Credit for Increasing Research Activities, 29596-29607 [05-10247]
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29596
Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Rules and Regulations
of each month, an institution that promotes
the payment of overdrafts on July 1, 2006
must provide the disclosures required by
§ 230.11(a)(1) of this part on subsequent
periodic statements for that consumer
beginning with the statement reflecting the
period from July 16, 2006 through August 15,
2006. Only depository institutions that
promote the payment of overdrafts in an
advertisement on or after July 1, 2006 must
provide disclosures on periodic statements
under § 230.11(a)(1) of this part.
(a)(5) Acquired accounts
1. Examples. As provided in § 230.11(a)(5)
of this part, an institution that acquires
deposit accounts through merger or
acquisition must provide the disclosures
required by paragraph (a)(1) of this section
for the first statement period that begins after
the institution promotes the payment of
overdrafts in an advertisement that applies to
the acquired account. If the acquiring
institution does not advertise the payment of
overdrafts, or the advertisement does not
apply to the acquired accounts, the
institution need not provide the disclosures
required by § 230.11(a)(1) of this part for the
acquired accounts even if the depository
institution that previously held the accounts
advertised the payment of overdrafts with
respect to those accounts.
(b) Advertising Disclosures in Connection
With Overdraft Services
1. Examples of institutions promoting the
payment of overdrafts. A depository
institution would be required to include the
advertising disclosures in § 230.11(b)(1) of
this part if the institution:
i. Promotes the institution’s policy or
practice of paying overdrafts (unless the
service would be subject to the Board’s
Regulation Z (12 CFR part 226)). This
includes advertisements using print media
such as newspapers or brochures, telephone
solicitations, electronic mail, or messages
posted on an Internet site. (But see
§ 230.11(b)(2) of this part for communications
that are not subject to the additional
advertising disclosures);
ii. Includes a message on a periodic
statement informing the consumer of an
overdraft limit or the amount of funds
available for overdrafts. For example, an
institution that includes a message on a
periodic statement informing the consumer
of a $500 overdraft limit or that the consumer
has $300 remaining on the overdraft limit, is
promoting an overdraft service.
iii. Discloses an overdraft limit or includes
the dollar amount of an overdraft limit in a
balance disclosed on an automated system,
such as a telephone response machine, ATM
screen or the institution’s Internet site. (See,
however, § 230.11(b)(3) of this part.).
2. Transfer services. The overdraft services
covered by § 230.11(b)(1) of this part do not
include a service providing for the transfer of
funds from another deposit account of the
consumer to permit the payment of items
without creating an overdraft, even if a fee is
charged for the transfer.
3. Electronic media. The exception for
advertisements made through broadcast or
electronic media, such as television or radio,
does not apply to advertisements posted on
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an institution’s Internet site, on an ATM
screen, provided on telephone response
machines, or sent by electronic mail.
4. Fees. The fees that must be disclosed
under § 230.11(b)(1) of this part include peritem fees as well as interest charges, daily or
other periodic fees, and fees charged for
maintaining an account in overdraft status,
whether the overdraft is by check or by other
means. The fees also include fees charged
when there are insufficient funds because
previously deposited funds are subject to a
hold or are uncollected. The fees do not
include fees for transferring funds from
another account to avoid an overdraft, or fees
charged when the institution has previously
agreed in writing to pay items that overdraw
the account and the service is subject to the
Board’s Regulation Z, 12 CFR part 226.
5. Categories of transactions. An
exhaustive list of transactions is not required.
Disclosing that a fee may be imposed for
covering overdrafts ‘‘created by check, inperson withdrawal, ATM withdrawal, or
other electronic means’ would satisfy the
requirements of § 230.11(b)(1)(ii) of this part
where the fee may be imposed in these
circumstances. See comment 4(b)(4)–5 of this
part.
6. Time period to repay. If a depository
institution reserves the right to require a
consumer to pay an overdraft immediately or
on demand instead of affording consumers a
specific time period to establish a positive
balance in the account, an institution may
comply with § 230.11(b)(1)(iii) of this part by
disclosing this fact.
7. Circumstances for nonpayment. An
institution must describe the circumstances
under which it will not pay an overdraft. It
is sufficient to state, as applicable: ‘‘Whether
your overdrafts will be paid is discretionary
and we reserve the right not to pay. For
example, we typically do not pay overdrafts
if your account is not in good standing, or
you are not making regular deposits, or you
have too many overdrafts.’’
8. Advertising an account as ‘‘free.’’ If the
advertised account-related service is an
overdraft service subject to the requirements
of § 230.11(b)(1) of this part, institutions
must disclose the fee or fees for the payment
of each overdraft, not merely that a cost is
associated with the overdraft service, as well
as other required information. Compliance
with comment 8(a)–10.v. is not sufficient.
By order of the Board of Governors of the
Federal Reserve System, May 19, 2005.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 05–10348 Filed 5–23–05; 8:45 am]
BILLING CODE 6210–01–P
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9205]
RIN 1545–BE17
Credit for Increasing Research
Activities
Internal Revenue Service (IRS),
Treasury.
ACTION: Temporary regulations.
AGENCY:
SUMMARY: This document contains
temporary regulations relating to the
computation and allocation of the credit
for increasing research activities for
members of a controlled group of
corporations or a group of trades or
businesses under common control.
These temporary regulations reflect
changes made to section 41 by the
Revenue Reconciliation Act of 1989
(1989 Act), which introduced the
current computational regime for the
credit, and the Small Business Job
Protection Act of 1996, which
introduced the alternative incremental
research credit. The text of the
temporary regulations also serves as the
text of the proposed regulations set forth
in the notice of proposed rulemaking on
this subject in the Proposed Rules
section in this issue of the Federal
Register.
DATES: Effective Date: These regulations
are effective May 24, 2005.
Applicability Dates: For dates of
applicability see §§ 1.41–6T(j) and 1.41–
8T(b)(5).
FOR FURTHER INFORMATION CONTACT:
Nicole R. Cimino (202) 622–3120 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On July 29, 2003, the Treasury
Department and the IRS published in
the Federal Register (68 FR 44499)
proposed amendments to the
regulations under section 41(f) (REG–
133791–02) (the 2003 proposed
regulations) relating to the computation
and allocation of the credit for
increasing research activities (research
credit) under section 41 for members of
a controlled group of corporations or a
group of trades or businesses under
common control (controlled groups).
The 2003 proposed regulations
withdrew the proposed regulations
published in the Federal Register on
January 4, 2000 (65 FR 258) (REG–
105606–99) (the 2000 proposed
regulations). In general, the 2000
proposed regulations required
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controlled groups to compute a group
credit and then to allocate that group
credit among the members of the
controlled group. The allocation of the
group credit under the 2000 proposed
regulations was based on the relative
increases of each member’s qualified
research expenses (QREs) over a base
amount that was computed by
multiplying that member’s most recent
average annual gross receipts by the
controlled group’s fixed-base
percentage.
Although the 2003 proposed
regulations did not modify the rules
relating to the computation of the group
credit, the 2003 proposed regulations
did modify the rules relating to the
allocation of the group credit among the
members of the controlled group. In
particular, the 2003 proposed
regulations allocated the group credit in
proportion to the credit, if any, that a
member of a controlled group would be
entitled to claim if it were not a member
of a controlled group (the stand-alone
entity credit). In addition, based on the
comments to the 2000 proposed
regulations, the 2003 proposed
regulations did not propose special
rules that would apply to consolidated
groups that were members of a
controlled group. A public hearing on
the 2003 proposed regulations was held
on November 13, 2003. After
considering the written comments and
the statements at the public hearing, the
Treasury Department and the IRS are
withdrawing the 2003 proposed
regulations and are issuing temporary
regulations and proposed regulations
cross-referencing the temporary
regulations. In substantial part, the
temporary regulations retain the rules
contained in the 2003 proposed
regulations with certain modifications
discussed below.
Summary of Comments and
Explanation of Provisions
Computation of the Group Credit
Section 41(f)(1)(A)(i) provides that
‘‘all members of the same controlled
group of corporations shall be treated as
a single taxpayer’’ in determining the
amount of the research credit under
section 41. Section 41(f)(1)(B)(i)
provides a similar rule for a group of
trades or businesses under common
control. The 2003 proposed regulations
applied the section 41 computational
rules on an aggregate basis for purposes
of determining the amount of the group
credit. Additionally, a controlled group
would have been treated as a start-up
company for purposes of determining
the group’s fixed-base percentage only if
each member of the group qualified as
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a start-up company. Therefore, a
controlled group with only two
members would have been subject to the
start-up rules if one member of the
group had QREs but no gross receipts in
1983 and the other member had gross
receipts but no QREs in 1983.
Commentators generally agreed with
the proposed rules for computing the
group credit. Commentators were
concerned, however, with perceived
ambiguities related to the application of
the start-up company rules to a
controlled group. For example,
commentators asked that the regulations
clarify what a controlled group’s startup date is if all the members of the
group are start-up companies with
different start-up dates.
These temporary regulations retain
the rules in the 2003 proposed
regulations for the computation of the
group credit, except for the start-up
company rules. The temporary
regulations state that a controlled group
is treated as a start-up company for
purposes of computing the group credit
if (A) the first taxable year in which at
least one member of the group had gross
receipts and at least one member of the
group had QREs begins after December
31, 1983, or (B) there were fewer than
three taxable years beginning after
December 31, 1983, and before January
1, 1989, in which at least one member
of the group had gross receipts and at
least one member of the group had
QREs. Consistent with this approach,
the first taxable year in which a
controlled group has gross receipts for
purposes of the start-up company rules
is the first year in which at least one
member of the group has gross receipts.
Likewise, the first taxable year in which
a controlled group has QREs for
purposes of the start-up company rules
is the first year in which at least one
member of the group has QREs. The
Treasury Department and the IRS
believe that this approach is more
consistent with treating a controlled
group as a single taxpayer because a
controlled group with two members is
not subject to the start-up rules if one
member of the group had QREs but no
gross receipts in 1983 and the other
member had gross receipts but no QREs
in 1983. Additionally, the temporary
regulations specifically state that for
purposes of determining the fixed-base
percentage, the first taxable year after
December 31, 1993, for which a
controlled group has QREs is the first
taxable year in which at least one
member of the group has QREs.
Allocation of the Group Credit
Section 41(f)(1)(A)(ii) provides that
‘‘the [portion of the group] credit (if any)
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29597
allowable by this section to each such
member shall be its proportionate shares
of the qualified research expenses and
basic research payments giving rise to
the credit.’’ Section 41(f)(1)(B)(ii)
provides a similar rule for a group of
trades or businesses under common
control. The 2003 proposed regulations
apply these provisions by allocating the
group credit based on the relative
amounts of each individual member’s
stand-alone entity credit.
A number of commentators requested
changes to the method of allocating the
group credit contained in the 2003
proposed regulations. In general, these
comments reflected dissatisfaction
either with the stand-alone entity credit
method in the 2003 proposed
regulations or with any single,
prescribed method. Consequently,
commentators either proposed specific
alternatives or stated that final
regulations should allow members to
allocate the group credit using any
reasonable method. One commentator
advocated that a method that allocates
the group credit based on the relative
amounts of each member’s total QREs
(gross QREs method) is the only
allocation method permitted under the
statute. Another commentator urged the
Treasury Department and the IRS to
adopt an allocation method that, based
on techniques of differential calculus,
allocates the group credit based on the
marginal contribution to the group
credit of each member’s QREs for the
current year, QREs for the base years,
and gross-receipts for the base years, as
well as the controlled group’s fixed-base
percentage and the growth in gross
receipts for the controlled group
(marginal contribution method). Other
commentators suggested that no single
allocation method can appropriately
allocate the group credit in all cases;
therefore, members of a controlled
group should be permitted to use any
reasonable method to allocate the group
credit. For the reasons discussed below,
these temporary regulations generally
retain the stand-alone entity credit
method of the 2003 proposed
regulations with some modifications.
The preamble to the 2003 proposed
regulations sets out at length the reasons
why the Treasury Department and the
IRS believe that the allocation method
under section 41(f) should be based on
a group member’s QREs in excess of a
base amount. The stand-alone entity
credit method reflects the incremental
nature of the credit and also is
consistent with the Treasury
Department and the IRS’ view of the
purpose of section 41(f). As stated in the
preamble to the 2003 proposed
regulations:
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The legislative history to the research
credit, as originally enacted in 1981,
indicates that the group credit computation
and aggregation rules were enacted to ensure
that the research credit would be allowed
only for actual increases in research
expenditures. These aggregation rules were
intended to prevent taxpayers from creating
artificial increases in research expenditures
by shifting expenditures among commonly
controlled or otherwise related persons. H.
Rep. No. 97–201, 1981–3 C.B. (Vol. 2) 364,
and Sen. Rep. 97–144, 1981–3 C.B. (Vol. 2)
442. In effect, the group credit computation
rule serves as a cap on the maximum amount
of credit that the members of the group, in
the aggregate, may claim.
Prior to the 1989 Act, the research
credit was computed by multiplying the
credit rate by the excess of the
taxpayer’s current year QREs over the
taxpayer’s average QREs for the
preceding three years. Final regulations
issued in 1989, prescribing rules for the
allocation of the group credit prior to
the 1989 Act, allocated the group credit
based on what effectively would have
been each member’s stand-alone entity
credit (without giving effect to the
minimum base period amount in
computing each member’s stand-alone
entity credit). The 1989 Act significantly
modified the computation of the credit
while retaining the incremental
approach of the pre-1989 Act credit.
Congress did not indicate in either the
statute or the legislative history that
either the purpose or the application of
section 41(f) was being changed.
Although the phrase ‘‘increase in’’ in
sections 41(f)(1)(A)(ii) and 41(f)(1)(B)(ii)
was deleted by the 1989 Act, for the
reasons set out in the preamble to the
2003 proposed regulations, the Treasury
Department and the IRS concluded that
this change to the statute was intended
to reflect only the fact that a taxpayer’s
entitlement to the research credit after
the 1989 Act no longer depended on
whether the taxpayer had increased its
current year QREs over its average QREs
for the preceding three years.
With respect to the alternative
allocation methods suggested by the
commentators, the Treasury Department
and the IRS conclude that these
methods are inconsistent with the
purpose of section 41 generally and
section 41(f) specifically. A gross QREs
method is at odds fundamentally with
the incremental nature of the research
credit, and the Treasury Department and
the IRS continue to believe that neither
the statute nor the legislative history
suggests that Congress intended that the
allocation of the group credit be based
solely on a member’s total QREs without
reference to whether those QREs exceed
a base amount.
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Similarly, the Treasury Department
and the IRS do not believe that the
suggested marginal contribution method
is consistent with section 41(f). The
Treasury Department and the IRS
recognize the potential for that method
to more closely associate the amount of
group credit allocated to a particular
member to the contributions of that
member’s QREs for the current year,
gross receipts for the current year, QREs
for the base years, and gross receipts for
the base years to the amount of the
group credit. The marginal contribution
method proposed, however, has
significant flaws that would change the
function of the aggregation rules in
section 41(f) in a manner that the
Treasury Department and the IRS do not
believe was intended by Congress. First,
the method would allow allocations of
credit to members that have no QREs, a
result the Treasury Department and the
IRS believe is contrary to the statutory
directive to allocate the group credit in
proportion to a member’s share of QREs
giving rise to the credit. Second, the
method uses different formulas for
groups that are affected by special rules,
such as the maximum fixed-base
percentage rule. As a result, it is
possible that a member of a group that
increases its QREs by a relatively small
amount, that is enough to make the
group subject to a special rule, could be
allocated proportionately less credit
than if the member had not increased its
QREs. Finally, by relying on the group’s
gross receipts and the group’s fixed-base
percentage, the marginal contribution
method appears to encourage planning
and shifting among group members, a
result that is inconsistent with the
purpose of section 41(f). The Treasury
Department and the IRS believe that an
appropriate allocation method should
encourage a member to focus on
incrementally increasing its own
research efforts.
The Treasury Department and the IRS
also decline to adopt an allocation rule
that would permit the members of a
controlled group to use any reasonable
method to allocate the group credit.
Neither the statute nor the legislative
history indicates that Congress intended
the allocation of the group credit to be
based on any reasonable method
selected by a member individually or
the controlled group collectively.
Furthermore, a rule permitting the use
of any reasonable method to allocate the
credit could result in continuing
controversy. As discussed in the
preamble to the 2003 proposed
regulations, the Treasury Department
and the IRS believe that the purpose of
section 41(f) is undermined if the
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members of a controlled group use
different allocation methods to claim
more than 100 percent of the group
credit. The Treasury Department and
the IRS believe that a single, prescribed
method is necessary to preclude such
potential for abuse.
Accordingly, the Treasury Department
and the IRS continue to believe that the
purposes of the research credit statute
generally and the provisions of section
41(f) specifically are best furthered by
an allocation method that allocates the
group credit based on each member’s
stand-alone entity credit.
Special Allocation Rule for Excess
Group Credit Situations
Under the 2003 proposed regulations,
if the group credit exceeded the sum of
the stand-alone entity credits of the
members of a controlled group, the
members with stand-alone entity credits
would be entitled to the entire group
credit. In addition, if no member of the
controlled group had a stand-alone
entity credit, none of the group credit
would be allocated to the members of
the controlled group.
To address these situations, these
temporary regulations modify the
allocation method of the 2003 proposed
regulations in cases in which the group
credit exceeds the sum of the members’
stand-alone entity credits, including
cases in which no member has a standalone entity credit. If the group credit
exceeds the sum of the members’ standalone entity credits, each member is
allocated an amount of group credit
equal to that member’s stand-alone
entity credit. The remaining, or excess,
amount of group credit is then allocated
among all the members of the controlled
group based on the ratio of an
individual member’s QREs to the sum of
all the members’ QREs.
Computation of Stand-Alone Entity
Credits
Commentators questioned whether
members must use the same method,
i.e., the method described in section
41(a) (regular credit method) or the
alternative incremental research credit
(AIRC) method described in section
41(c)(4), in computing the stand-alone
entity credit as that used to compute the
group credit. The Treasury Department
and the IRS do not believe that requiring
taxpayers to be consistent in the method
used to compute the group credit and
the stand-alone entity credit would
serve the purpose of section 41. Section
41(f) was intended to encourage
taxpayers to increase their individual
research efforts to maximize the group
credit and thus their share of the group
credit. The Treasury Department and
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the IRS believe that allowing the
members to compute their stand-alone
entity credits without regard to the
method used to compute the group
credit will encourage increasing
research efforts. Thus, the temporary
regulations provide that a member’s
stand-alone entity credit must be
computed using whichever method
results in the greater stand-alone entity
credit for that member, without regard
to the method used to compute the
group credit.
Commentators also pointed out that
the computation of the stand-alone
entity credits under the 2003 proposed
regulations would no longer require the
intra-group transaction rules of § 1.41–
6(e) (re-designated in these temporary
regulations as § 1.41–6(i)) to apply.
Although the intent of the stand-alone
entity credit rule is to compute a credit
that is similar to that to which a member
would be entitled if there were no
research credit aggregation rules for
controlled groups, the intent was not to
render the intra-group transaction rules
or the acquisition/disposition rules of
section 41(f)(3) inapplicable. Therefore,
these temporary regulations specifically
provide that taxpayers must apply the
intra-group transaction rules and the
acquisition/disposition rules when
computing the stand-alone entity
credits. For example, to the extent that
a member’s gross receipts and QREs
have been reduced for purposes of
computing the group credit as a result
of the application of the acquisition/
disposition rules, the member’s standalone entity credit must be computed
using the same gross receipts and QREs.
Special Allocation Rule for
Consolidated Groups
The preamble to the 2003 proposed
regulations states that the Treasury
Department and the IRS considered
comments requesting a special
allocation rule for consolidated groups,
but decided not to adopt such a rule.
Several commentators further
commented on that issue. One
commentator suggested that if the group
credit were allocated in proportion to
QREs, no special consolidated group
rule would be necessary. Given that this
commentator’s proposed allocation
method is not the one adopted in these
temporary regulations, the Treasury
Department and the IRS are not
persuaded that a special consolidated
group rule is unnecessary. Another
commentator suggested that a
consolidated group should be treated as
a single member of a controlled group
for purposes of allocating the group
credit and that the failure to treat the
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consolidated group in such a manner
would result in abuse.
The Treasury Department and the IRS
believe that treating a consolidated
group as a single member of a controlled
group for purposes of allocating the
group credit is consistent with the
treatment of a consolidated group as a
single taxpayer under a number of the
consolidated return regulations.
Therefore, these temporary regulations
provide that, for purposes of allocating
the group credit, a consolidated group
whose members are members of a
controlled group is treated as a single
member of the controlled group.
Accordingly, a consolidated group
whose members are members of a
controlled group is treated as a single
member of the controlled group and a
single stand-alone entity credit is
computed for the consolidated group. If
the consolidated group is the only
member of the controlled group, the
stand-alone entity credit computed for
the consolidated group is equal to the
group credit.
The portion of the group credit
allocated to a consolidated group must
be allocated among the members of the
consolidated group. The Treasury
Department and the IRS believe that the
method of allocating among the
members of the consolidated group the
portion of the group credit allocated to
the consolidated group should be no
different than the method of allocating
the group credit among members of the
controlled group. Therefore, a standalone entity credit is computed for each
member of the consolidated group, and
the portion of the group credit allocated
to the consolidated group is allocated
among the members of the consolidated
group in proportion to the stand-alone
entity credits of the members of the
consolidated group. One commentator
argued that separately computing the
stand-alone credit for each member of a
consolidated group would be
prohibitively burdensome. The Treasury
Department and the IRS, however, do
not believe that computing a standalone entity credit for each member of
a consolidated group imposes a greater
burden than computing a stand-alone
entity credit for a corporation that is not
a member of a consolidated group.
Moreover, providing a rule for allocating
the portion of the group credit allocated
to a consolidated group among its
members that is different than the
method used for allocating the
controlled group credit would create
additional administrative complexity
that seems unwarranted.
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Alternative Incremental Research Credit
Section 41(c)(4) provides an election
to determine the research credit using
the AIRC computation. Section
41(c)(4)(B) provides that the election to
use the AIRC applies to all succeeding
taxable years unless revoked with the
consent of the Secretary. Many issues
have arisen regarding how the AIRC
election is made in the case of a
consolidated group and in the case of a
controlled group, all members of which
are not included on a single
consolidated federal income tax return.
These issues include: (1) How is an
AIRC election made by members of a
controlled group for purposes of
computing the group credit under
section 41(f)(1); (2) what happens when
a controlled group has made an AIRC
election and a member leaves the group
or a member that has not made an AIRC
election enters the group; (3) what
happens if a member that has made an
AIRC election joins a controlled group
that has not made an AIRC election; and
(4) when will a request to revoke an
AIRC election be granted.
Generally, the Treasury Department
and the IRS assume that taxpayers will
elect to use the AIRC method if the
AIRC method provides more credit than
the regular method, or if a taxpayer does
not have the books and records
necessary to compute the base amount
under the regular method. Once a
taxpayer elects the AIRC method, the
Treasury Department and the IRS
believe that the AIRC method will
continue to be the better method in the
future as well, unless the taxpayer has
a substantial change in its trade or
business, such as the acquisition or
disposition of an entire trade or
business. If such a substantial change
occurs, the Treasury Department and
the IRS believe that it is appropriate to
allow the taxpayer to revoke its AIRC
election. The IRS has received many
requests for consent to revoke AIRC
elections from taxpayers in such
situations. To reduce the burden on
taxpayers, provide simplification, and
ease administrative burden, the
Treasury Department and the IRS have
determined that it is appropriate to
grant automatic consent to revoke an
AIRC election on a prospective basis in
situations in which a taxpayer makes
the revocation on an original return. The
Treasury Department and the IRS do not
believe, however, that allowing an AIRC
election or revocation on an amended
return furthers the goal of simplification
and ease of administration.
Therefore, these temporary
regulations provide that a taxpayer that
has made an AIRC election is deemed to
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have requested and been granted
consent to revoke the election if the
taxpayer completes the portion of Form
6765, ‘‘Credit for Increasing Research
Activities,’’ relating to the regular credit
and attaches the completed form to the
taxpayer’s timely filed original return
for the year to which the revocation
applies. This provision is similar to the
provisions in the existing regulations for
making an AIRC election, which require
the taxpayer to complete the portion of
Form 6765 relating to the AIRC and
attach the completed form to the
taxpayer’s timely filed original return
for the year to which the election
applies. Once an election/revocation is
made for a taxable year, the taxpayer
may not change the election/revocation
on an amended return.
The temporary regulations provide
special rules for controlled groups
under section 41(f)(1) (in which one or
more of the members do not join in
filing a consolidated return). As
discussed above, in this situation many
questions have arisen regarding which
members of a controlled group must
make (or revoke) an AIRC election to
have a valid election (or revocation) for
the controlled group. Attempting to
track elections across members of a
controlled group, in which one or more
of the members do not join in filing a
consolidated return would create
additional administrative complexity
and increase the potential for
controversy. Thus, to reduce the
additional administrative complexity
created by the additional computation,
these temporary regulations provide that
in the case of a controlled group, all the
members of which are not included on
a single consolidated return, the
designated member must make (or
revoke) an AIRC election on behalf of
the members of the group. The election
(or revocation) by the designated
member is binding on all of the
members of the group for the taxable
year to which the election (or
revocation) relates. The temporary
regulations provide that the designated
member is that member of the group
that is allocated the greatest amount of
the group credit. In the event the
members of a group compute the group
credit using different methods (either
the regular method or the AIRC method)
and at least two members of the group
qualify as the designated member, the
designated member is the member that
computes the group credit using the
method that yields the greater group
credit. The Treasury Department and
the IRS believe that these rules will
simplify the election and revocation of
the AIRC method. Furthermore, granting
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17:15 May 23, 2005
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automatic consent to revoke an AIRC
election also simplifies acquisitions and
dispositions of members of controlled
groups. For example, when a new
member joins a group, the member must
use the method used by the controlled
group. In the taxable year after a
member leaves a group, the member is
free to use either method, assuming the
member has not joined another
controlled group. If all members of a
controlled group are members of a
single consolidated group, the AIRC
election is made by the agent of the
consolidated group, determined
pursuant to the rules of § 1.1502–77.
Effective Date
The preamble to the 2003 proposed
regulations stated that the Treasury
Department and the IRS intended to
make those regulations effective for
taxable years beginning on or after the
date that final regulations are published
in the Federal Register. The preamble to
the 2003 proposed regulations also
addressed the limited application of
final regulations to taxable years prior to
that effective date to prevent abuse.
Because the Treasury Department and
the IRS have decided to retain the
general rules for the computation and
allocation of the group credit contained
in the 2003 proposed regulations, with
the modifications described above, these
regulations are being issued in
temporary form and will be effective for
taxable years ending on or after May 24,
2005.
For taxable years prior to those
covered by these temporary regulations,
a taxpayer generally may use any
reasonable method of computing and
allocating the group credit. For the
reasons set out in the preamble to the
2003 proposed regulations, the Treasury
Department and the IRS believe that
these temporary regulations should be
retroactive in limited circumstances to
prevent abuse. Accordingly, paragraph
(b) of these temporary regulations,
relating to the computation of the group
credit, and paragraph (c) of these
temporary regulations, relating to the
allocation of the group credit, apply to
taxable years ending on or after
December 29, 1999, if the members of a
controlled group, as a whole, claimed
more than 100 percent of the amount
that would be allowable under
paragraph (b). In the case of a controlled
group whose members have different
taxable years and whose members use
inconsistent methods of allocation, the
members of the controlled group are
deemed to have, as a whole, claimed
more than 100 percent of the amount
that would be allowable under
paragraph (b).
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Since the issuance of the 2003
proposed regulations, questions have
arisen regarding what constitutes a
reasonable method of allocating the
group credit. Any allocation method
used by a member of a controlled group
that is consistent with either the 2000
proposed regulations, the 2003
proposed regulations, these temporary
regulations, or subsequent final
regulations will be accepted by the IRS
as reasonable if the same allocation
method was used by all members of the
controlled group. In addition, for
taxable years ending before December
29, 1999, any such method will be
accepted by the IRS as reasonable
regardless of the allocation method or
methods used by other members of the
controlled group and regardless of
whether the members of the controlled
group, in the aggregate, claimed more
than 100 percent of the group credit.
Although the reasonableness of any
other allocation method may depend on
the particular facts and circumstance of
that taxpayer, in general, the IRS, solely
for purposes of what constitutes a
reasonable method of allocating the
group credit for taxable years ending
before December 29, 1999, will treat as
reasonable a gross QREs method even if
the members of the controlled group use
inconsistent allocation methods to
claim, in the aggregate, more than 100
percent of the group credit. Such
treatment of a gross QREs method as
reasonable for such years is for
administrative convenience only.
Special Analyses
It has been determined that this
Treasury Department decision is not a
significant regulatory action as defined
in Executive Order 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) does not apply
to these regulations. For the
applicability of the Regulatory
Flexibility Act (5 U.S.C. chapter 6) refer
to the Special Analyses section of the
preamble to the cross-reference notice of
the proposed rulemaking published in
the Proposed Rules section in this issue
of the Federal Register. Pursuant to
section 7805(f) of the Code, these
temporary regulations will be submitted
to the Chief Counsel for Advocacy of the
Small Business Administration for
comment on their impact on small
business.
Drafting Information
The principal author of these
regulations is Nicole R. Cimino, Office
of Associate Chief Counsel
(Passthroughs and Special Industries).
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(1) In general.
(2) Time and manner of election.
(3) Revocation.
(4) Special rules for controlled groups.
(5) Effective date.
However, personnel from the IRS and
Treasury Department participated in
their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
§ 1.41–6
[Removed]
Adoption of Amendments to the
Regulations
Par. 3. Section 1.41–6 is removed.
I Par. 4. Section 1.41–6T is added to
read as follows:
Accordingly, 26 CFR part 1 is amended
as follows:
§ 1.41–6T Aggregation of expenditures
(temporary).
PART 1—INCOME TAXES
(a) Controlled group of corporations;
trades or businesses under common
control—(1) In general. To determine
the amount of research credit (if any)
allowable to a trade or business that at
the end of its taxable year is a member
of a controlled group, a taxpayer must—
(i) Compute the group credit in the
manner described in paragraph (b) of
this section; and
(ii) Allocate the group credit among
the members of the group in the manner
described in paragraph (c) of this
section.
(2) Consolidated groups. For special
rules relating to consolidated groups,
see paragraph (d) of this section.
(3) Definitions. For purposes of this
section:
(i) Trade or business. A trade or
business is a sole proprietorship, a
partnership, a trust, an estate, or a
corporation that is carrying on a trade or
business (within the meaning of section
162). Any member of a commonly
controlled group shall be deemed to be
carrying on a trade or business if any
other member of that group is carrying
on any trade or business.
(ii) Controlled group. The terms group
and controlled group mean a controlled
group of corporations, as defined in
section 41(f)(5), or a group of trades or
businesses under common control. For
rules for determining whether trades or
businesses are under common control,
see § 1.52–1 (b) through (g).
(iii) Group credit. The term group
credit means the research credit (if any)
allowable to a controlled group.
(iv) Consolidated group. The term
consolidated group has the meaning set
forth in § 1.1502–1(h).
(v) Credit year. The term credit year
means the taxable year for which the
member is computing the credit.
(b) Computation of the group credit—
(1) In general. All members of a
controlled group are treated as a single
taxpayer for purposes of computing the
research credit. The group credit is
computed by applying all of the section
41 computational rules on an aggregate
basis. All members of a controlled group
must use the same method of
computation, either the method
I
I
Paragraph 1. The authority citation for
part 1 is amended by adding an entry in
numerical order to read, in part, as
follows:
I
Authority: 26 U.S.C. 7805 * * *
Section 1.41–6T also issued under 26
U.S.C. 1502. * * *
Par. 2. In § 1.41–0, the table of contents
is amended by removing the entries for
§ 1.41–6 and § 1.41–8 and adding entries
for § 1.41–6T and § 1.41–8T to read as
follows:
I
§ 1.41–0
*
Table of contents.
*
*
*
*
§ 1.41–6T Aggregation of expenditures
(temporary).
(a) Controlled groups of corporations;
trades or businesses under common control.
(1) In general.
(2) Consolidated groups.
(3) Definitions.
(b) Computation of the group credit.
(1) In general.
(2) Start-up companies.
(c) Allocation of the group credit.
(1) In general.
(2) Stand-alone entity credit.
(d) Special rules for consolidated groups.
(1) In general.
(2) Start-up company status.
(3) Special rule for allocation of group
credit among consolidated group members.
(e) Examples.
(f) For taxable years beginning before
January 1, 1990.
(g) Tax accounting periods used.
(1) In general.
(2) Special rule when timing of research is
manipulated.
(h) Membership during taxable year in
more than one group.
(i) Intra-group transactions.
(1) In general.
(2) In-house research expenses.
(3) Contract research expenses.
(4) Lease payments.
(5) Payment for supplies.
(j) Effective date.
*
*
*
*
*
§ 1.41–8T Special rules for taxable years
ending on or after January 3, 2001
(temporary).
(a) Alternative incremental credit.
(b) Election.
VerDate jul<14>2003
17:15 May 23, 2005
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29601
described in section 41(a) or the
alternative incremental research credit
(AIRC) method described in section
41(c)(4), in computing the group credit
for a credit year.
(2) Start-up companies—(i) In general.
For purposes of computing the group
credit, a controlled group is treated as
a start-up company for purposes of
section 41(c)(3)(B)(i) if—
(A) The first taxable year in which at
least one member of the group had gross
receipts and at least one member of the
group had qualified research
expenditures (QREs) begins after
December 31, 1983; or
(B) There were fewer than 3 taxable
years beginning after December 31,
1983, and before January 1, 1989, in
which at least one member of the group
had gross receipts and at least one
member of the group had QREs.
(ii) Example. The following example
illustrates the principles of paragraph
(b)(2)(i) of this section:
Example. A, B, and C, all of which are
calendar year taxpayers, are members of a
controlled group. During the 1983 taxable
year, A had QREs, but no gross receipts; B
had gross receipts, but no QREs; and C had
no QREs or gross receipts. The 1984 taxable
year was the first taxable year for which each
of A, B, and C had both QREs and gross
receipts. Because the first taxable year for
which each of A, B, and C had both QREs
and gross receipts began after December 31,
1983, each of A, B, and C is a start-up
company under section 41(c)(3)(B)(i) and
each is a start-up company for purposes of
computing the stand-alone entity credit.
During the 1983 taxable year, at least one
member of the group, A, had QREs and at
least one member of the group, B, had gross
receipts, thus, the group had both QREs and
gross receipts in 1983. Therefore, the
controlled group is not a start-up company
because the first taxable year for which the
group had both QREs and gross receipts did
not begin after December 31, 1983.
(iii) First taxable year after December
31, 1993, for which the controlled group
had QREs. In the case of a controlled
group that is treated as a start-up
company under section 41(c)(3)(B)(i)
and paragraph (b)(2)(i) of this section,
for purposes of determining the group’s
fixed-base percentage under section
41(c)(3)(B)(ii), the first taxable year after
December 31, 1993, for which the group
has QREs is the first taxable year in
which at least one member of the group
has QREs.
(iv) Example. The following example
illustrates the principles of paragraph
(b)(2)(iii) of this section:
Example. D, E, and F, all of which are
calendar year taxpayers, are members of a
controlled group. The group is treated as a
start-up company under section 41(c)(3)(B)(i)
and paragraph (b)(2)(i) of this section. The
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first taxable year after December 31, 1993, for
which D had QREs was 1994. The first
taxable year after December 31, 1993, for
which E had QREs was 1995. The first
taxable year after December 31, 1993, for
which F had QREs was 1996. Because the
1994 taxable year was the first taxable year
after December 31, 1993, for which at least
one member of the group, D, had QREs, for
purposes of determining the group’s fixed-
based percentage under section
41(c)(3)(B)(ii), the 1994 taxable year was the
first taxable year after December 31, 1993, for
which the group had QREs.
(c) Allocation of the group credit—(1)
In general. (i) To the extent the group
credit (if any) computed under
paragraph (b) of this section does not
exceed the sum of the stand-alone entity
credits of all of the members of a
controlled group, computed under
paragraph (c)(2) of this section, such
group credit shall be allocated among
the members of the controlled group in
proportion to the stand-alone entity
credits of the members of the controlled
group, computed under paragraph (c)(2)
of this section:
member’s stand-alone entity credit
group credit that does not exceed sum of all
×
the members’ stand-alone entity credits
sum of all the members’ stand-alone
entity credits.
group in proportion to the QREs of the
members of the controlled group:
(group credit − sum of all the members’stand-alone entity credits) ×
(2) Stand-alone entity credit. The term
stand-alone entity credit means the
research credit (if any) that would be
allowable to a member of a controlled
group if the credit were computed as if
section 41(f)(1) did not apply, except
that the member must apply the rules
provided in paragraphs (d)(1) (relating
to consolidated groups) and (i) (relating
to intra-group transactions) of this
section. Each member’s stand-alone
entity credit for any credit year must be
computed under whichever method (the
method described in section 41(a) or the
method described in section 41(c)(4))
results in the greater stand-alone entity
credit for that member, without regard
to the method used to compute the
group credit.
(d) Special rules for consolidated
groups—(1) In general. For purposes of
applying paragraph (c) of this section, a
consolidated group whose members are
members of a controlled group is treated
as a single member of the controlled
group and a single stand-alone entity
credit is computed for the consolidated
group.
(2) Start-up company status. A
consolidated group’s status as a start-up
company and the first taxable year after
December 31, 1993, for which a
consolidated group has QREs are
determined in accordance with the
principles of paragraph (b)(2) of this
section.
(3) Special rule for allocation of group
credit among consolidated group
members. The portion of the group
credit that is allocated to a consolidated
group is allocated to the members of the
consolidated group in accordance with
the principles of paragraph (c) of this
section. However, for this purpose, the
member’s QREs
sum of all the
member’s QREs.
stand-alone entity credit of a member of
a consolidated group is computed
without regard to section 41(f)(1), but
with regard to paragraph (i) of this
section.
(e) Examples. The following examples
illustrate the provisions of this section.
Unless otherwise stated, no members of
a controlled group are members of a
consolidated group, and except as
provided in Example 6, the group has
not made an AIRC election:
Example 1. Group credit is less than sum
of members’ stand-alone entity credits—(i)
Facts. A, B, and C, all of which are calendaryear taxpayers, are members of a controlled
group. Neither A, B, nor C made any basic
research payments for their taxable year
ending December 31, 2004. For purposes of
computing the group credit for the 2004
taxable year (the credit year), A, B, and C had
the following:
B
C
Group
aggregate
$20x
$10x
$350x
$200x
$110x
$100x
$150x
$300x
$330x
$150x
$1,500x
$1,700x
A
Credit Year QREs .............................................................................................................................
1984–1988 QREs .............................................................................................................................
1984–1988 Gross Receipts ..............................................................................................................
Average Annual Gross Receipts for 4 Years Preceding the Credit Year ........................................
$200x
$40x
$1,000x
$1,200x
(ii) Computation of the group credit—(A)
In general. The research credit allowable to
the group is computed as if A, B, and C were
one taxpayer. The group credit is equal to 20
percent of the excess of the group’s aggregate
credit year QREs ($330x) over the group’s
base amount ($170x). The group credit is 0.20
× ($330¥$170×), which equals $32x.
(B) Group’s base amount—(1)
Computation. The group’s base amount
(2) Group’s minimum base amount. The
group’s minimum base amount is 50 percent
of the group’s aggregate credit year QREs.
The group’s minimum base amount is 0.50 ×
$330x, which equals $165x.
(3) Group’s fixed-base percentage. The
group’s fixed-base percentage is the lesser of:
the ratio that the group’s aggregate QREs for
the taxable years beginning after December
31, 1983, and before January 1, 1989, bear to
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17:15 May 23, 2005
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equals the greater of: The group’s fixed-base
percentage (10 percent) multiplied by the
group’s aggregate average annual gross
receipts for the 4 taxable years preceding the
credit year ($1,700x), or the group’s
minimum base amount ($165x). The group’s
base amount, therefore, is $170x, which is
the greater of: 0.10 × $1,700x, which equals
$170x, or $165x.
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E:\FR\FM\24MYR1.SGM
24MYR1
ER24MY05.003
members of the controlled group,
computed under paragraph (c)(2) of this
section, such excess shall be allocated
among the members of a controlled
ER24MY05.002
(ii) To the extent that the group credit
(if any) computed under paragraph (b)
of this section exceeds the sum of the
stand-alone entity credits of all of the
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the group’s aggregate gross receipts for the
same period, or 16 percent (the statutory
maximum). The group’s fixed-base
percentage, therefore, is 10 percent, which is
the lesser of: $150x/$1,500x, which equals 10
percent, or 16 percent.
(iii) Allocation of the group credit. Under
paragraph (c)(2) of this section, each
member’s stand-alone entity credit must be
computed using the method that results in
the greater stand-alone entity credit for that
member. The stand-alone entity credit for
each of A, B, and C is greater using the
method described in section 41(a). Therefore,
the stand-alone entity credit for each of A, B,
and C must be computed using the method
described in section 41(a). A’s stand-alone
entity credit is $20x. B’s stand-alone entity
credit is $2x. C’s stand-alone entity credit is
$11x. The sum of the members’ stand-alone
entity credits is $33x. Because the group
credit of $32x is less than the sum of the
stand-alone entity credits of all the members
of the group ($33x), the group credit is
allocated among the members of the group
based on the ratio that each member’s standalone entity credit bears to the sum of the
stand-alone entity credits of all the members
of the group. The $32x group credit is
allocated as follows:
A
B
$20x
20/33
$32x
$19.39x
Example 2. Group credit exceeds sum of
members’ stand-alone entity credits—(i)
Facts. D, E, F, and G, all of which are
calendar-year taxpayers, are members of a
taxable year (the credit year), D, E, F, and G
had the following:
D
Credit Year Qualified Research Expenses (QREs) ......................................................
1984–1988 QREs ..........................................................................................................
1984–1988 Gross Receipts ..........................................................................................
Average Annual Gross Receipts for 4 Years Preceding the Credit Year ....................
(ii) Computation of the group credit—(A)
In general. The research credit allowable to
the group is computed as if D, E, F, and G
were one taxpayer. The group credit is equal
to 20 percent of the excess of the group’s
aggregate credit year QREs ($675x) over the
group’s base amount ($526.19x). The group
credit is 0.20 × ($675x¥$526.19x), which
equals $29.76x.
(B) Group’s base amount—(1)
Computation. The group’s base amount
equals the greater of: the group’s fixed-base
percentage (3.1 percent) multiplied by the
group’s aggregate average annual gross
receipts for the 4 taxable years preceding the
credit year ($17,000x), or the group’s
minimum base amount ($337.50x). The
group’s base amount, therefore, is $526.19x,
which is the greater of: 0.031 × $17,000x,
which equals $526.19x, or $337.50x.
(2) Group’s minimum base amount. The
group’s minimum base amount is 50 percent
of the group’s aggregate credit year QREs.
$580x
$500x
$4,000x
$5,000x
The group’s minimum base amount is 0.50 ×
$675x, which equals $337.50x.
(3) Group’s fixed-base percentage. The
group’s fixed-base percentage is the lesser of:
the ratio that the group’s aggregate QREs for
the taxable years beginning after December
31, 1983, and before January 1, 1989, bear to
the group’s aggregate gross receipts for the
same period, or 16 percent (the statutory
maximum). The group’s fixed-base
percentage, therefore, is 3.10 percent, which
is the lesser of: $650x/$21,000x, which
equals 3.10 percent, or 16 percent.
(iii) Allocation of the group credit. Under
paragraph (c)(2) of this section, each
member’s stand-alone entity credit must be
computed using the method that results in
the greater stand-alone entity credit for that
member. The stand-alone entity credits for D
($19.46x) and F ($1.71x) are greater using the
AIRC method. Therefore, the stand-alone
entity credits for D and F must be computed
using the AIRC method. The stand-alone
D
Group Credit ..................................................................................................................
Minus: Sum of Stand-Alone Entity Credits ...................................................................
Equals: Excess Group Credit ........................................................................................
Excess Group Credit .....................................................................................................
Multiplied By Allocation Ratio: QREs/Sum of QREs ....................................................
Excess Group Credit Allocated .....................................................................................
Plus: Stand-Alone Entity Credit ....................................................................................
Equals: Credit Allocated to Member .............................................................................
Example 3. Consolidated group within a
controlled group—(i) Facts. The facts are the
same as in Example 2, except that D and E
file a consolidated return.
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F
$10x
$25x
$5,000x
$5,000x
$70x
$100x
$2000x
$2,000x
$33x
$32x
G
Group
Aggregate
$15x
$25
$10,000x
$5,000x
$675x
$650x
$21,000x
$17,000x
entity credit for G ($0.50x) is greater using
the method described in section 41(a).
Therefore, the stand-alone entity credit for G
must be computed using the method
described in section 41(a). E’s stand-alone
entity credit computed under either method
is zero. The sum of the members’ stand-alone
entity credits is $21.67x. Because the group
credit of $29.76x is greater than the sum of
the stand-alone entity credits of all the
members of the group ($21.67), each member
of the group is allocated an amount of the
group credit equal to that member’s standalone entity credit. The excess of the group
credit over the sum of the members’ stand
alone entity credits ($8.09) is allocated
among the members of the group based on
the ratio that each member’s QREs bear to the
sum of the QREs of all the members of the
group. The $29.76x group credit is allocated
as follows:
E
F
G
$19.467x
$0.00x
$1.71x
$0.50x
8.09x
580/675
$6.95x
$19.46x
$26.41x
8.09x
10/675
$0.12x
$0.00x
$0.12x
8.09x
70/675
$0.84x
$1.71x
$2.55x
8.09x
15/675
$0.18x
$0.50x
$0.68x
(ii) Allocation of the group credit—(A) In
general. For purposes of allocating the
controlled group’s research credit of $29.76x
among the members of the controlled group,
PO 00000
E
$11x
11/33
$32x
$10.67x
Total
Stand-Alone Entity Credit .................................................................................................................
Allocation Ratio (Stand-Alone Entity Credit/Sum of Stand-Alone Entity Credits) ............................
Multiplied by: Group Credit ...............................................................................................................
Equals: Credit Allocated to Member .................................................................................................
controlled group. Neither D, E, F, nor G made
any basic research payments for their taxable
year ending December 31, 2004. For purposes
of computing the group credit for the 2004
$2x
2/33
$32x
$1.94x
C
Total
$29.76×
$21.67x
$8.09x
$29.76x
D and E are treated as a single member of the
controlled group.
(B) Computation of stand-alone entity
credits. The stand-alone entity credit for the
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consolidated group is computed by treating
D and E as a single entity. Under paragraph
(c)(2) of this section, the stand-alone entity
credit for each member must be computed
using the method that results in the greater
stand-alone entity credit for that member.
The stand-alone entity credit for each of the
DE consolidated group ($17.55x) and F
($1.71x) is greater using the AIRC method.
Therefore, the stand-alone entity credit for
each of the DE consolidated group and F
must be computed using the AIRC method.
The stand-alone entity credit for G ($0.50x)
is greater using the method described in
section 41(a). Therefore, the stand-alone
entity credit for G must be computed using
the method described in section 41(a). The
sum of the members’ stand-alone entity
credits is $19.76x.
(C) Allocation of controlled group credit.
Because the group credit of $29.76x is greater
than the sum of the stand-alone entity credits
of all the members of the group ($19.76x),
each member of the group is allocated an
amount of the group credit equal to that
member’s stand-alone entity credit. The
excess of the group credit over the sum of the
members’ stand alone entity credits ($10.00x)
is allocated among the members of the group
based on the ratio that each member’s QREs
bear to the sum of the QREs of all the
members of the group. The group credit of
$29.76x is allocated as follows:
DE
F
G
Total
Group Credit .....................................................................................................................................
Minus: Sum of Stand-Alone Entity Credits .......................................................................................
Equals: Excess Group Credit ...........................................................................................................
Excess Group Credit .........................................................................................................................
Multiplied By Allocation Ratio: QREs/Sum of QREs ........................................................................
Excess Group Credit Allocated .........................................................................................................
Plus: Stand-Alone Entity Credit ........................................................................................................
Equals: Credit Allocated to Member .................................................................................................
$17.55x
$1.71x
$0.50x
10.00x
590/675
$8.74x
$17.55x
$26.29x
10.00x
70/675
$1.04x
$1.71x
$2.75x
10.00x
15/675
$0.22x
$0.50x
$0.72x
(iii) Allocation of the group credit
allocated to consolidated group—(A) In
general. The group credit that is allocated to
a consolidated group is allocated among the
members of the consolidated group in
accordance with the principles of paragraph
(c) of this section.
(B) Computation of stand-alone entity
credits. Under paragraph (c)(2) of this
section, the stand-alone entity credit for each
member of the consolidated group must be
computed using the method that results in
the greater stand-alone entity credit for that
member. The stand-alone entity credit for D
consolidated group is allocated to each
member of the consolidated group in an
amount equal to the member’s stand-alone
entity credit. The excess of the group credit
allocated to the consolidated group over the
sum of the consolidated group members’
stand alone entity credits ($6.83x) is
allocated among the members of the
consolidated group based on the ratio that
each member’s QREs bear to the sum of the
QREs of all the members of the consolidated
group. The group credit of $26.29x allocated
to the DE consolidated group is allocated
between D and E as follows:
($19.46x) is greater using the AIRC method.
Therefore, the stand-alone entity credit for D
must be computed using the AIRC method.
The stand-alone entity credit for E is zero
under either method. The sum of the standalone entity credits of the members of the
consolidated group is $19.46x.
(C) Allocation among members of
consolidated group. Because the amount of
the group credit allocated to the consolidated
group ($26.29x) is greater than $19.46x, the
sum of the stand-alone entity credits of all
the members of the consolidated group, the
amount of the group credit allocated to the
D
Group Credit ..............................................................................................................................................
Minus: Sum of Stand-Alone Entity Credits ...............................................................................................
Excess Group Credit .................................................................................................................................
Excess Group Credit .................................................................................................................................
Multiplied By Allocation Ratio: QREs/Sum of QREs ................................................................................
Excess Group Credit Allocated .................................................................................................................
Plus: Stand-Alone Entity Credit .................................................................................................................
Equals: Credit Allocated to Member .........................................................................................................
Example 4. Member is a start-up
company—(i) Facts. H, I, and J, all of which
are calendar-year taxpayers, are members of
a controlled group. The first taxable year for
which J has both QREs and gross receipts
begins after December 31, 1983, therefore, J
is a start-up company under section
41(c)(3)(B)(i). The first taxable year for which
H and I had both QREs and gross receipts
began before December 31, 1983, therefore, H
and I are not start-up companies under
section 41(c)(3)(B)(i). Neither H, I, nor J made
E
$19.46x
$29.76x
Total
$26.29x
$19.46x
$6.83x
$0.00x
6.83x
580/590
$6.71x
$19.46x
$26.17x
$29.76x
$19.76x
$10.00x
6.83x
10/590
$0.12x
$0.00x
$0.12x
$26.29x
any basic research payments during the 2004
taxable year. For purposes of computing the
group credit for the 2004 taxable year (the
credit year), H, I, and J had the following:
I
J
Group
Aggregate
$20x
$15x
$400x
$200x
$50x
$0x
$0x
$0x
$270x
$70x
$1,400x
$1,400x
H
Credit Year QREs .............................................................................................................................
1984–1988 QREs .............................................................................................................................
1984–1988 Gross Receipts ..............................................................................................................
Average Annual Gross Receipts for 4 Years Preceding the Credit Year ........................................
$200x
$55x
$1,000x
$1,200x
(ii) Computation of the group credit—(A)
In general. The research credit allowable to
the group is computed as if H, I, and J were
one taxpayer. The group credit is equal to 20
percent of the excess of the group’s aggregate
credit year QREs ($270x) over the group’s
group’s aggregate average annual gross
receipts for the 4 taxable years preceding the
credit year ($1,400x), or the group’s
minimum base amount ($135x). The group’s
base amount, therefore, is $135x, which is
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base amount ($135x). The group credit is 0.20
× ($270x¥$135x), which equals $27x.
(B) Group’s base amount—(1)
Computation. The group’s base amount
equals the greater of: The group’s fixed-base
percentage (5 percent) multiplied by the
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the greater of: 0.05 x $1,400x, which equals
$70x, or $135x.
(2) Group’s minimum base amount. The
group’s minimum base amount is 50 percent
of the group’s aggregate credit year QREs.
The group’s minimum base amount is 0.50 x
$270x, which equals $135x.
(3) Group’s fixed-base percentage. Because
the first taxable year in which at least one
member of the group has QREs and at least
one member of the group has gross receipts
does not begin after December 31, 1983, the
group is not a start-up company. Therefore,
the group’s fixed-base percentage is the lesser
of: the ratio that the group’s aggregate QREs
for the taxable years beginning after
December 31, 1983, and before January 1,
1989, bear to the group’s aggregate gross
receipts for the same period, or 16 percent
(the statutory maximum). The group’s fixedbase percentage, therefore, is 5 percent,
which is the lesser of: $70x/$1,400x, which
equals 5 percent, or 16 percent.
(iii) Allocation of the group credit. Under
paragraph (c)(2) of this section, the standalone entity credit for each member of the
group must be computed using the method
that results in the greater stand-alone entity
credit for that member. The stand-alone
entity credits for H ($20x), I ($2x), and J ($5x)
are greater using the method described in
section 41(a). Therefore, the stand-alone
entity credits for each of H, I, and J must be
computed using the method described in
section 41(a). The sum of the stand-alone
entity credits of the members of the group is
$27x. Because the group credit of $27x is
equal to the sum of the stand-alone entity
credits of all the members of the group
($27x), the group credit is allocated among
the members of the group based on the ratio
that each member’s stand-alone entity credit
bears to the sum of the stand-alone entity
credits of all the members of the group. The
group credit of $27x is allocated as follows:
H
I
J
Stand-Alone Entity Credit .................................................................................................................
Allocation Ratio (Stand-Alone Entity Credit/Sum of Stand-Alone Entity Credits) ............................
Multiplied by: Group Credit ...............................................................................................................
Equals: Credit Allocated to Member .................................................................................................
$20x
20/27
$27x
$20x
$2x
2/27
$27x
$2x
$5x
5/27
$27x
$5x
Example 5. Group is a start-up company—
(i) Facts. K, L, and M, all of which are
calendar-year taxpayers, are members of a
controlled group. The taxable year ending on
December 31, 1999, is the first taxable year
in which each of K, L, and M had both QREs
and gross receipts. Therefore, the taxable year
Neither K, L, nor M made any basic research
payments during the 2004 taxable year. For
purposes of computing the group credit for
the 2004 taxable year (the credit year), K, L,
and M had the following:
ending on December 31, 1999, is the first
taxable year in which at least one member of
the group had QREs and at least one member
of the group had gross receipts. The 2004
taxable year is the fifth taxable year
beginning after December 31, 1993, for which
at least one member of the group had QREs.
Total
$27x
$27x
L
M
Group
Aggregate
$25x
$0x
$0x
$340x
$100x
$0x
$0x
$300x
$380x
$0x
$0x
$2,240x
K
Credit Year QREs .............................................................................................................................
1984–1988 QREs .............................................................................................................................
1984–1988 Gross Receipts ..............................................................................................................
Average Annual Gross Receipts for 4 Years Preceding the Credit Year ........................................
$255x
$0x
$0x
$1,600x
(ii) Computation of the group credit—(A)
In general. The research credit allowable to
the group is computed as if K, L, and M were
one taxpayer. The group credit is equal to 20
percent of the excess of the group’s aggregate
credit year QREs ($380x) over the group’s
base amount ($190x). The group credit is 0.20
× ($380x¥$190x), which equals $38x.
(B) Group’s base amount—(1)
Computation. The group’s base amount
equals the greater of: the group’s fixed-base
percentage (3 percent) multiplied by the
group’s aggregate average annual gross
receipts for the 4 taxable years preceding the
credit year ($2,240x), or the group’s
minimum base amount ($190x). The group’s
base amount, therefore, is $190x, which is
the greater of: 0.03 ‘‘$2,240x, which equals
$67.20x, or $190x.
(2) Group’s minimum base amount. The
group’s minimum base amount is 50 percent
alone entity credit for that member. The
stand-alone entity credit for each of K
($25.5x), L ($2.5x), and M ($10x) is greater
using the method described in section 41(a).
Therefore the stand-alone entity credits for
each of K, L, and M must be computed using
the method described in section 41(a). The
sum of the stand-alone entity credits of all
the members of the group is $38x. Because
the group credit of $38x is equal to sum of
the stand-alone entity credits of all the
members of the group ($38x), the group
credit is allocated among the members of the
group based on the ratio that each member’s
stand-alone entity credit bears to the sum of
the stand-alone entity credits of all the
members of the group. The $38x group credit
is allocated as follows:
of the group’s aggregate credit year QREs.
The group’s minimum base amount is 0.50 ‘‘
$380x, which equals $190x.
(3) Group’s fixed-base percentage. Because
the first taxable year in which at least one
member of the group has QREs and at least
one member of the group has gross receipts
begins after December 31, 1983, the group is
treated as a start-up company under section
41(c)(3)(B)(i) and paragraph (b)(2)(i) of this
section. Because the 2004 taxable year is the
fifth taxable year beginning after December
31, 1993, for which at least one member of
the group had QREs, under section
41(c)(3)(B)(ii)(I), the group’s fixed-base
percentage is 3 percent.
(iii) Allocation of the group credit. Under
paragraph (c)(2) of this section, the standalone entity credit for each member of the
consolidated group must be computed using
the method that results in the greater stand-
K
L
M
$2.5x
2.5/38
$38x
$2.5x
$10x
10/38
$38x
$10x
Total
Stand-Alone Entity Credit .................................................................................................................
Allocation Ratio (Stand-Alone Entity Credit/Sum of Stand-Alone Entity Credits) ............................
Multiplied by: Group Credit ...............................................................................................................
Equals: Credit Allocated to Member .................................................................................................
$25.5x
25.5/38
$38x
$25.5x
Example 6. Group alternative incremental
research credit—(i) Facts. N, O, and P, all of
credit under section 41(a) is not allowable to
the group for the 2004 taxable year because
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which are calendar-year taxpayers, are
members of a controlled group. The research
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$38x
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the group’s aggregate QREs for the 2004
taxable year are less than the group’s base
amount. The group credit is computed using
the AIRC rules of section 41(c)(4). For
purposes of computing the group credit for
the 2004 taxable year (the credit year), N, O,
and P had the following:
O
P
Group
aggregate
$20x
$200x
$110x
$300x
$130x
$1,700x
N
Credit Year QREs .............................................................................................................................
Average Annual Gross Receipts for 4 Years Preceding the Credit Year ........................................
$0x
$1,200x
(ii) Computation of the group credit. The
research credit allowable to the group is
computed as if N, O, and P were one
taxpayer. The group credit is equal to the
sum of: 2.65 percent of so much of the
group’s aggregate QREs for the taxable year
as exceeds 1 percent of the group’s aggregate
average annual gross receipts for the 4
taxable years preceding the credit year, but
does not exceed 1.5 percent of such average;
3.2 percent of so much of the group’s
aggregate QREs as exceeds 1.5 percent of
such average but does not exceed 2 percent
of such average; and 3.75 percent of so much
of such QREs as exceeds 2 percent of such
alone entity credits for each of O and P must
be computed using the AIRC method. The
sum of the stand-alone entity credits of the
members of the group is $4.65x. Because the
group credit of $4.10x is less than the sum
of the stand-alone entity credits of all the
members of the group ($4.65x), the group
credit is allocated among the members of the
group based on the ratio that each member’s
stand-alone entity credit bears to the sum of
the stand-alone entity credits of all the
members of the group. The $4.10x group
credit is allocated as follows:
average. The group credit is [0.0265 ¥
[($1,700x x 0.015)¥($1,700x x 0.01)]] +
[0.032 ¥ [($1,700x x 0.02)—($1,700x x
0.015)]] + [0.0375 ¥ [$130x¥($1,700x ¥
0.02)]], which equals $4.10x.
(iii) Allocation of the group credit. Under
paragraph (c)(2) of this section, the standalone entity credit for each member of the
group must be computed using the method
that results in the greater stand-alone entity
credit for that member. The stand-alone
entity credit for N is zero under either
method. The stand-alone entity credit for
each of O ($0.66x) and P ($3.99x) is greater
using the AIRC method. Therefore, the stand-
N
Stand-Alone Entity Credit .................................................................................................................
Allocation Ratio (Stand-Alone Entity Credit/Sum of Stand-Alone Entity Credits) ............................
Multiplied by: Group Credit ...............................................................................................................
Equals: Credit Allocated to Member .................................................................................................
(f) For taxable years beginning before
January 1, 1990. For taxable years
beginning before January 1, 1990, see
§ 1.41–6 as contained in 26 CFR part 1,
revised April 1, 2005.
(g) Tax accounting periods used—(1)
In general. The credit allowable to a
member of a controlled group is that
member’s share of the group credit
computed as of the end of that member’s
taxable year. In computing the group
credit for a group whose members have
different taxable years, a member
generally should treat the taxable year of
another member that ends with or
within the credit year of the computing
member as the credit year of that other
member. For example, Q, R, and S are
members of a controlled group of
corporations. Both Q and R are calendar
year taxpayers. S files a return using a
fiscal year ending June 30. For purposes
of computing the group credit at the end
of Q’s and R’s taxable year on December
31, S’s fiscal year ending June 30, which
ends within Q’s and R’s taxable year, is
treated as S’s credit year.
(2) Special rule when timing of
research is manipulated. If the timing of
research by members using different tax
accounting periods is manipulated to
generate a credit in excess of the amount
that would be allowable if all members
of the group used the same tax
accounting period, then the appropriate
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Jkt 205001
Internal Revenue Service official in the
operating division that has examination
jurisdiction of the return may require
each member of the group to calculate
the credit in the current taxable year
and all future years as if all members of
the group had the same taxable year and
base period as the computing member.
(h) Membership during taxable year in
more than one group. A trade or
business may be a member of only one
group for a taxable year. If, without
application of this paragraph, a business
would be a member of more than one
group at the end of its taxable year, the
business shall be treated as a member of
the group in which it was included for
its preceding taxable year. If the
business was not included for its
preceding taxable year in any group in
which it could be included as of the end
of its taxable year, the business shall
designate in its timely filed (including
extensions) return the group in which it
is being included. If the return for a
taxable year is due before July 1, 1983,
the business may designate its group
membership through an amended return
for that year filed on or before June 30,
1983. If the business does not so
designate, then the appropriate Internal
Revenue Service official in the operating
division that has examination
jurisdiction of the return will determine
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O
$0.00x
0/4.65
$4.10x
$0.00x
P
$0.66x
0.66/4.65
$4.10x
$0.58x
$3.99x
3.99/4.65
$4.10x
$3.52x
Total
$4.65x
$4.10x
the group in which the business is to be
included.
(i) Intra-group transactions—(1) In
general. Because all members of a group
under common control are treated as a
single taxpayer for purposes of
determining the research credit,
transfers between members of the group
are generally disregarded.
(2) In-house research expenses. If one
member of a group performs qualified
research on behalf of another member,
the member performing the research
shall include in its QREs any in-house
research expenses for that work and
shall not treat any amount received or
accrued as funding the research.
Conversely, the member for whom the
research is performed shall not treat any
part of any amount paid or incurred as
a contract research expense. For
purposes of determining whether the inhouse research for that work is qualified
research, the member performing the
research shall be treated as carrying on
any trade or business carried on by the
member on whose behalf the research is
performed.
(3) Contract research expenses. If a
member of a group pays or incurs
contract research expenses to a person
outside the group in carrying on the
member’s trade or business, that
member shall include those expenses as
QREs. However, if the expenses are not
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paid or incurred in carrying on any
trade or business of that member, those
expenses may be taken into account as
contract research expenses by another
member of the group provided that the
other member—
(i) Reimburses the member paying or
incurring the expenses; and
(ii) Carries on a trade or business to
which the research relates.
(4) Lease payments. The amount paid
or incurred to another member of the
group for the lease of personal property
owned by a member of the group is not
taken into account for purposes of
section 41. Amounts paid or incurred to
another member of the group for the
lease of personal property owned by a
person outside the group shall be taken
into account as in-house research
expenses for purposes of section 41 only
to the extent of the lesser of—
(i) The amount paid or incurred to the
other member; or
(ii) The amount of the lease expenses
paid to the person outside the group.
(5) Payment for supplies. Amounts
paid or incurred to another member of
the group for supplies shall be taken
into account as in-house research
expenses for purposes of section 41 only
to the extent of the lesser of—
(i) The amount paid or incurred to the
other member; or
(ii) The amount of the other member’s
basis in the supplies.
(j) Effective date. These temporary
regulations are applicable for taxable
years ending on or after May 24, 2005.
Generally, a taxpayer may use any
reasonable method of computing and
allocating the credit for taxable years
beginning before the date these
regulations are published in the Federal
Register as final regulations. However,
paragraph (b), relating to the
computation of the group credit, and
paragraph (c), relating to the allocation
of the group credit, will apply to taxable
years ending on or after December 29,
1999, if the members of a controlled
group, as a whole, claimed more than
100 percent of the amount that would be
allowable under paragraph (b). In the
case of a controlled group whose
members have different taxable years
and whose members use inconsistent
methods of allocation, the members of
the controlled group shall be deemed to
have, as a whole, claimed more than 100
percent of the amount that would be
allowable under paragraph (b).
§ 1.41–8
[Removed]
Par. 5. Section 1.41–8 is removed.
Par. 6. Section 1.41–8T is added to
read as follows:
I
I
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§ 1.41–8T Special rules for taxable years
ending on or after January 3, 2001
(temporary).
(a) Alternative incremental credit. At
the election of the taxpayer, the credit
determined under section 41(a)(1)
equals the amount determined under
section 41(c)(4).
(b) Election—(1) In general. A
taxpayer may elect to apply the
provisions of the alternative incremental
research credit (AIRC) in section
41(c)(4) for any taxable year of the
taxpayer beginning after June 30, 1996.
If a taxpayer makes an election under
section 41(c)(4), the election applies to
the taxable year for which made and all
subsequent taxable years unless revoked
in the manner prescribed in paragraph
(b)(3) of this section.
(2) Time and manner of election. An
election under section 41(c)(4) is made
by completing the portion of Form 6765,
‘‘Credit for Increasing Research
Activities,’’ relating to the election of
the AIRC, and attaching the completed
form to the taxpayer’s timely filed
(including extensions) original return
for the taxable year to which the
election applies. An election under
section 41(c)(4) may not be made on an
amended return.
(3) Revocation. An election under this
section may not be revoked except with
the consent of the Commissioner. A
taxpayer is deemed to have requested,
and to have been granted, the consent of
the Commissioner to revoke an election
under section 41(c)(4) if the taxpayer
completes the portion of Form 6765
relating to the regular credit and
attaches the completed form to the
taxpayer’s timely filed (including
extensions) original return for the year
to which the revocation applies. An
election under section 41(c)(4) may not
be revoked on an amended return.
(4) Special rules for controlled
groups—(i) In general. In the case of a
controlled group of corporations, all the
members of which are not included on
a single consolidated return, the
designated member must make (or
revoke) an election under section
41(c)(4) on behalf of the members of the
group. An election (or revocation) by the
designated member under this
paragraph (b)(4) of this section shall be
binding on all the members of the group
for the credit year to which the election
(or revocation) relates.
(ii) Designated member. For purposes
of this paragraph (b)(4) of this section,
for any credit year, the term designated
member means that member of the
group that is allocated the greatest
amount of the group credit under
paragraph (c) of § 1.41–6T. If the
members of a group compute the group
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credit using different methods (either
the method described in section 41(a) or
the AIRC method of section 41(c)(4))
and at least two members of the group
qualify as the designated member, then
the term designated member means that
member that computes the group credit
using the method that yields the greater
group credit. For example, A, B, C, and
D are members of a controlled group but
are not members of a consolidated
group. For the 2005 taxable year, the
group credit using the method described
in section 41(a) is $10x. Under this
method, A would be allocated $5x of the
group credit, which would be the largest
share of the group credit under this
method. For the 2005 taxable year, the
group credit using the AIRC method is
$15x. Under the AIRC method, C would
be allocated $5x of the group credit,
which is the largest share of the group
credit computed using the AIRC
method. Because the group credit is
greater using the AIRC method and C is
allocated the greatest amount of credit
under that method, C is the designated
member. Therefore, C’s section 41(c)(4)
election is binding on all the members
of the group for the 2005 taxable year.
(5) Effective date. These temporary
regulations are applicable for taxable
years ending on or after May 24, 2005.
Mark E. Matthews,
Deputy Commissioner for Services and
Enforcement.
Approved: May 16, 2005.
Eric Solomon,
Acting Deputy Assistant Secretary of the
Treasury.
[FR Doc. 05–10247 Filed 5–23–05; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF JUSTICE
28 CFR Part 75
[Docket No. CRM 103; AG Order No. 2765–
2005]
RIN 1105–AB05
Inspection of Records Relating to
Depiction of Sexually Explicit
Performances
Department of Justice
Final rule.
AGENCY:
ACTION:
SUMMARY: This rule amends the recordkeeping and inspection requirements of
28 CFR part 75 to bring the regulations
up to date with current law, to improve
understanding of the regulatory system,
and to make the inspection process
effective for the purposes set by
Congress in enacting the Child
Protection and Obscenity Enforcement
E:\FR\FM\24MYR1.SGM
24MYR1
Agencies
[Federal Register Volume 70, Number 99 (Tuesday, May 24, 2005)]
[Rules and Regulations]
[Pages 29596-29607]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10247]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9205]
RIN 1545-BE17
Credit for Increasing Research Activities
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Temporary regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains temporary regulations relating to the
computation and allocation of the credit for increasing research
activities for members of a controlled group of corporations or a group
of trades or businesses under common control. These temporary
regulations reflect changes made to section 41 by the Revenue
Reconciliation Act of 1989 (1989 Act), which introduced the current
computational regime for the credit, and the Small Business Job
Protection Act of 1996, which introduced the alternative incremental
research credit. The text of the temporary regulations also serves as
the text of the proposed regulations set forth in the notice of
proposed rulemaking on this subject in the Proposed Rules section in
this issue of the Federal Register.
DATES: Effective Date: These regulations are effective May 24, 2005.
Applicability Dates: For dates of applicability see Sec. Sec.
1.41-6T(j) and 1.41-8T(b)(5).
FOR FURTHER INFORMATION CONTACT: Nicole R. Cimino (202) 622-3120 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On July 29, 2003, the Treasury Department and the IRS published in
the Federal Register (68 FR 44499) proposed amendments to the
regulations under section 41(f) (REG-133791-02) (the 2003 proposed
regulations) relating to the computation and allocation of the credit
for increasing research activities (research credit) under section 41
for members of a controlled group of corporations or a group of trades
or businesses under common control (controlled groups). The 2003
proposed regulations withdrew the proposed regulations published in the
Federal Register on January 4, 2000 (65 FR 258) (REG-105606-99) (the
2000 proposed regulations). In general, the 2000 proposed regulations
required
[[Page 29597]]
controlled groups to compute a group credit and then to allocate that
group credit among the members of the controlled group. The allocation
of the group credit under the 2000 proposed regulations was based on
the relative increases of each member's qualified research expenses
(QREs) over a base amount that was computed by multiplying that
member's most recent average annual gross receipts by the controlled
group's fixed-base percentage.
Although the 2003 proposed regulations did not modify the rules
relating to the computation of the group credit, the 2003 proposed
regulations did modify the rules relating to the allocation of the
group credit among the members of the controlled group. In particular,
the 2003 proposed regulations allocated the group credit in proportion
to the credit, if any, that a member of a controlled group would be
entitled to claim if it were not a member of a controlled group (the
stand-alone entity credit). In addition, based on the comments to the
2000 proposed regulations, the 2003 proposed regulations did not
propose special rules that would apply to consolidated groups that were
members of a controlled group. A public hearing on the 2003 proposed
regulations was held on November 13, 2003. After considering the
written comments and the statements at the public hearing, the Treasury
Department and the IRS are withdrawing the 2003 proposed regulations
and are issuing temporary regulations and proposed regulations cross-
referencing the temporary regulations. In substantial part, the
temporary regulations retain the rules contained in the 2003 proposed
regulations with certain modifications discussed below.
Summary of Comments and Explanation of Provisions
Computation of the Group Credit
Section 41(f)(1)(A)(i) provides that ``all members of the same
controlled group of corporations shall be treated as a single
taxpayer'' in determining the amount of the research credit under
section 41. Section 41(f)(1)(B)(i) provides a similar rule for a group
of trades or businesses under common control. The 2003 proposed
regulations applied the section 41 computational rules on an aggregate
basis for purposes of determining the amount of the group credit.
Additionally, a controlled group would have been treated as a start-up
company for purposes of determining the group's fixed-base percentage
only if each member of the group qualified as a start-up company.
Therefore, a controlled group with only two members would have been
subject to the start-up rules if one member of the group had QREs but
no gross receipts in 1983 and the other member had gross receipts but
no QREs in 1983.
Commentators generally agreed with the proposed rules for computing
the group credit. Commentators were concerned, however, with perceived
ambiguities related to the application of the start-up company rules to
a controlled group. For example, commentators asked that the
regulations clarify what a controlled group's start-up date is if all
the members of the group are start-up companies with different start-up
dates.
These temporary regulations retain the rules in the 2003 proposed
regulations for the computation of the group credit, except for the
start-up company rules. The temporary regulations state that a
controlled group is treated as a start-up company for purposes of
computing the group credit if (A) the first taxable year in which at
least one member of the group had gross receipts and at least one
member of the group had QREs begins after December 31, 1983, or (B)
there were fewer than three taxable years beginning after December 31,
1983, and before January 1, 1989, in which at least one member of the
group had gross receipts and at least one member of the group had QREs.
Consistent with this approach, the first taxable year in which a
controlled group has gross receipts for purposes of the start-up
company rules is the first year in which at least one member of the
group has gross receipts. Likewise, the first taxable year in which a
controlled group has QREs for purposes of the start-up company rules is
the first year in which at least one member of the group has QREs. The
Treasury Department and the IRS believe that this approach is more
consistent with treating a controlled group as a single taxpayer
because a controlled group with two members is not subject to the
start-up rules if one member of the group had QREs but no gross
receipts in 1983 and the other member had gross receipts but no QREs in
1983. Additionally, the temporary regulations specifically state that
for purposes of determining the fixed-base percentage, the first
taxable year after December 31, 1993, for which a controlled group has
QREs is the first taxable year in which at least one member of the
group has QREs.
Allocation of the Group Credit
Section 41(f)(1)(A)(ii) provides that ``the [portion of the group]
credit (if any) allowable by this section to each such member shall be
its proportionate shares of the qualified research expenses and basic
research payments giving rise to the credit.'' Section 41(f)(1)(B)(ii)
provides a similar rule for a group of trades or businesses under
common control. The 2003 proposed regulations apply these provisions by
allocating the group credit based on the relative amounts of each
individual member's stand-alone entity credit.
A number of commentators requested changes to the method of
allocating the group credit contained in the 2003 proposed regulations.
In general, these comments reflected dissatisfaction either with the
stand-alone entity credit method in the 2003 proposed regulations or
with any single, prescribed method. Consequently, commentators either
proposed specific alternatives or stated that final regulations should
allow members to allocate the group credit using any reasonable method.
One commentator advocated that a method that allocates the group credit
based on the relative amounts of each member's total QREs (gross QREs
method) is the only allocation method permitted under the statute.
Another commentator urged the Treasury Department and the IRS to adopt
an allocation method that, based on techniques of differential
calculus, allocates the group credit based on the marginal contribution
to the group credit of each member's QREs for the current year, QREs
for the base years, and gross-receipts for the base years, as well as
the controlled group's fixed-base percentage and the growth in gross
receipts for the controlled group (marginal contribution method). Other
commentators suggested that no single allocation method can
appropriately allocate the group credit in all cases; therefore,
members of a controlled group should be permitted to use any reasonable
method to allocate the group credit. For the reasons discussed below,
these temporary regulations generally retain the stand-alone entity
credit method of the 2003 proposed regulations with some modifications.
The preamble to the 2003 proposed regulations sets out at length
the reasons why the Treasury Department and the IRS believe that the
allocation method under section 41(f) should be based on a group
member's QREs in excess of a base amount. The stand-alone entity credit
method reflects the incremental nature of the credit and also is
consistent with the Treasury Department and the IRS' view of the
purpose of section 41(f). As stated in the preamble to the 2003
proposed regulations:
[[Page 29598]]
The legislative history to the research credit, as originally
enacted in 1981, indicates that the group credit computation and
aggregation rules were enacted to ensure that the research credit
would be allowed only for actual increases in research expenditures.
These aggregation rules were intended to prevent taxpayers from
creating artificial increases in research expenditures by shifting
expenditures among commonly controlled or otherwise related persons.
H. Rep. No. 97-201, 1981-3 C.B. (Vol. 2) 364, and Sen. Rep. 97-144,
1981-3 C.B. (Vol. 2) 442. In effect, the group credit computation
rule serves as a cap on the maximum amount of credit that the
members of the group, in the aggregate, may claim.
Prior to the 1989 Act, the research credit was computed by
multiplying the credit rate by the excess of the taxpayer's current
year QREs over the taxpayer's average QREs for the preceding three
years. Final regulations issued in 1989, prescribing rules for the
allocation of the group credit prior to the 1989 Act, allocated the
group credit based on what effectively would have been each member's
stand-alone entity credit (without giving effect to the minimum base
period amount in computing each member's stand-alone entity credit).
The 1989 Act significantly modified the computation of the credit while
retaining the incremental approach of the pre-1989 Act credit. Congress
did not indicate in either the statute or the legislative history that
either the purpose or the application of section 41(f) was being
changed. Although the phrase ``increase in'' in sections
41(f)(1)(A)(ii) and 41(f)(1)(B)(ii) was deleted by the 1989 Act, for
the reasons set out in the preamble to the 2003 proposed regulations,
the Treasury Department and the IRS concluded that this change to the
statute was intended to reflect only the fact that a taxpayer's
entitlement to the research credit after the 1989 Act no longer
depended on whether the taxpayer had increased its current year QREs
over its average QREs for the preceding three years.
With respect to the alternative allocation methods suggested by the
commentators, the Treasury Department and the IRS conclude that these
methods are inconsistent with the purpose of section 41 generally and
section 41(f) specifically. A gross QREs method is at odds
fundamentally with the incremental nature of the research credit, and
the Treasury Department and the IRS continue to believe that neither
the statute nor the legislative history suggests that Congress intended
that the allocation of the group credit be based solely on a member's
total QREs without reference to whether those QREs exceed a base
amount.
Similarly, the Treasury Department and the IRS do not believe that
the suggested marginal contribution method is consistent with section
41(f). The Treasury Department and the IRS recognize the potential for
that method to more closely associate the amount of group credit
allocated to a particular member to the contributions of that member's
QREs for the current year, gross receipts for the current year, QREs
for the base years, and gross receipts for the base years to the amount
of the group credit. The marginal contribution method proposed,
however, has significant flaws that would change the function of the
aggregation rules in section 41(f) in a manner that the Treasury
Department and the IRS do not believe was intended by Congress. First,
the method would allow allocations of credit to members that have no
QREs, a result the Treasury Department and the IRS believe is contrary
to the statutory directive to allocate the group credit in proportion
to a member's share of QREs giving rise to the credit. Second, the
method uses different formulas for groups that are affected by special
rules, such as the maximum fixed-base percentage rule. As a result, it
is possible that a member of a group that increases its QREs by a
relatively small amount, that is enough to make the group subject to a
special rule, could be allocated proportionately less credit than if
the member had not increased its QREs. Finally, by relying on the
group's gross receipts and the group's fixed-base percentage, the
marginal contribution method appears to encourage planning and shifting
among group members, a result that is inconsistent with the purpose of
section 41(f). The Treasury Department and the IRS believe that an
appropriate allocation method should encourage a member to focus on
incrementally increasing its own research efforts.
The Treasury Department and the IRS also decline to adopt an
allocation rule that would permit the members of a controlled group to
use any reasonable method to allocate the group credit. Neither the
statute nor the legislative history indicates that Congress intended
the allocation of the group credit to be based on any reasonable method
selected by a member individually or the controlled group collectively.
Furthermore, a rule permitting the use of any reasonable method to
allocate the credit could result in continuing controversy. As
discussed in the preamble to the 2003 proposed regulations, the
Treasury Department and the IRS believe that the purpose of section
41(f) is undermined if the members of a controlled group use different
allocation methods to claim more than 100 percent of the group credit.
The Treasury Department and the IRS believe that a single, prescribed
method is necessary to preclude such potential for abuse.
Accordingly, the Treasury Department and the IRS continue to
believe that the purposes of the research credit statute generally and
the provisions of section 41(f) specifically are best furthered by an
allocation method that allocates the group credit based on each
member's stand-alone entity credit.
Special Allocation Rule for Excess Group Credit Situations
Under the 2003 proposed regulations, if the group credit exceeded
the sum of the stand-alone entity credits of the members of a
controlled group, the members with stand-alone entity credits would be
entitled to the entire group credit. In addition, if no member of the
controlled group had a stand-alone entity credit, none of the group
credit would be allocated to the members of the controlled group.
To address these situations, these temporary regulations modify the
allocation method of the 2003 proposed regulations in cases in which
the group credit exceeds the sum of the members' stand-alone entity
credits, including cases in which no member has a stand-alone entity
credit. If the group credit exceeds the sum of the members' stand-alone
entity credits, each member is allocated an amount of group credit
equal to that member's stand-alone entity credit. The remaining, or
excess, amount of group credit is then allocated among all the members
of the controlled group based on the ratio of an individual member's
QREs to the sum of all the members' QREs.
Computation of Stand-Alone Entity Credits
Commentators questioned whether members must use the same method,
i.e., the method described in section 41(a) (regular credit method) or
the alternative incremental research credit (AIRC) method described in
section 41(c)(4), in computing the stand-alone entity credit as that
used to compute the group credit. The Treasury Department and the IRS
do not believe that requiring taxpayers to be consistent in the method
used to compute the group credit and the stand-alone entity credit
would serve the purpose of section 41. Section 41(f) was intended to
encourage taxpayers to increase their individual research efforts to
maximize the group credit and thus their share of the group credit. The
Treasury Department and
[[Page 29599]]
the IRS believe that allowing the members to compute their stand-alone
entity credits without regard to the method used to compute the group
credit will encourage increasing research efforts. Thus, the temporary
regulations provide that a member's stand-alone entity credit must be
computed using whichever method results in the greater stand-alone
entity credit for that member, without regard to the method used to
compute the group credit.
Commentators also pointed out that the computation of the stand-
alone entity credits under the 2003 proposed regulations would no
longer require the intra-group transaction rules of Sec. 1.41-6(e)
(re-designated in these temporary regulations as Sec. 1.41-6(i)) to
apply. Although the intent of the stand-alone entity credit rule is to
compute a credit that is similar to that to which a member would be
entitled if there were no research credit aggregation rules for
controlled groups, the intent was not to render the intra-group
transaction rules or the acquisition/disposition rules of section
41(f)(3) inapplicable. Therefore, these temporary regulations
specifically provide that taxpayers must apply the intra-group
transaction rules and the acquisition/disposition rules when computing
the stand-alone entity credits. For example, to the extent that a
member's gross receipts and QREs have been reduced for purposes of
computing the group credit as a result of the application of the
acquisition/disposition rules, the member's stand-alone entity credit
must be computed using the same gross receipts and QREs.
Special Allocation Rule for Consolidated Groups
The preamble to the 2003 proposed regulations states that the
Treasury Department and the IRS considered comments requesting a
special allocation rule for consolidated groups, but decided not to
adopt such a rule. Several commentators further commented on that
issue. One commentator suggested that if the group credit were
allocated in proportion to QREs, no special consolidated group rule
would be necessary. Given that this commentator's proposed allocation
method is not the one adopted in these temporary regulations, the
Treasury Department and the IRS are not persuaded that a special
consolidated group rule is unnecessary. Another commentator suggested
that a consolidated group should be treated as a single member of a
controlled group for purposes of allocating the group credit and that
the failure to treat the consolidated group in such a manner would
result in abuse.
The Treasury Department and the IRS believe that treating a
consolidated group as a single member of a controlled group for
purposes of allocating the group credit is consistent with the
treatment of a consolidated group as a single taxpayer under a number
of the consolidated return regulations. Therefore, these temporary
regulations provide that, for purposes of allocating the group credit,
a consolidated group whose members are members of a controlled group is
treated as a single member of the controlled group. Accordingly, a
consolidated group whose members are members of a controlled group is
treated as a single member of the controlled group and a single stand-
alone entity credit is computed for the consolidated group. If the
consolidated group is the only member of the controlled group, the
stand-alone entity credit computed for the consolidated group is equal
to the group credit.
The portion of the group credit allocated to a consolidated group
must be allocated among the members of the consolidated group. The
Treasury Department and the IRS believe that the method of allocating
among the members of the consolidated group the portion of the group
credit allocated to the consolidated group should be no different than
the method of allocating the group credit among members of the
controlled group. Therefore, a stand-alone entity credit is computed
for each member of the consolidated group, and the portion of the group
credit allocated to the consolidated group is allocated among the
members of the consolidated group in proportion to the stand-alone
entity credits of the members of the consolidated group. One
commentator argued that separately computing the stand-alone credit for
each member of a consolidated group would be prohibitively burdensome.
The Treasury Department and the IRS, however, do not believe that
computing a stand-alone entity credit for each member of a consolidated
group imposes a greater burden than computing a stand-alone entity
credit for a corporation that is not a member of a consolidated group.
Moreover, providing a rule for allocating the portion of the group
credit allocated to a consolidated group among its members that is
different than the method used for allocating the controlled group
credit would create additional administrative complexity that seems
unwarranted.
Alternative Incremental Research Credit
Section 41(c)(4) provides an election to determine the research
credit using the AIRC computation. Section 41(c)(4)(B) provides that
the election to use the AIRC applies to all succeeding taxable years
unless revoked with the consent of the Secretary. Many issues have
arisen regarding how the AIRC election is made in the case of a
consolidated group and in the case of a controlled group, all members
of which are not included on a single consolidated federal income tax
return. These issues include: (1) How is an AIRC election made by
members of a controlled group for purposes of computing the group
credit under section 41(f)(1); (2) what happens when a controlled group
has made an AIRC election and a member leaves the group or a member
that has not made an AIRC election enters the group; (3) what happens
if a member that has made an AIRC election joins a controlled group
that has not made an AIRC election; and (4) when will a request to
revoke an AIRC election be granted.
Generally, the Treasury Department and the IRS assume that
taxpayers will elect to use the AIRC method if the AIRC method provides
more credit than the regular method, or if a taxpayer does not have the
books and records necessary to compute the base amount under the
regular method. Once a taxpayer elects the AIRC method, the Treasury
Department and the IRS believe that the AIRC method will continue to be
the better method in the future as well, unless the taxpayer has a
substantial change in its trade or business, such as the acquisition or
disposition of an entire trade or business. If such a substantial
change occurs, the Treasury Department and the IRS believe that it is
appropriate to allow the taxpayer to revoke its AIRC election. The IRS
has received many requests for consent to revoke AIRC elections from
taxpayers in such situations. To reduce the burden on taxpayers,
provide simplification, and ease administrative burden, the Treasury
Department and the IRS have determined that it is appropriate to grant
automatic consent to revoke an AIRC election on a prospective basis in
situations in which a taxpayer makes the revocation on an original
return. The Treasury Department and the IRS do not believe, however,
that allowing an AIRC election or revocation on an amended return
furthers the goal of simplification and ease of administration.
Therefore, these temporary regulations provide that a taxpayer that
has made an AIRC election is deemed to
[[Page 29600]]
have requested and been granted consent to revoke the election if the
taxpayer completes the portion of Form 6765, ``Credit for Increasing
Research Activities,'' relating to the regular credit and attaches the
completed form to the taxpayer's timely filed original return for the
year to which the revocation applies. This provision is similar to the
provisions in the existing regulations for making an AIRC election,
which require the taxpayer to complete the portion of Form 6765
relating to the AIRC and attach the completed form to the taxpayer's
timely filed original return for the year to which the election
applies. Once an election/revocation is made for a taxable year, the
taxpayer may not change the election/revocation on an amended return.
The temporary regulations provide special rules for controlled
groups under section 41(f)(1) (in which one or more of the members do
not join in filing a consolidated return). As discussed above, in this
situation many questions have arisen regarding which members of a
controlled group must make (or revoke) an AIRC election to have a valid
election (or revocation) for the controlled group. Attempting to track
elections across members of a controlled group, in which one or more of
the members do not join in filing a consolidated return would create
additional administrative complexity and increase the potential for
controversy. Thus, to reduce the additional administrative complexity
created by the additional computation, these temporary regulations
provide that in the case of a controlled group, all the members of
which are not included on a single consolidated return, the designated
member must make (or revoke) an AIRC election on behalf of the members
of the group. The election (or revocation) by the designated member is
binding on all of the members of the group for the taxable year to
which the election (or revocation) relates. The temporary regulations
provide that the designated member is that member of the group that is
allocated the greatest amount of the group credit. In the event the
members of a group compute the group credit using different methods
(either the regular method or the AIRC method) and at least two members
of the group qualify as the designated member, the designated member is
the member that computes the group credit using the method that yields
the greater group credit. The Treasury Department and the IRS believe
that these rules will simplify the election and revocation of the AIRC
method. Furthermore, granting automatic consent to revoke an AIRC
election also simplifies acquisitions and dispositions of members of
controlled groups. For example, when a new member joins a group, the
member must use the method used by the controlled group. In the taxable
year after a member leaves a group, the member is free to use either
method, assuming the member has not joined another controlled group. If
all members of a controlled group are members of a single consolidated
group, the AIRC election is made by the agent of the consolidated
group, determined pursuant to the rules of Sec. 1.1502-77.
Effective Date
The preamble to the 2003 proposed regulations stated that the
Treasury Department and the IRS intended to make those regulations
effective for taxable years beginning on or after the date that final
regulations are published in the Federal Register. The preamble to the
2003 proposed regulations also addressed the limited application of
final regulations to taxable years prior to that effective date to
prevent abuse. Because the Treasury Department and the IRS have decided
to retain the general rules for the computation and allocation of the
group credit contained in the 2003 proposed regulations, with the
modifications described above, these regulations are being issued in
temporary form and will be effective for taxable years ending on or
after May 24, 2005.
For taxable years prior to those covered by these temporary
regulations, a taxpayer generally may use any reasonable method of
computing and allocating the group credit. For the reasons set out in
the preamble to the 2003 proposed regulations, the Treasury Department
and the IRS believe that these temporary regulations should be
retroactive in limited circumstances to prevent abuse. Accordingly,
paragraph (b) of these temporary regulations, relating to the
computation of the group credit, and paragraph (c) of these temporary
regulations, relating to the allocation of the group credit, apply to
taxable years ending on or after December 29, 1999, if the members of a
controlled group, as a whole, claimed more than 100 percent of the
amount that would be allowable under paragraph (b). In the case of a
controlled group whose members have different taxable years and whose
members use inconsistent methods of allocation, the members of the
controlled group are deemed to have, as a whole, claimed more than 100
percent of the amount that would be allowable under paragraph (b).
Since the issuance of the 2003 proposed regulations, questions have
arisen regarding what constitutes a reasonable method of allocating the
group credit. Any allocation method used by a member of a controlled
group that is consistent with either the 2000 proposed regulations, the
2003 proposed regulations, these temporary regulations, or subsequent
final regulations will be accepted by the IRS as reasonable if the same
allocation method was used by all members of the controlled group. In
addition, for taxable years ending before December 29, 1999, any such
method will be accepted by the IRS as reasonable regardless of the
allocation method or methods used by other members of the controlled
group and regardless of whether the members of the controlled group, in
the aggregate, claimed more than 100 percent of the group credit.
Although the reasonableness of any other allocation method may depend
on the particular facts and circumstance of that taxpayer, in general,
the IRS, solely for purposes of what constitutes a reasonable method of
allocating the group credit for taxable years ending before December
29, 1999, will treat as reasonable a gross QREs method even if the
members of the controlled group use inconsistent allocation methods to
claim, in the aggregate, more than 100 percent of the group credit.
Such treatment of a gross QREs method as reasonable for such years is
for administrative convenience only.
Special Analyses
It has been determined that this Treasury Department decision is
not a significant regulatory action as defined in Executive Order
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) does not apply to these regulations. For the
applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6)
refer to the Special Analyses section of the preamble to the cross-
reference notice of the proposed rulemaking published in the Proposed
Rules section in this issue of the Federal Register. Pursuant to
section 7805(f) of the Code, these temporary regulations will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on their impact on small business.
Drafting Information
The principal author of these regulations is Nicole R. Cimino,
Office of Associate Chief Counsel (Passthroughs and Special
Industries).
[[Page 29601]]
However, personnel from the IRS and Treasury Department participated in
their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
0
Accordingly, 26 CFR part 1 is amended as follows:
PART 1--INCOME TAXES
0
Paragraph 1. The authority citation for part 1 is amended by adding an
entry in numerical order to read, in part, as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.41-6T also issued under 26 U.S.C. 1502. * * *
0
Par. 2. In Sec. 1.41-0, the table of contents is amended by removing
the entries for Sec. 1.41-6 and Sec. 1.41-8 and adding entries for
Sec. 1.41-6T and Sec. 1.41-8T to read as follows:
Sec. 1.41-0 Table of contents.
* * * * *
Sec. 1.41-6T Aggregation of expenditures (temporary).
(a) Controlled groups of corporations; trades or businesses
under common control.
(1) In general.
(2) Consolidated groups.
(3) Definitions.
(b) Computation of the group credit.
(1) In general.
(2) Start-up companies.
(c) Allocation of the group credit.
(1) In general.
(2) Stand-alone entity credit.
(d) Special rules for consolidated groups.
(1) In general.
(2) Start-up company status.
(3) Special rule for allocation of group credit among
consolidated group members.
(e) Examples.
(f) For taxable years beginning before January 1, 1990.
(g) Tax accounting periods used.
(1) In general.
(2) Special rule when timing of research is manipulated.
(h) Membership during taxable year in more than one group.
(i) Intra-group transactions.
(1) In general.
(2) In-house research expenses.
(3) Contract research expenses.
(4) Lease payments.
(5) Payment for supplies.
(j) Effective date.
* * * * *
Sec. 1.41-8T Special rules for taxable years ending on or after
January 3, 2001 (temporary).
(a) Alternative incremental credit.
(b) Election.
(1) In general.
(2) Time and manner of election.
(3) Revocation.
(4) Special rules for controlled groups.
(5) Effective date.
Sec. 1.41-6 [Removed]
0
Par. 3. Section 1.41-6 is removed.
0
Par. 4. Section 1.41-6T is added to read as follows:
Sec. 1.41-6T Aggregation of expenditures (temporary).
(a) Controlled group of corporations; trades or businesses under
common control--(1) In general. To determine the amount of research
credit (if any) allowable to a trade or business that at the end of its
taxable year is a member of a controlled group, a taxpayer must--
(i) Compute the group credit in the manner described in paragraph
(b) of this section; and
(ii) Allocate the group credit among the members of the group in
the manner described in paragraph (c) of this section.
(2) Consolidated groups. For special rules relating to consolidated
groups, see paragraph (d) of this section.
(3) Definitions. For purposes of this section:
(i) Trade or business. A trade or business is a sole
proprietorship, a partnership, a trust, an estate, or a corporation
that is carrying on a trade or business (within the meaning of section
162). Any member of a commonly controlled group shall be deemed to be
carrying on a trade or business if any other member of that group is
carrying on any trade or business.
(ii) Controlled group. The terms group and controlled group mean a
controlled group of corporations, as defined in section 41(f)(5), or a
group of trades or businesses under common control. For rules for
determining whether trades or businesses are under common control, see
Sec. 1.52-1 (b) through (g).
(iii) Group credit. The term group credit means the research credit
(if any) allowable to a controlled group.
(iv) Consolidated group. The term consolidated group has the
meaning set forth in Sec. 1.1502-1(h).
(v) Credit year. The term credit year means the taxable year for
which the member is computing the credit.
(b) Computation of the group credit--(1) In general. All members of
a controlled group are treated as a single taxpayer for purposes of
computing the research credit. The group credit is computed by applying
all of the section 41 computational rules on an aggregate basis. All
members of a controlled group must use the same method of computation,
either the method described in section 41(a) or the alternative
incremental research credit (AIRC) method described in section
41(c)(4), in computing the group credit for a credit year.
(2) Start-up companies--(i) In general. For purposes of computing
the group credit, a controlled group is treated as a start-up company
for purposes of section 41(c)(3)(B)(i) if--
(A) The first taxable year in which at least one member of the
group had gross receipts and at least one member of the group had
qualified research expenditures (QREs) begins after December 31, 1983;
or
(B) There were fewer than 3 taxable years beginning after December
31, 1983, and before January 1, 1989, in which at least one member of
the group had gross receipts and at least one member of the group had
QREs.
(ii) Example. The following example illustrates the principles of
paragraph (b)(2)(i) of this section:
Example. A, B, and C, all of which are calendar year taxpayers,
are members of a controlled group. During the 1983 taxable year, A
had QREs, but no gross receipts; B had gross receipts, but no QREs;
and C had no QREs or gross receipts. The 1984 taxable year was the
first taxable year for which each of A, B, and C had both QREs and
gross receipts. Because the first taxable year for which each of A,
B, and C had both QREs and gross receipts began after December 31,
1983, each of A, B, and C is a start-up company under section
41(c)(3)(B)(i) and each is a start-up company for purposes of
computing the stand-alone entity credit. During the 1983 taxable
year, at least one member of the group, A, had QREs and at least one
member of the group, B, had gross receipts, thus, the group had both
QREs and gross receipts in 1983. Therefore, the controlled group is
not a start-up company because the first taxable year for which the
group had both QREs and gross receipts did not begin after December
31, 1983.
(iii) First taxable year after December 31, 1993, for which the
controlled group had QREs. In the case of a controlled group that is
treated as a start-up company under section 41(c)(3)(B)(i) and
paragraph (b)(2)(i) of this section, for purposes of determining the
group's fixed-base percentage under section 41(c)(3)(B)(ii), the first
taxable year after December 31, 1993, for which the group has QREs is
the first taxable year in which at least one member of the group has
QREs.
(iv) Example. The following example illustrates the principles of
paragraph (b)(2)(iii) of this section:
Example. D, E, and F, all of which are calendar year taxpayers,
are members of a controlled group. The group is treated as a start-
up company under section 41(c)(3)(B)(i) and paragraph (b)(2)(i) of
this section. The
[[Page 29602]]
first taxable year after December 31, 1993, for which D had QREs was
1994. The first taxable year after December 31, 1993, for which E
had QREs was 1995. The first taxable year after December 31, 1993,
for which F had QREs was 1996. Because the 1994 taxable year was the
first taxable year after December 31, 1993, for which at least one
member of the group, D, had QREs, for purposes of determining the
group's fixed-based percentage under section 41(c)(3)(B)(ii), the
1994 taxable year was the first taxable year after December 31,
1993, for which the group had QREs.
(c) Allocation of the group credit--(1) In general. (i) To the
extent the group credit (if any) computed under paragraph (b) of this
section does not exceed the sum of the stand-alone entity credits of
all of the members of a controlled group, computed under paragraph
(c)(2) of this section, such group credit shall be allocated among the
members of the controlled group in proportion to the stand-alone entity
credits of the members of the controlled group, computed under
paragraph (c)(2) of this section:
[GRAPHIC] [TIFF OMITTED] TR24MY05.002
(ii) To the extent that the group credit (if any) computed under
paragraph (b) of this section exceeds the sum of the stand-alone entity
credits of all of the members of the controlled group, computed under
paragraph (c)(2) of this section, such excess shall be allocated among
the members of a controlled group in proportion to the QREs of the
members of the controlled group:
[GRAPHIC] [TIFF OMITTED] TR24MY05.003
(2) Stand-alone entity credit. The term stand-alone entity credit
means the research credit (if any) that would be allowable to a member
of a controlled group if the credit were computed as if section
41(f)(1) did not apply, except that the member must apply the rules
provided in paragraphs (d)(1) (relating to consolidated groups) and (i)
(relating to intra-group transactions) of this section. Each member's
stand-alone entity credit for any credit year must be computed under
whichever method (the method described in section 41(a) or the method
described in section 41(c)(4)) results in the greater stand-alone
entity credit for that member, without regard to the method used to
compute the group credit.
(d) Special rules for consolidated groups--(1) In general. For
purposes of applying paragraph (c) of this section, a consolidated
group whose members are members of a controlled group is treated as a
single member of the controlled group and a single stand-alone entity
credit is computed for the consolidated group.
(2) Start-up company status. A consolidated group's status as a
start-up company and the first taxable year after December 31, 1993,
for which a consolidated group has QREs are determined in accordance
with the principles of paragraph (b)(2) of this section.
(3) Special rule for allocation of group credit among consolidated
group members. The portion of the group credit that is allocated to a
consolidated group is allocated to the members of the consolidated
group in accordance with the principles of paragraph (c) of this
section. However, for this purpose, the stand-alone entity credit of a
member of a consolidated group is computed without regard to section
41(f)(1), but with regard to paragraph (i) of this section.
(e) Examples. The following examples illustrate the provisions of
this section. Unless otherwise stated, no members of a controlled group
are members of a consolidated group, and except as provided in Example
6, the group has not made an AIRC election:
Example 1. Group credit is less than sum of members' stand-alone
entity credits--(i) Facts. A, B, and C, all of which are calendar-
year taxpayers, are members of a controlled group. Neither A, B, nor
C made any basic research payments for their taxable year ending
December 31, 2004. For purposes of computing the group credit for
the 2004 taxable year (the credit year), A, B, and C had the
following:
----------------------------------------------------------------------------------------------------------------
A B C Group aggregate
----------------------------------------------------------------------------------------------------------------
Credit Year QREs................... $200x $20x $110x $330x
1984-1988 QREs..................... $40x $10x $100x $150x
1984-1988 Gross Receipts........... $1,000x $350x $150x $1,500x
Average Annual Gross Receipts for 4 $1,200x $200x $300x $1,700x
Years Preceding the Credit Year.
----------------------------------------------------------------------------------------------------------------
(ii) Computation of the group credit--(A) In general. The
research credit allowable to the group is computed as if A, B, and C
were one taxpayer. The group credit is equal to 20 percent of the
excess of the group's aggregate credit year QREs ($330x) over the
group's base amount ($170x). The group credit is 0.20 x ($330-
$170x), which equals $32x.
(B) Group's base amount--(1) Computation. The group's base
amount equals the greater of: The group's fixed-base percentage (10
percent) multiplied by the group's aggregate average annual gross
receipts for the 4 taxable years preceding the credit year
($1,700x), or the group's minimum base amount ($165x). The group's
base amount, therefore, is $170x, which is the greater of: 0.10 x
$1,700x, which equals $170x, or $165x.
(2) Group's minimum base amount. The group's minimum base amount
is 50 percent of the group's aggregate credit year QREs. The group's
minimum base amount is 0.50 x $330x, which equals $165x.
(3) Group's fixed-base percentage. The group's fixed-base
percentage is the lesser of: the ratio that the group's aggregate
QREs for the taxable years beginning after December 31, 1983, and
before January 1, 1989, bear to
[[Page 29603]]
the group's aggregate gross receipts for the same period, or 16
percent (the statutory maximum). The group's fixed-base percentage,
therefore, is 10 percent, which is the lesser of: $150x/$1,500x,
which equals 10 percent, or 16 percent.
(iii) Allocation of the group credit. Under paragraph (c)(2) of
this section, each member's stand-alone entity credit must be
computed using the method that results in the greater stand-alone
entity credit for that member. The stand-alone entity credit for
each of A, B, and C is greater using the method described in section
41(a). Therefore, the stand-alone entity credit for each of A, B,
and C must be computed using the method described in section 41(a).
A's stand-alone entity credit is $20x. B's stand-alone entity credit
is $2x. C's stand-alone entity credit is $11x. The sum of the
members' stand-alone entity credits is $33x. Because the group
credit of $32x is less than the sum of the stand-alone entity
credits of all the members of the group ($33x), the group credit is
allocated among the members of the group based on the ratio that
each member's stand-alone entity credit bears to the sum of the
stand-alone entity credits of all the members of the group. The $32x
group credit is allocated as follows:
----------------------------------------------------------------------------------------------------------------
A B C Total
----------------------------------------------------------------------------------------------------------------
Stand-Alone Entity Credit.......... $20x $2x $11x $33x
Allocation Ratio (Stand-Alone 20/33 2/33 11/33
Entity Credit/Sum of Stand-Alone
Entity Credits).
Multiplied by: Group Credit........ $32x $32x $32x
Equals: Credit Allocated to Member. $19.39x $1.94x $10.67x $32x
----------------------------------------------------------------------------------------------------------------
Example 2. Group credit exceeds sum of members' stand-alone
entity credits--(i) Facts. D, E, F, and G, all of which are
calendar-year taxpayers, are members of a controlled group. Neither
D, E, F, nor G made any basic research payments for their taxable
year ending December 31, 2004. For purposes of computing the group
credit for the 2004 taxable year (the credit year), D, E, F, and G
had the following:
----------------------------------------------------------------------------------------------------------------
Group
D E F G Aggregate
----------------------------------------------------------------------------------------------------------------
Credit Year Qualified Research $580x $10x $70x $15x $675x
Expenses (QREs).
1984-1988 QREs.................. $500x $25x $100x $25 $650x
1984-1988 Gross Receipts........ $4,000x $5,000x $2000x $10,000x $21,000x
Average Annual Gross Receipts $5,000x $5,000x $2,000x $5,000x $17,000x
for 4 Years Preceding the
Credit Year.
----------------------------------------------------------------------------------------------------------------
(ii) Computation of the group credit--(A) In general. The
research credit allowable to the group is computed as if D, E, F,
and G were one taxpayer. The group credit is equal to 20 percent of
the excess of the group's aggregate credit year QREs ($675x) over
the group's base amount ($526.19x). The group credit is 0.20 x
($675x-$526.19x), which equals $29.76x.
(B) Group's base amount--(1) Computation. The group's base
amount equals the greater of: the group's fixed-base percentage (3.1
percent) multiplied by the group's aggregate average annual gross
receipts for the 4 taxable years preceding the credit year
($17,000x), or the group's minimum base amount ($337.50x). The
group's base amount, therefore, is $526.19x, which is the greater
of: 0.031 x $17,000x, which equals $526.19x, or $337.50x.
(2) Group's minimum base amount. The group's minimum base amount
is 50 percent of the group's aggregate credit year QREs. The group's
minimum base amount is 0.50 x $675x, which equals $337.50x.
(3) Group's fixed-base percentage. The group's fixed-base
percentage is the lesser of: the ratio that the group's aggregate
QREs for the taxable years beginning after December 31, 1983, and
before January 1, 1989, bear to the group's aggregate gross receipts
for the same period, or 16 percent (the statutory maximum). The
group's fixed-base percentage, therefore, is 3.10 percent, which is
the lesser of: $650x/$21,000x, which equals 3.10 percent, or 16
percent.
(iii) Allocation of the group credit. Under paragraph (c)(2) of
this section, each member's stand-alone entity credit must be
computed using the method that results in the greater stand-alone
entity credit for that member. The stand-alone entity credits for D
($19.46x) and F ($1.71x) are greater using the AIRC method.
Therefore, the stand-alone entity credits for D and F must be
computed using the AIRC method. The stand-alone entity credit for G
($0.50x) is greater using the method described in section 41(a).
Therefore, the stand-alone entity credit for G must be computed
using the method described in section 41(a). E's stand-alone entity
credit computed under either method is zero. The sum of the members'
stand-alone entity credits is $21.67x. Because the group credit of
$29.76x is greater than the sum of the stand-alone entity credits of
all the members of the group ($21.67), each member of the group is
allocated an amount of the group credit equal to that member's
stand-alone entity credit. The excess of the group credit over the
sum of the members' stand alone entity credits ($8.09) is allocated
among the members of the group based on the ratio that each member's
QREs bear to the sum of the QREs of all the members of the group.
The $29.76x group credit is allocated as follows:
----------------------------------------------------------------------------------------------------------------
D E F G Total
----------------------------------------------------------------------------------------------------------------
Group Credit.................... $29.76x
Minus: Sum of Stand-Alone Entity $19.467x $0.00x $1.71x $0.50x $21.67x
Credits.
Equals: Excess Group Credit..... $8.09x
Excess Group Credit............. 8.09x 8.09x 8.09x 8.09x ..............
Multiplied By Allocation Ratio: 580/675 10/675 70/675 15/675 ..............
QREs/Sum of QREs.
Excess Group Credit Allocated... $6.95x $0.12x $0.84x $0.18x ..............
Plus: Stand-Alone Entity Credit. $19.46x $0.00x $1.71x $0.50x ..............
Equals: Credit Allocated to $26.41x $0.12x $2.55x $0.68x $29.76x
Member.
----------------------------------------------------------------------------------------------------------------
Example 3. Consolidated group within a controlled group--(i)
Facts. The facts are the same as in Example 2, except that D and E
file a consolidated return.
(ii) Allocation of the group credit--(A) In general. For
purposes of allocating the controlled group's research credit of
$29.76x among the members of the controlled group, D and E are
treated as a single member of the controlled group.
(B) Computation of stand-alone entity credits. The stand-alone
entity credit for the
[[Page 29604]]
consolidated group is computed by treating D and E as a single
entity. Under paragraph (c)(2) of this section, the stand-alone
entity credit for each member must be computed using the method that
results in the greater stand-alone entity credit for that member.
The stand-alone entity credit for each of the DE consolidated group
($17.55x) and F ($1.71x) is greater using the AIRC method.
Therefore, the stand-alone entity credit for each of the DE
consolidated group and F must be computed using the AIRC method. The
stand-alone entity credit for G ($0.50x) is greater using the method
described in section 41(a). Therefore, the stand-alone entity credit
for G must be computed using the method described in section 41(a).
The sum of the members' stand-alone entity credits is $19.76x.
(C) Allocation of controlled group credit. Because the group
credit of $29.76x is greater than the sum of the stand-alone entity
credits of all the members of the group ($19.76x), each member of
the group is allocated an amount of the group credit equal to that
member's stand-alone entity credit. The excess of the group credit
over the sum of the members' stand alone entity credits ($10.00x) is
allocated among the members of the group based on the ratio that
each member's QREs bear to the sum of the QREs of all the members of
the group. The group credit of $29.76x is allocated as follows:
----------------------------------------------------------------------------------------------------------------
DE F G Total
----------------------------------------------------------------------------------------------------------------
Group Credit....................... $29.76x
Minus: Sum of Stand-Alone Entity $17.55x $1.71x $0.50x $19.76x
Credits.
Equals: Excess Group Credit........ $10.00x
Excess Group Credit................ 10.00x 10.00x 10.00x .................
Multiplied By Allocation Ratio: 590/675 70/675 15/675 .................
QREs/Sum of QREs.
Excess Group Credit Allocated...... $8.74x $1.04x $0.22x .................
Plus: Stand-Alone Entity Credit.... $17.55x $1.71x $0.50x .................
Equals: Credit Allocated to Member. $26.29x $2.75x $0.72x $29.76x
----------------------------------------------------------------------------------------------------------------
(iii) Allocation of the group credit allocated to consolidated
group--(A) In general. The group credit that is allocated to a
consolidated group is allocated among the members of the
consolidated group in accordance with the principles of paragraph
(c) of this section.
(B) Computation of stand-alone entity credits. Under paragraph
(c)(2) of this section, the stand-alone entity credit for each
member of the consolidated group must be computed using the method
that results in the greater stand-alone entity credit for that
member. The stand-alone entity credit for D ($19.46x) is greater
using the AIRC method. Therefore, the stand-alone entity credit for
D must be computed using the AIRC method. The stand-alone entity
credit for E is zero under either method. The sum of the stand-alone
entity credits of the members of the consolidated group is $19.46x.
(C) Allocation among members of consolidated group. Because the
amount of the group credit allocated to the consolidated group
($26.29x) is greater than $19.46x, the sum of the stand-alone entity
credits of all the members of the consolidated group, the amount of
the group credit allocated to the consolidated group is allocated to
each member of the consolidated group in an amount equal to the
member's stand-alone entity credit. The excess of the group credit
allocated to the consolidated group over the sum of the consolidated
group members' stand alone entity credits ($6.83x) is allocated
among the members of the consolidated group based on the ratio that
each member's QREs bear to the sum of the QREs of all the members of
the consolidated group. The group credit of $26.29x allocated to the
DE consolidated group is allocated between D and E as follows:
----------------------------------------------------------------------------------------------------------------
D E Total
----------------------------------------------------------------------------------------------------------------
Group Credit......................... $26.29x
Minus: Sum of Stand-Alone Entity $19.46x $0.00x $19.46x
Credits.
Excess Group Credit.................. $6.83x
Excess Group Credit.................. 6.83x 6.83x
Multiplied By Allocation Ratio: QREs/ 580/590 10/590
Sum of QREs.
Excess Group Credit Allocated........ $6.71x $0.12x
Plus: Stand-Alone Entity Credit...... $19.46x $0.00x
Equals: Credit Allocated to Member... $26.17x $0.12x $26.29x
----------------------------------------------------------------------------------------------------------------
Example 4. Member is a start-up company--(i) Facts. H, I, and J,
all of which are calendar-year taxpayers, are members of a
controlled group. The first taxable year for which J has both QREs
and gross receipts begins after December 31, 1983, therefore, J is a
start-up company under section 41(c)(3)(B)(i). The first taxable
year for which H and I had both QREs and gross receipts began before
December 31, 1983, therefore, H and I are not start-up companies
under section 41(c)(3)(B)(i). Neither H, I, nor J made any basic
research payments during the 2004 taxable year. For purposes of
computing the group credit for the 2004 taxable year (the credit
year), H, I, and J had the following:
----------------------------------------------------------------------------------------------------------------
H I J Group Aggregate
----------------------------------------------------------------------------------------------------------------
Credit Year QREs................... $200x $20x $50x $270x
1984-1988 QREs..................... $55x $15x $0x $70x
1984-1988 Gross Receipts........... $1,000x $400x $0x $1,400x
Average Annual Gross Receipts for 4 $1,200x $200x $0x $1,400x
Years Preceding the Credit Year.
----------------------------------------------------------------------------------------------------------------
(ii) Computation of the group credit--(A) In general. The
research credit allowable to the group is computed as if H, I, and J
were one taxpayer. The group credit is equal to 20 percent of the
excess of the group's aggregate credit year QREs ($270x) over the
group's base amount ($135x). The group credit is 0.20 x ($270x-
$135x), which equals $27x.
(B) Group's base amount--(1) Computation. The group's base
amount equals the greater of: The group's fixed-base percentage (5
percent) multiplied by the group's aggregate average annual gross
receipts for the 4 taxable years preceding the credit year
($1,400x), or the group's minimum base amount ($135x). The group's
base amount, therefore, is $135x, which is
[[Page 29605]]
the greater of: 0.05 x $1,400x, which equals $70x, or $135x.
(2) Group's minimum base amount. The group's minimum base amount
is 50 percent of the group's aggregate credit year QREs. The group's
minimum base amount is 0.50 x $270x, which equals $135x.
(3) Group's fixed-base percentage. Because the first taxable
year in which at least one member of the group has QREs and at least
one member of the group has gross receipts does not begin after
December 31, 1983, the group is not a start-up company. Therefore,
the group's fixed-base percentage is the lesser of: the ratio that
the group's aggregate QREs for the taxable years beginning after
December 31, 1983, and before January 1, 1989, bear to the group's
aggregate gross receipts for the same period, or 16 percent (the
statutory maximum). The group's fixed-base percentage, therefore, is
5 percent, which is the lesser of: $70x/$1,400x, which equals 5
percent, or 16 percent.
(iii) Allocation of the group credit. Under paragraph (c)(2) of
this section, the stand-alone entity credit for each member of the
group must be computed using the method that results in the greater
stand-alone entity credit for that member. The stand-alone entity
credits for H ($20x), I ($2x), and J ($5x) are greater using the
method described in section 41(a). Therefore, the stand-alone entity
credits for each of H, I, and J must be computed using the method
described in section 41(a). The sum of the stand-alone entity
credits of the members of the group is $27x. Because the group
credit of $27x is equal to the sum of the stand-alone entity credits
of all the members of the group ($27x), the group credit is
allocated among the members of the group based on the ratio that
each member's stand-alone entity credit bears to the sum of the
stand-alone entity credits of all the members of the group. The
group credit of $27x is allocated as follows:
----------------------------------------------------------------------------------------------------------------
H I J Total
----------------------------------------------------------------------------------------------------------------
Stand-Alone Entity Credit.......... $20x $2x $5x $27x
Allocation Ratio (Stand-Alone 20/27 2/27 5/27
Entity Credit/Sum of Stand-Alone
Entity Credits).
Multiplied by: Group Credit........ $27x $27x $27x
Equals: Credit Allocated to Member. $20x $2x $5x $27x
----------------------------------------------------------------------------------------------------------------
Example 5. Group is a start-up company--(i) Facts. K, L, and M,
all of which are calendar-year taxpayers, are members of a
controlled group. The taxable year ending on December 31, 1999, is
the first taxable year in which each of K, L, and M had both QREs
and g