust pricing to an arm’s length result.” AOD, 2010 TNT 145-18, pp.4-5. That assertion appears to ignore that “arm’s length” is not some obscure term of art cooked up by the IRS, but rather an established concept that lies at the heart of most countries’ approach to international taxation.
Still clinging to the withdrawn Ninth Circuit opinion, the AOD offers in support of this premise that “the Secretary of the Treasury is authorized to define terms adopted in regulations, especially when they are neither present nor compelled in statutory language (such as the arm’s length standard), that might differ from the definition others would place on those terms.” Xilinx, Inc. v. Comm’r, 567 F.3d 482, 491 (9th Cir. 2009).
In short, the IRS appears to have dusted off the rule book of the King in Alice and Wonderland:
The King: “Rule Forty-two. All persons more than a mile high to leave the court.”
“I’m not a mile high,” said Alice.
“You are,” said the King.
“Nearly two miles high,” added the Queen.
“Well, I shan’t go, at any rate,” said Alice: “besides, that’s not a regular rule: you invented it just now.”
“It’s the oldest rule in the book,” said the King.
“Then it ought to be Number One,” said Alice.
Alice’s Adventures in Wonderland at 125 (Giunti Classics ed. 2002). The IRS has often been disappointed with the real rule Number One (the arm’s length principle) when the results of real-world transactions do not coincide with the results the IRS desires. Now the IRS looks to magically transform that rule into one that replaces those real-world transactions with the IRS’s revenue-maximizing vision. Tax Wonderland is getting curiouser and curiouser.