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'Active Conduct' Rule Removed From Final Cost-Sharing Regs.

MAY 13, 1996

T.D. 8670; 61 F.R. 21955-21957

DATED MAY 13, 1996
DOCUMENT ATTRIBUTES
  • Institutional Authors
    Internal Revenue Service
  • Cross-Reference
    IL-372-88; for a summary, see Tax Notes, Jan. 27, 1992, p. 374.

    T.D. 8632; for a summary, see Tax Notes, Dec. 25, 1995, p. 1592; for

    the full text, see 95 TNT 247-4 or H&D, Dec. 20, 1995, p. 4627.

    This document appeared in TNT as 96 TNT 93-8 and in the AccServ &

    Microfiche as Doc 96-13943 (10 pages).
  • Code Sections
  • Subject Area/Tax Topics
  • Index Terms
    related-party allocations
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 96-14383 (3 pages)
  • Tax Analysts Electronic Citation
    96 TNT 99-67
Citations: T.D. 8670; 61 F.R. 21955-21957
====== SUMMARY ======

The IRS has published final regulations on qualified cost- sharing arrangements (T.D. 8670) that repeal the "active conduct" rule of reg. section 1.482-7(c). The IRS said the change was made to streamline the participation rules; a general rule employing a "reasonable anticipation" of benefits standard was added to the regs.

Proposed regulations (IL-372-88) were issued in January 1992, and final rules (T.D. 8632) were published in December 1995. (For a summary of the final regs, see Tax Notes, Dec. 25, 1995, p. 1592; for text, see 95 TNT 247-4 or H&D, Dec. 20, 1995, p. 4627.) T.D. 8670 makes technical changes to the rules set out in T.D. 8632 for qualification as a "controlled participant" in a cost-sharing arrangement.

The IRS explained that the active conduct rule "was intended to ensure that a controlled participant stands to benefit from the use of covered intangibles in a manner that can be reliably measured." That purpose, the IRS concluded, "can be accomplished without the active conduct rule." It said there is no need for distinctions based on the nature of a participant's use of covered intangibles, "so long as its benefits from such use (whether from directly exploiting the intangibles or from transferring or licensing them to others) can be reliably measured."

In place of the active conduct rule the regs now include a general rule that a controlled taxpayer may be a controlled participant in a cost-sharing arrangement only if it "reasonably anticipates that it will derive benefits from the use of covered intangibles." There are additional rules intended to ensure that benefits to group members are measured consistently.

T.D. 8670 is effective May 13, 1996; the regs are applicable for tax years beginning on or after January 1, 1996.

This document appeared in TNT as 96 TNT 93-8 and in the AccServ & Microfiche as Doc 96-13943 (10 pages).

====== FULL TEXT ======

[4830-01-u]

DEPARTMENT OF THE TREASURY

 

Internal Revenue Service

26 CFR Part 1

[TD 8670]

RIN 1545-AU20

[1] AGENCY: Internal Revenue Service (IRS), Treasury.

[2] ACTION: Final regulations.

[3] SUMMARY: This document contains final regulations relating to qualified cost sharing arrangements under section 482 of the Internal Revenue Code. These regulations reflect technical changes to the requirements for qualification as a controlled participant under the final cost sharing regulations published in the Federal Register on December 20, 1995.

[4] DATES: These regulations are effective May 13, 1996. These regulations are applicable for taxable years beginning on or after January 1, 1996.

[5] FOR FURTHER INFORMATION CONTACT: Lisa Sams of the Office of Associate Chief Counsel (International), IRS (202) 622-3840 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

BACKGROUND

[6] Section 482 was amended by the Tax Reform Act of 1986, Public Law 99-514, 100 Stat. 2085, 2561, et. seq. (1986-3 C.B. (Vol. 1) 1, 478). On January 30, 1992, a notice of proposed rulemaking concerning the section 482 amendment in the context of cost sharing was published in the Federal Register (INTL- 0372-88, 57 FR 3571).

[7] Written comments were received with respect to the notice of proposed rulemaking, and a public hearing was held on August 31, 1992.

[8] On December 20, 1995, final regulations were published in the Federal Register (INTL-0372-88, 60 FR 65553) as Treasury Decision 8632. These final regulations amend the regulations contained in Treasury Decision 8632 by making technical changes to the requirements for qualification as a controlled participant contained in section 1.482-7(c).

[9] The agency has decided not to issue a second notice of proposed rulemaking with respect to the modifications to TD 8632 contained in these final regulations. The rules to which the modifications relate (concerning qualification as a controlled participant) were the subject of the notice of proposed rulemaking published on January 30, 1992, and comments on those rules were received in connection with those proposed regulations. Therefore, a further comment period on these rules is unnecessary. Taxpayers need prompt guidance on how to conform their arrangements to the rules set forth in TD 8632, which is effective for taxable years beginning on or after January 1, 1996, and which provides a one year transition period for amending arrangements. The modifications contained in these final regulations will aid taxpayers in that regard, and any delay caused by a second notice of proposed rulemaking would be impracticable and contrary to the public interest. Unsolicited comment letters were received in connection with TD 8632 and are available for public inspection in the FOIA reading room.

EXPLANATION OF PROVISIONS

[10] The purpose of these regulations is to rectify problems in qualifying as a controlled participant caused by the technical requirements of the active conduct rule of section 1.482-7(c). This rule provided that a controlled taxpayer may be a controlled participant only if it uses or reasonably expects to use covered intangibles in the active conduct of a trade or business.

[11] Under the 1992 proposed cost sharing regulations, a member of a group of controlled taxpayers could participate in a qualified cost sharing arrangement on behalf of, and could satisfy the active conduct rule based on activities performed by, one or more other members of the group (a cost sharing subgroup). The participating subgroup member would then transfer or license the intangibles developed under the arrangement to the nonparticipating subgroup member(s). The proposed regulations would have measured benefits in such case on the basis of the benefits of the entire subgroup from exploiting the intangibles. TD 8632, in streamlining the participation rules, omitted the subgroup rules. Taxpayers commented that the change would force them to amend existing arrangements to include as a participant every operating company that predictably would be using covered intangibles.

[12] These regulations further streamline the participation rules. The principal reason for the active conduct rule was to ensure that a controlled participant stands to benefit from the use of covered intangibles in a manner that can be reliably measured. The Treasury and Service have concluded that this purpose can be accomplished without the active conduct rule. No distinction need be made based on the nature of a participant's use of covered intangibles, so long as its benefits from such use (whether from directly exploiting the intangibles or from transferring or licensing them to others) can be reliably measured.

[13] Accordingly, these regulations eliminate the active conduct rule of section 1.482-7(c) as a requirement for qualification as a controlled participant in a qualified cost sharing arrangement. Section 1.482-7(c)(1) of these regulations substitutes a general rule that a controlled taxpayer may be a controlled participant in a cost sharing arrangement only if it reasonably anticipates that it will derive benefits from the use of covered intangibles. In addition, section 1.482-7(f)(3)(ii) provides that if a controlled participant transfers covered intangibles to another controlled taxpayer, the participant's benefits will be measured with reference to the transferee's benefits rather than with reference to any consideration paid by the transferee. (This gives rise to results similar to those under the subgroup rules of the proposed regulations by different mechanics.) Finally, section 1.482- 7(f)(3)(ii) continues to provide that the amount of benefits that each of the controlled participants is reasonably anticipated to derive from covered intangibles must be measured on a basis that is consistent for all such participants.

[14] These changes ensure that a controlled participant must benefit from the arrangement, that the basis for measuring benefits must be consistent for all controlled participants, and that, in the event of intragroup transfers, there will be "look through" treatment for reliably measuring benefits. These rules allow a participant to exploit covered intangibles itself or through transferring or licensing them to others, so long as the benefits to be derived can be consistently and reliably measured for all controlled participants.

[15] These regulations also clarify that the documentation requirements of section 1.482-7(j)(2) will satisfy the principal document requirement of section 1.6662- 6(d)(iii)(B) with respect to a qualified cost sharing arrangement.

SPECIAL ANALYSES

[16] It has been determined that this Treasury decision is not a significant regulatory action as defined in EO 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to these regulations, and, therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Small Business Administration for comment on its impact on small business.

DRAFTING INFORMATION

[17] The principal author of these regulations is Lisa Sams, Office of Associate Chief Counsel (International), IRS. However, other personnel from the IRS and Treasury Department participated in their development.

LIST OF SUBJECTS IN 26 CFR PART 1

[18] Income taxes, Reporting and recordkeeping requirements.

ADOPTION OF AMENDMENTS TO THE REGULATIONS

[19] Accordingly, 26 CFR part 1 is amended as follows:

PART 1 -- INCOME TAXES

Paragraph 1. The authority for part 1 continues to read in part as follows:

Authority: 26 U.S.C. 7805. * * *

Par. 2. Section 1.482-0 is amended by revising the entries for section 1.482-7(c) and (j) to read as follows:

SECTION 1.482-0 OUTLINE OF REGULATIONS UNDER 482.

* * * * *

SECTION 1.482-7 SHARING OF COSTS.

* * * * *

(c) Participant.

 

(1) In general.

 

(2) Treatment of a controlled taxpayer that is not a controlled

 

participant.

 

(i) In general.

 

(ii) Example.

 

(3) Treatment of consolidated group.

 

* * * * *

 

(j) Administrative requirements.

 

(1) In general.

 

(2) Documentation.

 

(i) Requirements.

 

(ii) Coordination with penalty regulation.

 

(3) Reporting requirements.

* * * * *

Par. 3. Section 1.482-7 is amended as follows:

a. By revising paragraph (c)(1)(i).

 

b. By adding paragraph (c)(1)(iv).

 

c. By removing paragraphs (c)(2) and (c)(3) and redesignating

 

paragraphs (c)(4) and (c)(5) as paragraphs (c)(2) and (c)(3),

 

respectively.

 

d. By revising newly designated paragraph (c)(2)(ii).

 

e. By adding a sentence after the second sentence in paragraph

 

(f)(3)(ii).

 

f. By revising Example 8 of paragraph (f)(3)(iii)(E).

 

g. By redesignating the text of paragraph (j)(2) following the

 

heading

 

as paragraph (j)(2)(i) and adding a heading for newly designated

 

paragraph (j)(2)(i).

 

h. By removing the language "(j)(2)" and adding "(j)(2)(i)" in its

 

place in the first sentence of newly designated paragraph (j)(2)(i).

 

i. By adding a paragraph (j)(2)(ii).

The additions and revisions read as follows:

SECTION 1.482-7 SHARING OF COSTS.

* * * * *

(c) * * * (1) * * *

(i) Reasonably anticipates that it will derive benefits from the use of covered intangibles;

* * * * *

(iv) The following example illustrates paragraph (c)(1)(i) of this section:

EXAMPLE. Foreign Parent (FP) is a foreign corporation

 

engaged in the extraction of a natural resource. FP has a U.S.

 

subsidiary (USS) to which FP sells supplies of this resource for

 

sale in the United States. FP enters into a cost sharing

 

arrangement with USS to develop a new machine to extract the

 

natural resource. The machine uses a new extraction process

 

that will be patented in the United States and in other

 

countries. The cost sharing arrangement provides that USS will

 

receive the rights to use the machine in the extraction of the

 

natural resource in the United States, and FP will receive the

 

rights in the rest of the world. This resource does not,

 

however, exist in the United States. Despite the fact that USS

 

has received the right to use this process in the United States,

 

USS is not a qualified participant because it will not derive a

 

benefit from the use of the intangible developed under the cost

 

sharing arrangement.

(2) * * *

(ii) EXAMPLE. The following example illustrates this paragraph (c)(2):

EXAMPLE. (i) U.S. Parent (USP), one foreign subsidiary

 

(FS), and a second foreign subsidiary constituting the group's

 

research arm (R+D) enter into a cost sharing agreement to

 

develop manufacturing intangibles for a new product line A. USP

 

and FS are assigned the exclusive rights to exploit the

 

intangibles respectively in the United States and the rest of

 

the world, where each presently manufactures and sells various

 

existing product lines. R+D is not assigned any rights to

 

exploit the intangibles. R+D's activity consists solely in

 

carrying out research for the group. It is reliably projected

 

that the shares of reasonably anticipated benefits of USP and FS

 

will be 66 2/3% and 33 1/3%, respectively, and the parties'

 

agreement provides that USP and FS will reimburse 66 2/3% and 33

 

1/3%, respectively, of the intangible development costs incurred

 

by R+D with respect to the new intangible.

(ii) R+D does not qualify as a controlled participant

 

within the meaning of paragraph (c) of this section, because it

 

will not derive any benefits from the use of covered

 

intangibles. Therefore, R+D is treated as a service provider

 

for purposes of this section and must receive arm's length

 

consideration for the assistance it is deemed to provide to USP

 

and FS, under the rules of section 1.482-4(f)(3)(iii). Such

 

consideration must be treated as intangible development costs

 

incurred by USP and FS in proportion to their shares of

 

reasonably anticipated benefits (i.e., 66 2/3% and 33 1/3%,

 

respectively). R+D will not be considered to bear any share of

 

the intangible development costs under the arrangement.

* * * * *

(f) * * *

(3) * * *

(ii) * * * If a controlled participant transfers covered intangibles to another controlled taxpayer, such participant's benefits from the transferred intangibles must be measured by reference to the transferee's benefits, disregarding any consideration paid by the transferee to the controlled participant (such as a royalty pursuant to a license agreement). * * *

(iii) * * *

(E) * * *

EXAMPLE 8. U.S. Parent (USP), Foreign Subsidiary 1 (FS1)

 

and Foreign Subsidiary 2 (FS2) enter into a cost sharing

 

arrangement to develop computer software that each will market

 

and install on customers' computer systems. The participants

 

divide costs on the basis of projected sales by USP, FS1, and

 

FS2 of the software in their respective geographic areas.

 

However, FS1 plans not only to sell but also to license the

 

software to unrelated customers, and FS1's licensing income

 

(which is a percentage of the licensees' sales) is not counted

 

in the projected benefits. In this case, the basis used for

 

measuring the benefits of each participant is not the most

 

reliable because all of the benefits received by participants

 

are not taken into account. In order to reliably determine

 

benefit shares, FS1's projected benefits from licensing must be

 

included in the measurement on a basis that is the same as that

 

used to measure its own and the other participants' projected

 

benefits from sales (e.g., all participants might measure their

 

benefits on the basis of operating profit).

* * * * *

(j) * * *

(2) DOCUMENTATION -- (i) REQUIREMENTS. * * *

(ii) COORDINATION WITH PENALTY REGULATION. The documents described in paragraph (j)(2)(i) of this section will satisfy the principal documents requirement under section 1.6662-6(d)(2)(iii)(B) with respect to a qualified cost sharing arrangement.

* * * * *

Margaret Milner Richardson

 

Commissioner of Internal Revenue

Approved: May 2, 1996

 

Leslie Samuels

 

Assistant Secretary of the Treasury
DOCUMENT ATTRIBUTES
  • Institutional Authors
    Internal Revenue Service
  • Cross-Reference
    IL-372-88; for a summary, see Tax Notes, Jan. 27, 1992, p. 374.

    T.D. 8632; for a summary, see Tax Notes, Dec. 25, 1995, p. 1592; for

    the full text, see 95 TNT 247-4 or H&D, Dec. 20, 1995, p. 4627.

    This document appeared in TNT as 96 TNT 93-8 and in the AccServ &

    Microfiche as Doc 96-13943 (10 pages).
  • Code Sections
  • Subject Area/Tax Topics
  • Index Terms
    related-party allocations
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 96-14383 (3 pages)
  • Tax Analysts Electronic Citation
    96 TNT 99-67
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