B Pacific Southwest Container Etal 473587 Sum

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STATE BOARD OF EQUALIZATION CORPORATION FRANCHISE TAX APPEAL
Louis A. Ambrose Tax Counsel IV Board of Equalization, Appeals Division 450 N Street, MIC: 85 PO Box 942879 Sacramento CA 95814 Tel: (916) 445-5580 Fax: (916) 324-2618 Attorney for the Appeals Division BOARD OF EQUALIZATION STATE OF CALIFORNIA
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In the Matter of the Appeal of:
) ) ) ) ) ) PACIFIC SOUTHWEST CONTAINER, INC. 1 ) ) ) DONALD J. MAYOL ) ) JOHN MAYOL AND TAMI MAYOL ) ) JAMES MAYOL AND BIRGITT MAYOL ) ) LOIS M. MAYOL ) Years 1999 2000 2001 Representing the Parties:
HEARING SUMMARY CORPORATION AND PERSONAL ICOME TAX APPEALS Case No. 473587 Case No. 474114 Case No. 474120 Case No. 474107 Case No. 474108 Claims For Refund $274,935 $479,056 $385,215
For Appellant:
Michelle Waggener, Manager PricewaterhouseCoopers Jason Riley, Tax Counsel
For Franchise Tax Board:
Appellant Pacific Southwest Container, Inc. is headquartered in Modesto, CA
Appeal of Pacific Southwest Container, et al.
NOT TO BE CITED AS PRECEDENT - Document prepared for Board review. It does not represent the Boards decision or opinion.
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QUESTIONS: (1) Whether appellants have presented evidence sufficient to establish that appellant Pacific Southwest Container, Inc. (PSC) conducted activities that constituted qualified research as defined in Internal Revenue Code (IRC) section 41. (2) If appellants have established that PSC engaged in qualified research as defined in IRC section 41(d), whether appellants have met their burden of proving qualified research expenses and the claimed research and development (R&D) tax credit under IRC section 41 for the tax years at issue. HEARING SUMMARY Factual and Procedural Background Appellant PSC is a California subchapter S corporation headquartered in Modesto which manufactures boxes and packaging materials. PSC is one of the West Coasts largest independent paperboard converter and custom foam fabricators. In the period from 1999 through 2001, approximately 40 percent of PSCs customers were in the computer hardware and software business and 30 percent of PSCs customers were in the food and wine industries. In 1999, PSC obtained a patent for an innovative wine box. (App. Opening Br., pp. 2-4.) Appellants Donald J. Mayol, John Mayol and Tami Mayol, James Mayol and Birgitt Mayol, and Lois M. Mayol are shareholders in PSC. Appellants filed original California income tax returns for tax years 1999, 2000, and 2001 but did not claim the R&D tax credit. (Resp. Opening Br., p.5.) Between August 26, 2003, and October 15, 2003, appellants filed amended returns for taxable years ending December 31, 1999, December 31, 2000, and December 31, 2001, which included claims for the R&D tax credit. Respondent commenced an audit of those returns on October 20, 2004, and requested information from appellants to substantiate the claimed R&D tax credit. During this part of the audit, two of respondents auditors conducted a tour of the PSC facility. Respondent issued a preliminary determination on September 16, 2005, denying the claims in full for lack of substantiation. By letter dated September 26, 2005, appellants provided a detailed response to the preliminary determination and in that letter also requested that respondents auditor tour the PSC facility. In response, respondents auditor sent an Information Document Request (IDR) letter dated January 10, 2006, acknowledging appellants September 26, 2005 letter, in which the auditor agreed to tour the
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facility and also requested specific types of information including, applications for patents resulting from PSCs research, documentation of experiments that were performed during research, and materials explaining research activities, including brochures, pamphlets, press releases, and other similar documents. (Resp. Opening Br., p. 6 and exhibits G and H.) On February 16, 2006, respondents auditor performed a field inspection of PSCs Modesto facility and, on February 21, 2006, appellants provided respondent with a R&D credit study (credit study). (Resp. Opening Br., p. 6.) The executive summary of the credit study describes the nature of work performed to calculate and document the R&D tax credits as involving the following steps: Conducting interviews, reviewing costing, and documentation information - The aim of these interviews was to provide PSC personnel with an understanding of the legal rules regarding qualified research, qualified services, and qualified research expenses as defined in IRC section 41, Regulations, legislative history, and relevant case law, so that they could determine which of their activities and expenditures qualify under these rules. Identifying qualified activities and costs, which included wages, supplies, and contract research expenditures - Once they understood these rules, the PSC personnel familiar with the activities and expenses identified those that qualified and those that did not. PSC personnel familiar with their nature and purpose identified and verified, by signature, all qualified activities and expenses. The wages were determined using wage surveys in which department managers provided percentages of time each employee spent performing qualified and non-qualified activities for the years in issue. The percentages were then multiplied by each employees W-2 wages to determine qualified wages. The qualified research expenses (QREs) for supplies were determined by applying a departmental average wage QRE percentage to general ledger accounts that were identified as supplies used and consumed in qualified research activities. The QREs for contract research expenses was determined in the same manner. Calculating the tax credit - The tax credits were calculated in accordance with IRC section 41 and the regulations thereunder. Documenting qualified activities and costs - A Cost Accumulation Binder was created for each
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year and includes a Summary of QRE Report and Qualified Wage Summary Report, R&D Wage Surveys, and Qualified Research Narratives. (App. Opening Br., exhibit 10, pp. 7-9.) Respondent determined that the credit study did not substantiate the claimed R&D tax credits and respondent issued a series of IDRs on May 5, 2006, May 10, 2006 and June 6, 2006, requesting various information about PSCs employees. On August 14, 2006, respondent issued a Revised Preliminary Determination Letter proposing an allowance of 5 percent of appellants claimed R&D tax credits. The parties met on August 15, 2006, to discuss respondents IDRs and appellants representative requested 60 days to respond to the Revised Preliminary Determination Letter. By letter dated November 3, 2006, appellants notified respondent that they disagreed with the Revised Preliminary Determination. (Resp. Opening Br., pp. 6-7.) Thereafter, respondent issued another IDR in which respondent (1) requested interviews with key staff members and a staff member from each department for which qualified wages were claimed and (2) provided a detailed questionnaire to be completed by senior management. Respondent met with appellants representatives on March 29, 2007. Following that meeting respondents auditor agreed that some research activities were being conducted at PSCs facility but found that substantiating documentation was needed to determine the amount of qualified research and the time that employees spent on the qualified research activities. In response to two IDRs issued on April 6, 2007 and August 29, 2007, appellants claimed they worked on 1,100 projects per month and that providing the requested documentation would be overly burdensome. In view of the large volume of projects, respondent proposed sampling from among PSCs one hundred largest research projects. Appellants agreed to provide a list of all the R&D projects during the credit years and their associated costs and respondent would select from the list a sample of projects as a basis for determining the following detailed information requested by respondents ninth IDR dated August 29, 2007: contemporaneous documentation to support that qualified research was being conducted complete costing of the R&D activities conducted during the credit period complete accounting of all personnel associated with each of the R&D activities
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(Resp. Opening Br., pp. 7-8.)
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Appellants provided a list of 33 projects and respondent selected the following five projects from this list as the audit sample: CV Logistics, US Print, CMD Products, Joint Juice, and Guardian Products. Respondent requested a full project costing of these projects and appellants replied by stating that: each of the selected projects account for no more than 1% of an individuals annual time. Consequently, [appellants] did not prepare an allocation calculation for each project. However, [appellants] conducted a thorough analysis of the documentation available for the time period and prepared a summary detailing the length of time spent on all R&D projects by the individuals that performed qualified R&D activities. In response to respondents request for clarification of the nature of the claimed 1,100 projects per month, appellants stated that they had mischaracterized the classification of projects in the previous submission, and correctly stated that PSC has on average 1,100 orders every month and typically has a average of 400 new projects per month that are entered into PCSs Sales Force Automation System (SAS) and these 400 projects involve R&D activities. (Resp. Opening Br., pp. 8-9 and exhibits Z and AA.) Respondent examined the five projects and found that three constituted qualified research. Respondent found that the Joint Juice and Guardian Products projects occurred outside the credit period. By letter dated August 12, 2008, respondent notified appellants that it was closing the audit and issued a final determination that PSC engaged in some qualified research and was entitled to a fair and reasonable estimate of QREs. On that basis, respondent allowed 20 percent of the claimed R&D credit for a total of $334,873 of appellants claimed credit. Appellants filed timely appeals on November 10, 2008, which were consolidated in this appeal. (Resp. Opening Br., pp. 10-11.) ISSUE (1): Whether appellants have pr esented evidence sufficient to establish that appellant PSC conducted activities that constituted qualified r esear ch as defined in IRC section 41. Contentions Appellants Contentions Appellants contend that [a] significant portion of PSCs ongoing operations were R&D and that sixteen of PSCs eighteen departments were involved in R&D to some degree. Appellants classify PSCs research efforts in two distinct categories: new product development and manufacturing process development. For the first category, PSC conducted R&D activities related to
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specific prospective opportunities intended to achieve a customers unique design objectives. For the second category, PSC conducted R&D activities regarding general manufacturing processes and improvements with broad applications in PSCs business. The research conducted in this second category of projects was not related to specific customer orders but for the purposes of achieving something unprecedented in the industry and to increase PSCs ability to continue developing innovative products that met marketplace demand and increased PSCs overall manufacturing efficiency. (App. Opening Br., pp. 5-6.) Appellants state that PSC undertakes two types of product development projects: routine or simple packaging known as me too projects not typically involving R&D for which appellants did not claim the R&D tax credit and innovative projects that required extensive research to resolve uncertainties related to both the complexity of the new product design itself and the ability to manufacture the unique packaging. Appellants further state that the manufacturing process for a new PSC product began with PSCs sales team members who are integrally involved in the concept and design processes and also participate in the validation process. (App. Opening Br., pp. 6-7.) Appellants explain that following a customer contact, a sales team member submits an initial concept and any specifications to the Design Department which engineers custom packaging options to achieve the prospective customers desired objectives using a CAD program to produce a blueprint of the packaging solution. Appellants state that the Design Department works directly with the internal PSC Quality, Sales, Manufacturing, and Customer/Service Estimating Departments. Appellants further explain that once a design was tentatively approved, PSC developed prototypes for testing in the corrugated, print, foam, or single face lamination manufacturing departments. Appellants then describe in general terms the functions and processes performed by each department. (App. Opening Br., pp. 7-8.) Upon completion, appellants state that a prototype is sent to the quality control department which provided quality control oversight of the entire design and manufacturing processes and worked directly with the Design, Printing, Manufacturing, and Shipping departments to ensure that PSCs efforts met each customers design objectives. Appellants explain that Quality Control was involved in designing testing regimes for each project, actual testing of packaging solutions, and
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working with the Design and Manufacturing Departments to overcome project failures. Appellants further explain that the Customer Service/Estimating Department typically became involved with a new project once the initial prototype was completed and worked closely with the other groups to reengineer the design where necessary and to identify and test the lowest cost and highest quality supplies for PSCs new designs prior to commercial production. Finally, appellants state that the Shipping and Transportation Departments were involved in qualified activities during the design and prototype phases by providing testing and input as to whether designs would be subject to damage or failure during the shipping process. In this regard, the Shipping and Transportation Departments worked with the Design Department in testing procedures, such as drop testing and vibration testing, and in identifying warehousing or load failures. (App. Opening Br., pp. 9-10.) Appellants state that PSC designed a Sales Force Automation System (SAS) to track new manufacturing projects and manage the design, testing, and overall lifecycle of PSCs projects primarily those activities that are R&D related. Appellants state that each entry in the SAS identified the staff member, the date and time of the entry, and current project status information, including necessary next steps. Appellants assert that the SAS is a contemporaneous documentation of individuals who participated in the R&D activity which help[s] demonstrate the time and resources associated with particular customer requests. Appellants state that the SAS was necessary to handle the large volume of PSCs orders, typically averaging 1,100 per month of which 800 to 1,000 were orders not involving R&D. Appellants further state that 100 to 300 monthly orders were generated from the average of 400 new projects per month, which involved R&D activities and approximately 100 to 300 designs per month were failures that PSC abandoned. (App. Opening Br., pp. 10-11.) Appellants state that PSC engaged PricewaterhouseCoopers LLC (PwC) to conduct an R&D study for the 1998 to 2002 period to quantify PSCs qualifying research activities and qualifying research expenses. Appellants describe the steps taken by PwCs consultants and PSC personnel in substantially the same terms as those in the R&D studys executive summary described above. (App. Opening Br., pp. 11-15.) Appellants state that respondent agreed at the conclusion of the audit that PSC was conducting qualified research activities but unreasonably determined that PSC had not provided enough information and was not entitled to the total amount of claimed R&D credit. Appellants contend
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that respondent arbitrarily denied 80 percent of appellants R&D credit claimed without a reasonable basis and that its determination is contrary to both federal and state law. Appellants cite each element of the four-part test under IRC section 41(d) and argue that they have met each element as follows: The IRC Section 174 Element: PSCs reported expenditures qualify because they were wages, supplies and contract research expenses incurred in the experimental process of researching and developing new manufacturing processes and products which PSC always currently deducted rather than capitalizing. The Technological in Nature Element: PSCs research fundamentally relied on principles of materials science and mechanical and structural engineering and its development occurred by experimental application of its research to its manufacturing processes and products. Uncertainty existed prior to commercial production because the available information did not establish the capability, method, and/or appropriate design for commercially producing the project. The uncertainty is exemplified by the fact that in many instances PSC did not successfully design a product. The Business Component Element: Appellants only claimed credit for activities related to developing innovative projects and did not claim credit for post-production activity expenses or for routine packaging efforts. The Process of Experimentation Element: There was uncertainty about PSCs ability to develop products as evidenced by the fact that 100 to 300 projects per month failed to develop a viable manufacturing process or product meeting the customers needs. PSC conducted testing to establish that designs met specifications and such testing was required because of the uncertainty regarding PSCs capability or method for developing or improving the business component, or the appropriate design of the business component. PSC conducted systematic trial and error experiments and the testing was required to determine whether a design met its desired objectives. In addition, when test results did not meet expectations, prototypes were analyzed and re-evaluated for alternative solutions to defects. (App. Opening Br., pp. 18-20.) Respondents Contentions Respondent determined that PSC engaged in some qualified research and were entitled to some fair and reasonable estimate of QREs. Thus, respondent allowed 20 percent of appellants
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claimed R&D credit. Respondent further states that a reasonable, good faith estimate [was] based upon a totality of the evidence which included the following information: Appellants claimed PSC engaged in 1,100 new projects every month until the response to IDR 10 dated February 8, 2008, in which they revised the number to 400 new projects every month. PSCs company profile states PSCs operation generates nearly 1,000 different jobs per month, including 100-200 brand new designs. PSCs thousands of projects were narrowed down to 33 large projects, of which five were selected by respondent for a more detailed analysis and two of those five did not qualify for R&D credit. PSC employee Darrin Jones statement that PSC engaged in 15 to 25 new projects per day which amounts to approximately 330 to 550 new projects per month. The contrasting statement of PSC employee Chuck Mitten that PSC engaged in 125 to 200 new projects per month. Mr. Jones statement that sometimes PSCs new projects involve discovery and sometimes they do not. Respondent looked to the one-page declarations in conjunction with other documentary evidence appellants provided at audit. The Joint Juice and Guardian Products projects occurred outside the tax years in issue. The R&D time surveys were unreliable, inaccurate, incomplete and wholly insufficient and were not credited by respondent. Executive wages constituted between 15 and 21 percent of total claimed QREs but these wages are not eligible as QREs. Four of the departments identified by appellants as engaged in qualified research activities were found at audit to be part of the post-production process which are excluded under IRC section 41(d)(4)(A) & (D). (Resp. Opening Br., pp. 10-11.) Respondent argues that appellants have not substantiated they engaged in all the claimed qualified research activities as required by the four-part test under IRC section 41(d). Specifically,
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respondent contends that appellants submitted a reconstruction of their alleged qualifying activities which courts have held are unreliable, inaccurate, incomplete and wholly insufficient to establish employees activities or whether expenses qualify for the R&D credit. Respondent further contends that this Board is not required to accept appellants reconstruction of expenses which was made years after the fact. Respondent recounts statements initially made by appellants witnesses during the audit to the effect that PSC engages in an average of 1,100 projects per month and appellants are only claiming costs associated with the R&D activities related to its innovative projects. Respondent asserts that the inference drawn from these statements is that appellants have approximated which of their operations might involve research; that appellants claim of R&D credit was based upon an estimation of what constituted alleged qualified research, and an estimation of qualified research expenses. Respondent contends that QREs are only allowed after appellants substantiate the qualified research activities and an estimation of such activities is not permitted. (Resp. Opening Br., pp.12-13.) Respondent states that the information provided in appellants response to IDR 10 (the average number of 400 projects per month and 100 to 300 of those are successful) contrasts with information on PSCs Company Profile on its website stating that PSC generates nearly 1,000 different jobs per month including 100-200 brand new designs. Respondent asserts that qualified research has a specific definition under IRC section 41(d)(1) and the terms new project or new concept fail to recognize the definition and statutory requirements of qualified research and fail to provide any meaningful information as to what appellants were doing with these new projects or concepts. With regard to the interview statements made by Mr. Jones and Mr. Mitten, respondent notes that Mr. Jones estimated approximately 440 new projects per month but also stated that sometimes you can leverage a hundred percent of what you need to know off of things youve done prior. Respondent concludes that Mr. Jones statement was submitted as an estimate of PSCs qualified research activities. Respondent also notes that Mr. Mitten estimated approximately 163 projects per month which is less than half of the new projects claimed by Mr. Jones and by appellants in their response to IDR 10. In addition, respondent contends that calling an activity a brand new item does not satisfy the statutory requirements of IRC section 41(d). (Resp. Opening Br., pp. 13-14.) Finally, respondent concludes that the institutional knowledge places the total number
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of new projects closer to the range of 100 to 200 per month and that calling an activity a new project does not necessarily equate to qualified research. Respondent further notes that appellants inexactitude of using the term new project required that respondent deny some portion of the claimed R&D credit. Moreover, appellants continually adjusted downward their own representations of activities that constituted qualified research so respondent concluded that appellants did not meet their burden of proving their initial R&D credit claim. (Resp. Opening Br., p.15.) With respect to the Union Carbide Corp. & Subsidiaries v. Commissioner, T.C. Memo 2009-50 (Union Carbide) case relied upon by appellants, respondent states that the court found that some, but not all, of the taxpayers projects constituted qualified research. Respondent explains that the taxpayer and the IRS agreed to a sample of five of the taxpayers largest projects, and only two of those projects qualified for the claimed R&D credit. Furthermore, respondent states, the taxpayer in Union Carbide presented voluminous contemporaneous documentation in formulating its estimations and properly identified over 800 projects constituting qualified research activities. The taxpayer engaged a team of experts who spent over 5,000 hours reviewing over 120,000 pages of technical documents, conducting electronic searches, interviewing 157 current and former Dow and Union Carbide employees, and visiting numerous libraries. The technical documents included, but were not limited to, R&D project reports and project memoranda, definition of technology reports, technology managers reports, UNIPOL strategic run plans and tactical run plans, and latex process and commercial product information. (Resp. Opening Br., pp. 15-16.) Respondent further contends the court found the criteria applied by the team of experts in its examination of the taxpayers activities closely tracked the definition of qualified research under IRC section 41(d). For each of the identified runs, the team defined the activity by providing a run description, the plant locations and specific manufacturing units, the product(s) made during the activities and the production volume, the raw materials and catalysts used, the start and end dates of the activities, any other relevant scientific information and the documents related to the identified runs. Respondent also notes that the decision spends more than 50 pages discussing the experts analysis in great detail, going project-by-project to substantiate the claimed R&D credit. Respondent concludes that the taxpayer in Union Carbide provided contemporaneous documentation accompanied by an
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analysis of those documents, thus making the form and detail of those records sufficiently useable. (Resp. Opening Br., pp. 16-17.) In contrast, respondent contends that appellants submitted a non-contemporaneous credit study that failed to address specific qualified research activities, failed to apply the criteria of IRC section 41(d) separately to each claimed project, failed to address the number of projects for which credit was claimed, and failed to demonstrate the required nexus between qualified research and QREs. Respondent also contends that the Union Carbide court relied upon expert testimony, corroborated by fact witnesses and documentary evidence which was the standard applied by the court in U.S. v. McFerrin (5th Cir. 2009) 570 F.3d 672 (McFerrin). Respondent further states that testimony is generally understood as a declaration made under oath in response to an interrogation by a lawyer or authorized public official. In Union Carbide, respondent indicates that the court evaluated the expert testimony in light of all the evidence in the record and was not bound by the opinion of any expert witness. With respect to specific example of types of other evidence, respondent cites Efrem v. Fudim, 67 T.C.M. (CCH) 3011 (Fudim), in which the court described the record as including contemporaneous letters and scientific articles and most importantly, contemporaneously, petitioner was awarded two patents. (Resp. Opening Br., pp. 17-18.) Respondent contends that appellants misquote Union Carbide and contradict McFerrin and Fudim by alleging that the court accepted testimony taken alone on pages 21 and 22 of appellants opening brief. In a footnote, respondent asserts that the quoted language was taken directly from a seminar presentation prepared in part by appellants representatives. Respondent further contends that appellants employee interviews are not testimony (because they were not subject to crossexamination) but constitute other evidence akin to institutional knowledge. Although such institutional knowledge may be considered in conjunction with testimony and documentary evidence, respondent contends that much of appellants documentary evidence was in the form of the R&D credit study which reconstructed alleged activities years after the fact rather than contemporaneous documents detailing qualified research activities or expenses. Based on the foregoing, respondent contends that it reached a reasonable conclusion that PSC was entitled to some of the R&D credit claimed. (Resp. Opening Br., pp. 18-19.)
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Appellants Reply Brief Appellants state that respondent appears confused as to the relevant issues and therefore unnecessarily obscures the facts and issues present in this appeal. Appellants contend that PSC and PwC engaged in a comprehensive review of PSCs activities to determine the QREs and that the claimed R&D credit is based on a thorough analysis and proper application of the law. Moreover, appellants contend that respondents determination of R&D credit is not supported by any application of the law to the facts. Appellants further assert that it appears that the only form of evidence acceptable to [respondent] would be full project costing, which is not required under either California or federal law. (App. Reply Br., pp. 1-2.) Because respondent agrees that PSC engaged in some qualified research activity, appellants contend that the sole issue is whether PSCs R&D credit study supports the amount of R&D credit claimed. Appellants state that respondent accepted the R&D study as the appropriate starting point for the amount of R&D credit allowed but does not accept the information included with the study and the information submitted during the audit. Appellants then generally describe the manner in which the study was conducted and state that the process of identifying and determining how these activities constituted qualifying activities is fully documented in the Study. The 13 categories of qualifying activities are stated as follows: 1. Designing the Manufacturing Line 2. Testing and selecting different machine alternatives 3. Designing the building/plumbing/vacuum systems around the machines 4. Developing other manufacturing process enhancements 5. Developing software for internal use purposes 6. Developing new corrugated combinations or other products 7. Product and process audits 8. In-process quality checks 9. Statistical process control 10. Determining product specifications 11. Direct support of people who perform research
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12. Technical meetings 13. Improvement change requests relating to products or processes. (App. Reply Br., pp. 3-4) Appellants contend that respondent selectively applies and misapplies the law and that a proper application of the law supports appellants entire R&D tax credit claim. Appellants further contend that respondent failed to specify which of PSCs claimed activities or projects did not meet the four-part test, respondent did not respond to appellants detailed analysis of the four-part test, and respondent did not provide its own analysis. Instead, appellants contend, respondent ignored IRC section 41 and the regulations and guidance. Finally, appellants contend that one must assume from respondents attempt to misdirect the Board and lead away from the key facts, law and conclusion that PSC engaged in qualified research activities and eligibility for the R&D tax credit depends solely on substantiation and documentation. (App. Reply Br., pp. 10-12.) Appellants contend that the law requires that [respondent] accept PSCs documentation without requiring contemporaneous documentation or specific records and that Congress did not intend to impose an added burden on businesses that engage in R&D activities. Appellants state the Congress narrowed the scope of acceptable documentation in 1986 but subsequently broadened it by noting a concern about unnecessary and costly taxpayer recordkeeping burdens when Congress extended the R&D tax credit in 1999. Appellants state that the Treasury Department and IRS subsequently removed the specific recordation and contemporaneous documentation requirements by adopting the standards of Treasury Regulation section 1.6001-1. Appellants describe respondents information requests as requests for project costing and contend that such requests are outside the scope of regulations, beyond respondents authority and discriminatory. (App. Reply Br., pp. 13-14.) Appellants assert that the documentation was provided in accordance with the rules of Union Carbide, McFerrin and Cohan. Appellants further assert that the courts accepted reconstruction methodologies in Union Carbide and McFerrin, the use of historical data in Union Carbide, corroborated testimony and testimony standing alone and estimation when necessary under the Cohan principles. On this basis, appellants argue that acceptable substantiation includes wage estimates supported by the testimony of high-level employees with adequate knowledge. Furthermore, in view of
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the foregoing, appellants contend that respondent improperly refused to consider the studys reconstruction methodology which was supported by volumes of documentation, including records of expenses incurred at the time of the activities, narratives from employees with institutional knowledge, depositions of key employees, and various other contemporaneous documentation describing the products and designs. In addition, appellants contend that respondent erroneously determined that the wage summaries lacked nexus to the qualified activities even though those summaries were accompanied by narratives based on the recollections of high-level supervising employees who described the various qualified activities performed by each department. Appellants further describe the forms as defining the categories of activities, specific percentage of time spent, and the signature of the high-level employee. (App. Reply Br., pp. 15-16.) With respect to the wages paid to PSCs executives, appellants contend that a determination of qualified wages should be based on the actual activities of the executive and not on title or rank. Appellants state that PSC is a small, family-owned corporation in which the experience and expertise of personnel, regardless of rank, was employed to develop a successful product. Appellants argue that respondent allowed the title of the executives to influence their determinations that the executives wages were not qualified which is not supported by federal guidance. Appellants further argue that the narratives were signed by the authors and the amended returns were signed under penalty of perjury which creates a presumption of credibility. Appellants also argue that respondent did not provide specific evidence of the unreliability of the forms and narratives nor did respondent provide specific evidence that the materials were incomplete, inaccurate or wholly insufficient. In response to respondents contention that appellants employees did not provide testimony similar to the testimony credited by the court in Union Carbide, appellants contend that IRC section 41 and the regulations and guidance do not require such testimony at the time the credit study was submitted and respondent did not take the opportunity to cross-examine PSCs employees during the audit. Finally, appellants contend that respondent unjustly accused PSC of misquoting and misstating the law in appellants presentation of a summary of the courts decision contained in the 121-page Union Carbide opinion Appellants also take issue with respondents unfounded accusation that appellants quoted directly
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from a seminar presentation that discussed the application of Union Carbide to R&D credit cases. Appellants state that PSC filed its opening brief on May 21, 2009 and the seminar took place on May 26, 2009. Appellants contend that respondents inaccurate accusation is designed to misdirect this Boards attention away from the relevant issues and should be disregarded. (App. Reply Br., pp. 16-18.) In a supplemental brief, appellants argue that respondent seeks to impose a project accounting requirement to substantiate the claimed R&D credit but avoids framing the issue in this manner because the applicable law requires respondent to accept and use a taxpayers records prepared and maintained in the regular course of business to substantiate the claimed credit. Appellants repeat their contentions that (1) respondent arbitrarily disallowed 80 percent of the claimed credit and (2) respondent fails to explain why the R&D credit study and other evidence provided by appellants are insufficient to meet the burden of proof. Appellants assert that respondent must state how the evidence is deficient and why its arbitrary denial is correct and reasonable. (App. Supp. Br., pp. 1-2.) Appellants assert that PSC invested in new systems and machinery, developed new processes and procedures and designed and developed new packaging solutions for its customers and nearly every department was involved in the innovative process. In describing PSCs business model, appellants state that PSCs ability to invest a significant amount of R&D activity to satisfy its clients needs . . . is PSCs market niche. Appellants recite legislative materials stating that wages must be allocated between qualified services and other services in a consistent manner in accordance with Treasury regulations. Appellants also summarize IRS Field Service Advice 002184 (FSA), which provided guidance as to determining an employees qualified and non-qualified wages. Appellants assert that the R&D credit study used the methodology set forth in the FSA. Appellants then state that PwC subject matter experts met with PSC employees and PSC and PwC identified categories of qualifying activities and that process is fully documented in the Study. (App. Supp. Br., pp. 2-3.) Appellants repeat their contention that they presented evidence of qualified activities within the audit period for the two sample projects disallowed by respondent. Finally, appellants contend that PSC conducted research activities that met the requirements of IRC section 41(d) which were supported by PSCs business records and the Study. Furthermore, the methodology used by the Study has been validated by the courts and audited successfully by the IRS for many years. Finally,
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appellants contend that the McFerrin holding does not provide respondent with blanket authority to ignore any and all documents . . . simply by labeling it as reconstruction. Thus, respondent may consider the Study in conjunction with other available evidence but cannot simply deny the credit without justification. (App. Supp. Br., pp. 5-6.) Respondents Reply Brief Respondent takes issue with various points made in appellants reply brief as set forth below: The credit study is dictated by industry standards and is accepted by relevant law. Response: There is no industry standard identified or the alleged dictates to be followed. Case law authority dictates that respondent is not required to accept non-contemporaneous reconstructions and that such reconstructions are unreliable, inaccurate, incomplete, and wholly insufficient. In addition, the IRS has issued guidance as to the issues presented by a prepackage credit study that fails to properly substantiate a claim. (Resp. Reply Br., pp. 1-2.) The study used a proper reconstruction methodology in an attempt to accurately capture PSCs activities. Response: The implication of this statement is that appellants estimated the qualified research activities, which is not allowed. (Resp. Reply Br., p. 2.) Based on respondents determination that two of the five sampled projects fell outside the audit period, one must conclude that they qualify because appellants presented substantiation for expenses within the audit period. Response: Respondent stopped its analysis of these projects once it was determined that they fell outside the audit period and did not qualify. Appellants have not presented any new evidence to carry their burden of proof. (Resp. Reply Br., pp. 3-4.) Appellants are unclear why respondents opening brief devoted so much space to a discussion of the correct number of projects when appellants did not calculate the credit on a project basis. Response: Appellants failed to consider whether each activity met the requirements of IRC section 41(d) and, as a result, appellants methodology failed to demonstrate a nexus between the activity and the costs claimed. For these reasons, respondent agreed to the sampling method at audit.
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Respondent substituted its own test for qualified research activities because it is convenient for its cause. Response: Respondent did not substitute its own test but rather applied the relevant statutes, regulations and case law. In addition, appellants do not explain what respondents own test entails and respondent does not apply the law in furtherance of any so-called cause.
The law requires respondent to accept appellants documentation without requiring contemporaneous documentation or specific records. Response: Appellants cite no legal authority and the relevant treasury regulation (Treas. Reg. 1.41-4(d)) requires records in sufficiently useable form and detail to substantiate that the expenditures are eligible for the credit. The McFerrin court required contemporaneous letters, scientific articles and patents. (Resp. Reply Br., p. 4.)
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Respondent did not have the authority to reject appellants documentation. Response: Appellants records were not in sufficiently useable form or detail and as the McFerrin court held, no weight should be afforded taxpayer reconstructions. On that basis, respondent had the authority to reject appellants documentation. (Resp. Reply Br., p. 5.) The court in Union Carbide allowed testimony taken alone as proof of qualification for the R&D credit. Response: Appellants support their assertion with an incorrect pinpoint citation and the assertion fails for a number of reasons. First, the court describes at length the documentation and the experiments of the anti-coking project and the application of the four-part test to that project. Specifically, the court recites that Union Carbide documented the results of its analysis of the anti-coking project in a formal project report and reported the results of two pretreatments in several informal reports and memoranda. Union Carbide also used the information gathered during the anti-coking project in the course of its business. The difference between the Union Carbide anti-coking project and the projects of this appeal is that Union Carbide proved that the requirements of IRC section 41(d) had been met before moving on to the determination of QREs. Moreover, the testimony of the Union Carbide employees was grounded in a credible evidentiary basis because the claimed qualified research activities were substantiated by
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documentation and analysis in a formal project report and other documents. Furthermore, the Union Carbide court did not allow testimony taken alone but rather made its determination on the basis of the entire record which included the formal project report and voluminous documentation in addition to the testimony. Finally, the McFerrin court held that testimony and other evidence needs to be examined to determine a fair estimate. (Resp. Reply Br., pp. 5-7.) Respondent falsely accused appellants of quoting directly from a seminar presentation when the opening brief was filed on May 21, 2009 and the seminar took place on May 26, 2009. Response: Seminar materials are typically prepared well in advance of the actual presentation. Kendall Fox of PwC co-authored the presentation and was also involved in this audit, represented appellants and many of the IDR responses were signed by him or signed on his behalf, and he was carbon-copied on many of the IDR responses. Respondent did not provide specific evidence of the unreliability of the forms and narratives in the study. Response: Appellants bear the burden of proving their entitlement to R&D credits and their unsubstantiated assertions do not shift the burden to respondent. (Resp. Reply Br., p. 8.) Appellants cite Mitchell v. Kayem (Tenn.Ct.App. 2001) 54 SW3d 775 to support their position that a presumption exists that a person is bound by his signature on a document. Response: Respondent does not dispute that the executives statements were signed under penalty of perjury although those statements do not rise to the level of testimony. Respondent focused on the substance of the statements and determined that the activities described do not qualify for the R&D credit. The executive wages are not QREs pursuant to IRC section 41(b) and Treas. Reg. 1.41-1(c)(2) and the activities did not constitute qualified research under IRC section 41(d). There is no nexus between the activities claimed in the statements and any qualified research activity. (Resp. Reply Br., pp. 8-9.) Appellants object to respondents citation of the Appeal of Don Cookston, 83-SBE-048, decided on January 3, 1983. Response: This formal opinion is routinely cited by this Board and respondent for the proposition that the failure of a taxpayer to provide evidence requested which is in the taxpayers
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control gives rise to the presumption that the evidence is unfavorable to the taxpayer. Appellants have been given ample opportunity but failed to provide substantiating documentation. Presumably, appellants have provided their best documentation upon which respondent based its fair and reasonable estimate of appellants R&D credit. (Resp. Reply Br., p. 9.) Appeals Conference An appeals conference was held on January 11, 2011, in order to clarify issues and develop the factual record. At the conference, appellants representatives contended that appellants had met their burden of proof to establish entitlement to the entire amount of R&D credit claimed and because appellants had met that burden, respondent now has the burden of showing error in appellants case. With respect to the basis of their claim, appellants stated that after respondent rejected the R&D credit study appellants tried to work with respondent by submitting the five sample projects. Appellants stated that they are entitled to the claimed R&D tax credits based on the credit study and the evidence provided. Appellants representatives made the following presentation and arguments: A summary of the history of PSCs business and examples of products developed and manufactured by PSC. PSC is more of a service business that delivers customized packaging solutions. No part of PSCs facility is solely devoted to R&D but PSCs R&D activities are worked into the ongoing production process on a daily basis. Appellants are not claiming executive compensation as QREs but rather the QREs are determined by the percentage of qualified activities undertaken by the executives. The large number of orders processed by PSC every month shows that project accounting by PSC would not have been feasible. In addition, the number of orders received is irrelevant for purposes of determining the R&D tax credit because PSC was not using project accounting. In order to identify qualified activities, appellants representatives sat down with each cost center and learned how it did its work. In addition, respondent has not identified which of PSCs activities do not qualify. Appellants stated that the SAS and other documentation were evidence of the business components for
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which the R&D tax credit was claimed and that each of the 33 sample projects submitted by appellants represented a separate business component. In response to respondents position that two of the five sampled projects were outside the audit period, appellants pointed to employee time records that, according to appellants, showed that PSC employees had worked on those projects within the audit period. After reviewing the records, respondent asserted that the activities performed by the employees were not identified so those entries did not prove that qualified activities took place within the audit period. Respondent stated that: Respondent based its R&D tax credit allowance, in part, on the statements of Mr. Jones and Mr. Mitten. The qualified activities identified by the auditor were related to manufacturing processes developed by PSC and used in many projects. Appellants have not identified the business component element in many of the projects that they claim involved qualified research activities. In addition, the SAS does not identify when the process of experimentation started or the amount of time spent on experimentation. Although respondents auditor requested interviews with PSCs personnel, not all of them were made available to respondent. Appellants lack of documentation stands in contrast to the voluminous documentary evidence presented by the taxpayer in Union Carbide. Applicable Law R&TC section 23609 provides a tax credit for qualified research expenses determined in accordance with IRC section 41. Generally, the credit is determined based on the amount by which the taxpayers qualified research expenses exceed a base amount. Insofar as is relevant to this appeal, R&TC section 23609 substantially conforms to IRC section 41. IRC section 41(b)((2)(A) defines, in relevant part, in-house research expenses as any wages paid or incurred to an employee for qualified service performed by such employee. IRC section 41(b)((2)(B) defines qualified services as services consisting of (i) engaging in qualifying research or (ii) engaging in the direct supervision or direct support of research activities which constitute qualified research. Under IRC section 41(d)(1), the term qualified research is defined as research:
(A) (B)
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with respect to which expenditures may be treated as expenses under section 174, which is undertaken for the purpose of discovering information (i)which is technological in nature, and
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the application of which is intended to be useful in the development of a new or improved business component of the taxpayer, and (C) substantially all of the activities of which constitute elements of a process of experimentation for a purpose described in paragraph (3) [which lists qualified purposes as (i) a new or improved function, (ii) performance, or (iii) reliability or quality].
(ii)
Treasury Regulation 1.41-4(a)(3) provides in pertinent part that: (i) Research is undertaken for the purpose of discovering information if it is intended to eliminate uncertainty concerning the development or improvement of a business component. Uncertainty exists if the information available to the taxpayer does not establish the capability or method for developing or improving the business component, or the appropriate design of the business component. (ii) Application of the discovering information requirement. A determination that research is undertaken for the purpose of discovering information that is technological in nature does not require the taxpayer be seeking to obtain information that exceeds, expands or refines the common knowledge of skilled professionals in the particular field of science or engineering in which the taxpayer is performing the research. In addition, a determination that research is undertaken for the purpose of discovering information that is technological in nature does not require that the taxpayer succeed in developing a new or improved business component. 2 Treasury Regulation 1.41-4(a)(5)(i) defines the process of experimentation in relevant part as a process designed to evaluate one or more alternatives to achieve a result where the capability or the method of achieving that result, or the appropriate design of that result, is uncertain as of the beginning of the taxpayers research activities. The Court of Appeals for the Fifth Circuit has described the process of experimentation as involving three steps: (1) the identification of uncertainty concerning the development or improvement of a business component, (2) the identification of one or more alternatives intended to eliminate that uncertainty, and (3) the identification and the conduct of a process of evaluating the alternatives (through, for example, modeling, simulation, or a systematic trial and error methodology). (U.S. v. McFerrin (2009) 570 F.3d 672, 677.) In addition, Treasury Regulation 1.41-4(a)(5)(ii) describes a qualified purpose of a process of experimentation as relating to a new or improved function, performance, reliability or
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2
Although the current regulation provides that it is applicable to tax years after December 31, 2003, the regulation was adopted, in relevant part, as a proposed regulation on December 26, 2001, and the IRS then stated that it would not challenge return positions that were consistent with the proposed regulation. (66 Fed. Reg. 247, p. 66367 (Dec. 26, 2001).) The regulation discarded the IRSs prior formulation of the applicable rule, which required the taxpayer undertake to obtain knowledge that exceeds or refines the knowledge of skilled professionals in the field of science or engineering. Staff notes that United Stationers, Inc. v. U.S. (7th Cir. 1998) 163 F.3d 440, appeared to adopt a more stringent form of the discovery requirement than set forth in the current regulation by requiring that qualifying research go beyond the current state of knowledge in [the] field [or] expand or refine its principles. (United Stationers v. U.S., supra at p.445.) NOT TO BE CITED AS PRECEDENT - Document prepared for Board review. It does not represent the Boards decision or opinion.
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quality of the business component. Research will not be treated as conducted for a qualified purpose if it relates to style, taste, cosmetic, or seasonal design factors. IRC section 41(d)(2) provides that the test for qualified research shall be applied separately with respect to each business component of the taxpayer, and defines business component as any product, process, technique, formula, or invention which is to be held for sale, lease or license, or used by the taxpayer in a trade or business of the taxpayer. (Int. Rev. Code, 41(d)(2)(A) & (B).) IRC section 41(d)(4) excludes the following activities (among others) from the definition of qualified research (and thus provides that such activities will not be eligible for the credit): (D) Surveys, studies, etc. Any (i) efficiency survey, (ii) activity relating to management function or technique, (iii) market research, testing, or development (including advertising or promotions), (iv) routine data collection, or (v) routine or ordinary testing or inspection for quality control. . . . *** (H) Funded research. Any research to the extent funded by any grant, contract, or otherwise by another person (or governmental entity). IRC section 41(d)(1)(A) provides that, in addition to meeting the requirements set forth in IRC section 41 itself, a taxpayer seeking the research credit must also comply with the requirements of IRC section 174, which provides a deduction for research or experimental expenditures. Treasury Regulation section 1.174-2(a)(1) provides that, to fall within the definition of research or experimental expenditures, expenses must represent research and development costs in the experimental or laboratory sense. Treasury Regulation section 1.174-2(a)(1) further explains as follows: Expenditures represent research and development costs in the experimental or laboratory sense if they are for activities intended to discover information that would eliminate uncertainty concerning the development or improvement of a product. Uncertainty exists if the information available to the taxpayer does not establish the capability or method for developing or improving the product or the appropriate design of the product. Whether expenditures qualify as research or experimental expenditures depends on the nature of the activity to which the expenditures relate, not the nature of the product or improvement being developed or the level of technological advancement the product or improvement represents. One scholarly commentator has noted that for purposes of IRC section 174: The term uncertainty must be limited to technological or scientific uncertainty in that a taxpayer must be uncertain as to whether it will be able to develop or improve its product in the scientific or laboratory sense. Put differently, the taxpayer must be uncertain as to
Appeal of Pacific Southwest Container, et al. NOT TO BE CITED AS PRECEDENT - Document prepared for Board review. It does not represent the Boards decision or opinion.
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whether it will be able to achieve its product development objective through its research activities. Conversely, uncertainty attributable to business or market concerns is not determinative of the existence of research and experimentation for purposes of section 174. 3 In this process, the taxpayer is required to identify the uncertainty, identify one or more alternatives and identify and conduct a process of evaluating the alternatives. The IRS audit manual explains as follows: The key difference regarding uncertainty in sections 41 and 174 is that, under section 41, uncertainty must relate to a qualified purpose, and must be resolved through a 3element process of experimentation, fundamentally relying on the principles of the hard sciences, engineering, or computer science. The regulations clarify that merely demonstrating that uncertainty has been eliminated is insufficientFocus on developing facts necessary to determine whether the taxpayers activities meet these requirements and the core elements. Treasury Regulation section 1.174-2(a)(3) further provides that the term research or experimental expenditures does not include expenditures for, among other things, quality control testing, surveys or advertising. In U.S. v. McFerrin 2008 U.S. Dist. LEXIS 64327 the taxpayers R&D credit study was the basis of the claim for R&D tax credit by the taxpayers and their companies. The federal district court found that the IRS proved convincingly that the R&D tax credit consultants work and resulting report were fundamentally flawed and unreliable and entitled to no weight. The court described the consultants methods as staff conducting superficial on-site meetings with personnel from [taxpayers companies], and reviewing various records of the companies. The court noted that there was no evidence that the consultant had anyone with meaningful scientific experience or training on staff, or that skilled or knowledgeable individuals conducted the study, did any investigation, or rendered conclusions. Finally, the court noted that the consultant did not define research for purposes of the R&D credit in its interviews with the employees so that each employees answers reflected that employees own interpretation of what qualified as research. The district court bifurcated the test for determining whether the activities constituted qualified research as meeting both the discovering information requirement and the process of
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Cameron, Research Tax Credit: Statutory Construction, Regulatory Interpretation and Policy Incoherence (2004) 9 Comp. L. Rev. & Tech. J. 63. Appeal of Pacific Southwest Container, et al. NOT TO BE CITED AS PRECEDENT - Document prepared for Board review. It does not represent the Boards decision or opinion.
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experimentation requirement. The district court articulated the standard for discovering information technological in nature [as] research undertaken to discover information that goes beyond the current state of knowledge in the field and the court held that appellants failed to meet that standard. On appeal, the court of appeal held that the district court applied the wrong standard for discovering information. The court noted that even though the 2003 Treasury Regulations were not in effect when the amended returns were filed, the taxpayers had clearly been relying on the proposed regulations which defined the discovering information standard as eliminating uncertainty, and which was similar to the definition that was ultimately adopted. Additionally, the court noted that the IRS conceded the taxpayers could rely on the definitions from the 2003 regulations. Therefore, the court of appeal held that the district court erred by not reviewing the evidence under the definitions from the 2003 Treasury Regulations. (U.S. v. McFerrin, supra, 570 F.3d 672, 678.) STAFF COMMENTS Appellants argue that PSCs projects were too numerous to examine individually to determine whether each innovative project met the requirements of IRC section 41(d). So, to identify qualified research activities, PwC subject matter experts met with PSC employees and explained the requirements of IRC section 41(d) and other relevant law and guidance. The PSC employees and PwC consultants then identified categories of qualifying activities without tying them to specific projects and determined the amounts of time that PSC personnel spent on those activities. Appellants claim that this methodology has been validated by the courts and audited successfully by the IRS for many years. The Appeals Division is not aware of any published case that has ruled that an activity can be determined to be a qualifying research activity under the four-part test of IRC section 41(b) without considering that activity in the context of a specific research project or a sampling of research projects. At the hearing, appellants should be prepared to explain specifically how the cases they cite support the proposition that qualified research activities can be estimated based on employee statements without an analysis of specific business components. In its discussion of the business component element of the four-part test, the court in Union Carbide indicated that an examination of each project was necessary to identify the business component. There, the court held that:
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in order to analyze the discrete business components at issue, for each project we must separate the activities that relate to the improvement of the production process from the activities that relate to the product being produced. (Treas. Reg. 1.41-4(b)(1). The fact that activities that relate to the product being produced do not satisfy the qualified research tests of IRC section 41(d) will have no impact on whether the activities that relate to the improvement of the production process satisfy those tests. (Union Carbide, supra at 213.) For purposes of satisfying the requirement that substantially all of the activities . . . constitute elements of a process of experimentation, the court in Trinity Indus. v. United States (N.D. Texas 2010) 691 F. Supp. 2d 688, explained the application of the business component shrinking back rule as follows: The requirements of [IRC] section 41(d) . . . are to be applied first at the level of the discrete business component, that is, the product, process, computer software, technique, formula, or invention to be held for sale, lease, or license, or used by the taxpayer in a trade or business of the taxpayer. If these requirements are not met at that level, then they apply at the most significant subset of elements of the product, process, computer software, technique, formula, or invention to be held for sale, lease, or license. This shrinking back of the product is to continue until either a subset of elements of the product that satisfies the requirements is reached, or the most basic element of the product is reached and such element fails to satisfy the test. As staff understands the courts analysis, the four-part test is required to be applied to each individual project in order to determine whether the totality of the activities involved in the project met the requirements of IRC section 41(d) at that level of business component. Thus, while expenses may be estimated provided that there is an adequate basis for estimation, it seems that the courts have interpreted IRC section 41 to require an analysis of each business component to determine whether qualified research was conducted. Finally, for purposes of the process of experimentation element, the court in Union Carbide explained that a hypothesis must be developed and tested in a scientific manner, the results of those tests must be analyzed and the hypothesis must either be refined or discarded and a new one developed and the foregoing steps repeated. Furthermore, the court held that [w]hile the process of experimentation need identify only one alternative, it generally should be capable of evaluating more than one alternative. (Treas. Reg. 1.41-4(a)(5)(i).) If only one alternative is tested, for that alternative to constitute a process of experimentation the taxpayer should conduct a series of experiments with the alternative in order to develop the business component. (italics in original) (Union Carbide supra at 225.) It appears to the Appeals Division that in order to make a determination in accordance with the
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foregoing description as to whether certain activities result in the process of experimentation, the steps involved in the development of a specific project would need to be examined. Based on these analyses, it appears to staff that the courts in Union Carbide and Trinity Industries determined that the proper application of IRC section 41(d) requires an examination of the claimed qualifying research activities as those activities pertain to a specific project which is substantiated by documentation and other evidence. At the hearing, appellants should be prepared to cite and discuss any case in which a court has validated the methodology of the Study and also to identify any instances in which the IRS has accepted the methodology as a sufficient basis for allowing the R&D credit. Respondent should be prepared to explain the basis for its determination that PSC engaged in some qualifying research, including identifying the business components and describing the instances in which the process of experimentation element was satisfied. ISSUE (2): If appellants have established that PSC engaged in qualified research as defined in IRC section 41(d), whether appellants have met their burden of proving qualified research expenses and the claimed research and development (R&D) tax credit under IRC section 41 for the tax years at issue. Contentions Appellants Contentions Appellants contend that there is no specific statutory recordkeeping requirement for the R&D credit and the IRS considered and rejected establishing a stringent recordkeeping requirement because it would place an unnecessary and costly recordkeeping burden on taxpayers. Appellants further contend that taxpayers who claim R&D credit are required to comply with the general substantiation standards of Treasury Regulation 1.6001-1 as demonstrated in Union Carbide v. Commissioner, T.C. Memo. 2009-50, in which the U.S. Tax Court held that a taxpayer may substantiate its claimed R&D tax credit through a wide variety of documentation and testimony. Appellants further contend that the court accepted reconstruction methodologies for the claimed QREs and base period information, the use of historical data, testimony corroborated by documents and testimony alone, and estimation consistent with the principles of Cohan v. Commissioner (2d Cir. 1930) 39 F.2d 540.
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Appellants assert that respondent agrees that PSC engaged in qualified research activities and thus validated the methodology PSC used to determine its credit and accepted PSCs documentation provided at audit as proper evidentiary support of its qualified activities and expenditures. However, appellants contend, respondent arbitrarily and unreasonably concluded that PSC did not meet its burden of proof. (App. Opening Br., pp. 21-22.) In support of their position, appellants state that PwC implemented methods and procedures to ensure the accuracy and authenticity of the signed time surveys that are the basis of the PSCs claimed R&D credit. Appellants point to the following evidence: Written testimony of PSCs management team corroborated by 13 binders full of representative samples of testing and design documentation Interview transcripts and various other items of corroborating evidence. Respondents representatives were allowed to tour PSCs facility and were provided with thousands of pages of documentation to support the R&D study. Various types of corroborating evidence, including SAS documents and signed declarations by key PSC personnel. Appellants maintain that the foregoing are the same type of documents allowed by the court in Union Carbide, supra for estimation of the R&D credit under the principles of Cohan, supra. (App. Opening Br., pp. 22-23.) Appellants contend that respondent has ignored the accurate and truthful testimony of PSCs valued employee-manager[s] who are hands on in the R&D process and has offered no evidence to rebut the testimony of PSCs declarants. Further, appellants contend that respondent does not explain how its estimation results in a more accurate R&D credit amount. Appellants argue that respondent believes its estimation based on an arbitrary overall reduction . . . is more accurate than a well-reasoned study based on the evidence described above. Appellants state that they did not claim expenses for non-qualified and post-production activities and that they claimed on average only 16 to 21 percent of PSCs total expenses for the years in issue despite the fact that PSCs survival depended on its R&D activities. Appellants present a table showing the amount of claimed average wage QREs for each PSC department compared with the amount for each department allowed by respondent.
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Appellants argue that the comparisons demonstrate the arbitrary nature of respondents unreasonable estimation. (App. Opening Br., pp. 24-25.) In a reply brief, appellants assert that respondent does not understand the methodology of the study as evidenced by respondents assertion that the time surveys did not account for employee time spent on non-qualified activities. Appellants contend that the Study was designed to ensure the credit was only taken for qualified activities by assigning specific activities to each Department to accurately capture each individuals time associated with Qualified and Non-Qualified activities within each department. Appellants further contend that this methodology resulted in precise computations of qualified time for each specific individual on a department-by-department basis. Appellants also submit as another example of respondents failure to comprehend respondents observation that appellants did not distinguish between simple packages and innovative projects in terms of qualified research activities. Appellants maintain that innovative orders were described in detail in the opening brief and numerous audit submissions and describe them as requiring extensive research to resolve uncertainties related to both the complexity of new product design and ability. (App. Reply Br., pp. 45.) Appellants assert that respondents denial of R&D credit for activities in the Quality, Customer Service/Estimator, and Transportation departments was erroneous as the same methodology was used for these departments. Appellants also state that respondent did not focus on those departments during the audit and did not provide a detailed explanation for the denial. Appellants further assert that they corrected the error in the reference to PSCs 1,100 projects per month by explaining in the IDR 10 that they meant that PSC worked on 1,100 orders per month. Regardless of the error, however, appellants contend that the number of projects is not critical in determining the total amount of [QREs] because the amount of credit claimed was not based on project accounting. Appellants further argue that designation of PSCs activities in terms of orders or projects is not meaningful in describing a count of qualified projects, which is a term of art for R&D credit purposes. (App. Reply Br., pp. 7-8.) Appellants point out that respondent determined that three of the five sampled projects involved qualified research activities and the other two (Joint Juice and Guardian Products) were not
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qualified because they were outside the tax years in issue. Appellants contend that they presented supporting documentation, SAS entries and project design and specification blue prints, showing that employees engaged qualified activities for the Joint Juice and Guardian Products projects during the relevant tax years. Because respondent disallowed the credit for these two projects only on the basis that they occurred outside the relevant period and appellants have presented evidence that some qualified activities did occur within the relevant period, appellants contend that one must conclude the projects did involve qualifying activities. Furthermore, appellants contend that although respondent maintains that it made a fair and reasonable estimate, respondent has not explained why 20 percent of appellants claimed R&D credit was allowed when respondent determined that three of the five projects, or 60 percent, involved qualified activities. (App. Reply Br., pp. 9-10.) In their supplemental brief, appellants argue that respondent seeks to impose a project accounting requirement to substantiate the claimed R&D credit but avoids framing the issue in this manner because the applicable law requires respondent to accept and use a taxpayers records prepared and maintained in the regular course of business to substantiate the claimed credit. Appellants repeat their contentions that (1) respondent arbitrarily disallowed 80 percent of the claimed credit and (2) respondent fails to explain why the R&D credit study and other evidence provided by appellants are insufficient to meet the burden of proof. Appellants assert that respondent must state how the evidence is deficient and why its arbitrary denial is correct and reasonable. (App. Supp. Br., pp. 1-2.) Appellants cite legislative materials stating that wages must be allocated between qualified services and other services in a consistent manner in accordance with Treasury regulations. Appellants also summarize IRS Field Service Advice 002184 (FSA), which provided guidance for determining an employees qualified and non-qualified wages. 4 Appellants assert that the R&D credit study used the methodology set forth in the FSA. Appellants then state that PwC subject matter experts met with PSC employees and PSC and PwC identified categories of qualifying activities and
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The FSA discusses the issues of whether holidays, vacation or other leave of an employee engaged in qualified research should be included as time actually spent by the employee in the performance of qualified services and whether that time should be accounted for in making the allocation of time spent between qualifying services and non-qualifying services. The FSA concludes that such time off may not be considered as time spent performing qualified services nor may it be considered for purposes of allocating between time spent on qualifying and non-qualifying services. However, compensated leave is included as wages for purposes of determining the amount of in-house research expenses. Appeal of Pacific Southwest Container, et al. NOT TO BE CITED AS PRECEDENT - Document prepared for Board review. It does not represent the Boards decision or opinion.
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that process is fully documented in the Study. (App. Supp. Br., pp. 2-3.) Appellants repeat their contention that they presented evidence of qualified activities within the audit period for the two sample projects disallowed by respondent. Finally, appellants contend that PSC conducted research activities that met the requirements of IRC section 41(d) which were supported by PSCs business records and the Study. Furthermore, appellants contend that the methodology used by the Study has been validated by the courts and audited successfully by the IRS for many years. Finally, appellants contend that the McFerrin holding does not provide respondent with blanket authority to ignore any and all documents . . . simply by labeling it as reconstruction. Thus, respondent may consider the Study in conjunction with other available evidence but cannot simply deny the credit without justification. (App. Supp. Br., pp. 5-6.) Respondents Contentions Respondent determined that PSC engaged in some qualified research and appellants were entitled to some fair and reasonable estimate of QREs. Respondent contends that it made such an estimate when it agreed to allow 20 percent of appellants claimed R&D credit. Respondent further states that a reasonable, good faith estimate [was] based upon a totality of the evidence which, as stated above, included the following information: Appellants claimed PSC engaged in 1,100 new projects every month until the response to IDR 10 dated February 8, 2008, in which they revised the number to 400 new projects every month. PSCs company profile states PSCs operation generates nearly 1,000 different jobs per month, including 100-200 brand new designs. PSCs thousands of projects were narrowed down to 33 large projects, of which five were selected by respondent for a more detailed analysis and two of those five did not qualify for R&D credit. PSC employee Darrin Jones statement that PSC engaged in 15 to 25 new projects per day which amounts to approximately 330 to 550 new projects per month. The contrasting statement of PSC employee Chuck Mitten that PSC engaged in 125 to 200 new projects per month. Mr. Jones statement that sometimes PSCs new projects involve discovery and sometimes
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they do not. Respondent looked to the one-page declarations in conjunction with other documentary evidence appellants provided at audit. The Joint Juice and Guardian Products projects occurred outside the tax years in issue. The R&D time surveys were unreliable, inaccurate, incomplete and wholly insufficient and were not credited by respondent. Executive wages constituted between 15 and 21 percent of total claimed QREs but these wages are not eligible as QREs. Four of the departments identified by appellants as engaged in qualified research activities were found at audit to be part of the post-production process which are excluded under IRC section 41(d)(4)(A) & (D). (Resp. Opening Br., pp. 10-11.) Respondent contends that this Board is not required to accept appellants reconstruction of expenses which was made years after the fact. Respondent recounts statements initially made by appellants witnesses during the audit to the effect that PSC engages in an average of 1,100 projects per month and appellants are only claiming costs associated with the R&D activities related to its innovative projects. Respondent asserts that the inference drawn from these statements is that appellants have approximated which of their operations might involve research; that appellants claim of R&D credit was based upon an estimation of what constituted alleged qualified research, and an estimation of qualified research expenses. Respondent contends that QREs are only allowed after appellants substantiate the qualified research activities and an estimation of such activities is not permitted. (Resp. Opening Br., pp.12-13.) Respondent points out that the information provided in appellants response to IDR 10 (the average number of 400 projects per month and 100 to 300 of those are successful) contrasts with information on PSCs Company Profile on its website stating that PSC generates nearly 1,000 different jobs per month including 100-200 brand new designs. Respondent further asserts that qualified research has a specific definition under IRC section 41(d)(1) and the terms new project or new concept fail to recognize the definition and statutory requirements of qualified research and fail to
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provide any meaningful information as to what appellants were doing with these new projects or concepts. Respondent provides a closer examination of the interview statements made by Mr. Jones and Mr. Mitten. Respondent notes that Mr. Jones estimated approximately 440 new projects per month but also stated that sometimes you can leverage a hundred percent of what you need to know off of things youve done prior. Respondent concludes that Mr. Jones statement was submitted as an estimate of PSCs qualified research activities. Respondent also notes that Mr. Mitten estimated approximately 163 projects per month which is less than half of the new projects claimed by Mr. Jones and by appellants in their response to IDR 10. In addition, respondent contends that calling an activity a brand new item does not satisfy the statutory requirements of IRC section 41(d). (Resp. Opening Br., pp. 13-14.) Finally, respondent concludes that the institutional knowledge places the total number of new projects closer to the range of 100 to 200 per month and that calling an activity a new project does not necessarily equate to qualified research. Respondent further notes that appellants inexactitude of using the term new project required that respondent deny some portion of the claimed R&D credit. Moreover, appellants continually adjusted downward their own representations of activities that constituted qualified research so respondent concluded that appellants did not meet their burden of proving their initial R&D credit claim. (Resp. Opening Br., p.15.) With respect to the Union Carbide case relied upon by appellants, respondent first notes that the court found that some, but not all, of the taxpayers projects constituted qualified research. In that case, the taxpayer and the IRS agreed to a sample of five of the taxpayers largest projects. Only two of those projects qualified for the claimed R&D credit whereas in this case three of appellants projects were found to be qualified. Furthermore, respondent states, the taxpayer in Union Carbide presented voluminous contemporaneous documentation in formulating its estimations and properly identified over 800 projects constituting qualified research activities. The taxpayer engaged a team of experts who spent over 5,000 hours reviewing over 120,000 pages of technical documents, conducting electronic searches, interviewing 157 current and former Dow and Union Carbide employees, and visiting numerous libraries. The technical documents included, but were not limited to, R&D project reports and project memoranda, definition of technology reports, technology managers reports,
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UNIPOL strategic run plans and tactical run plans, and latex process and commercial product information. (Resp. Opening Br., pp. 15-16.) The court found the criteria applied by the team of experts in its examination of the taxpayers activities to closely track the definition of qualified research under IRC section 41(d). For each of the identified runs, the team defined the activity by providing a run description, the plant locations and specific manufacturing units, the product(s) made during the activities and the production volume, the raw materials and catalysts used, the start and end dates of the activities, any other relevant scientific information and the documents related to the identified runs. Respondent also notes that the decision spends more than 50 pages discussing the experts analysis in great detail, going project-byproject to substantiate the claimed R&D credit. Respondent concludes that the taxpayer in Union Carbide provided contemporaneous documentation accompanied by an analysis of those documents, thus making the form and detail of those records sufficiently useable. (Resp. Opening Br., pp. 16-17.) In contrast, respondent contends that appellants submitted a non-contemporaneous credit study that failed to address specific qualified research activities, failed to apply the criteria of IRC section 41(d) separately to each claimed project, failed to address the number of projects for which credit was claimed, and failed to demonstrate the required nexus between qualified research and QREs. Respondent also states that the Union Carbide court relied upon expert testimony, corroborated by fact witnesses and documentary evidence which was the standard applied by the Court of Appeal in McFerrin . Respondent further states that testimony is generally understood as a declaration made under oath in response to an interrogation by a lawyer or authorized public official. In Union Carbide, respondent indicates that the court evaluated the expert testimony in light of all the evidence in the record and was not bound by the opinion of any expert witness. With respect to specific examples of types of other evidence, respondent cites Fudim in which the court described the record to include contemporaneous letters and scientific articles and most importantly, contemporaneously, petitioner was awarded two patents. (Resp. Opening Br., pp. 17-18.) Respondent further contends that appellants employee interviews are not testimony (because they were not subject to cross-examination) but constitute other evidence akin to institutional
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knowledge. Although such institutional knowledge may be considered in conjunction with testimony and documentary evidence, respondent contends that much of appellants documentary evidence was in the form of the R&D credit study which reconstructed alleged activities years after the fact rather than contemporaneous documents detailing qualified research activities or expenses. Based on the foregoing, respondent contends that it reached a reasonable conclusion that PSC was entitled to some of the R&D credit claimed. (Resp. Opening Br., pp. 18-19.) In the reply brief, respondent provided the following responses to the bulleted points raised in appellants briefs: Appellants are unclear about the reasons that respondent allowed only 20 percent of the claimed credit. Response: Respondents reasonable estimate was based on the Cohan principles and respondent outlined its reasons in the opening brief. Appellants are unclear why respondents opening brief devoted so much space to a discussion of the correct number of projects when appellants did not calculate the credit on a project basis Response: Appellants failed to consider whether each activity met the requirements of IRC section 41(d) and, as a result, appellants methodology failed to demonstrate a nexus between the activity and the costs claimed. For these reasons, respondent agreed to the sampling method at audit. The law requires respondent to accept appellants documentation without requiring contemporaneous documentation or specific records. Response: Appellants cite no legal authority and the relevant treasury regulation (Treas. Reg. 1.41-4(d)) requires records in sufficiently useable form and detail to substantiate that the expenditures are eligible for the credit. The McFerrin court required contemporaneous letters, scientific articles and patents. Respondent did not have the authority to reject appellants documentation. Response: Appellants records were not in sufficiently useable form or detail and as the McFerrin court held, no weight should be afforded taxpayer reconstructions. On that basis, respondent had the authority to reject appellants documentation.
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The court in Union Carbide allowed testimony taken alone as proof of qualification for the R&D credit. Response: Appellants support their assertion with an incorrect pinpoint citation and the assertion fails for a number of reasons. First, the court describes at length the documentation and the experiments of the anti-coking project and the application of the four-part test to that project. Specifically, the court recites that Union Carbide documented the results of its analysis of the anti-coking project in a formal project report and reported the results of two pretreatments in several informal reports and memoranda. Union Carbide also used the information gathered during the anti-coking project in the course of its business. The difference between the Union Carbide anti-coking project and the projects of this appeal is that Union Carbide proved that the requirements of IRC section 41(d) had been met before moving on to the determination of QREs. Moreover, the testimony of the Union Carbide employees was grounded in a credible evidentiary basis because the claimed qualified research activities were substantiated by documentation and analysis in a formal project report and other documents. Furthermore, the Union Carbide court did not allow testimony taken alone but rather made its determination on the basis of the entire record which included the formal project report and voluminous documentation in addition to the testimony. Finally, the McFerrin court held that testimony and other evidence needs to be examined to determine a fair estimate.
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The determination as to whether executives wages are qualified should be based on the actual activities performed rather than the title and rank. Response: The statements do not describe the actual activities of the executives except Mr. Mayols ambiguous claim that PSC was making large capital investments in different machinery used in research and development. I am directly involved in purchasing decisions for machinery used for manufacturing test runs and prototype fabrication. This was the only evidence submitted by appellants and it describes an activity that is not qualified research. Congress intended to exclude such executives wages as QREs in Treasury Regulation 1.412(c)(2) which provides that direct supervision does not include supervision by a higher-level manager to whom first-line managers report, even if a qualified research scientist. This is a
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presumption that executives wages do not qualify and appellant has provided nothing to overcome this presumption by proving PSCs executives were engaged in actual qualified research. Respondent did not provide specific evidence of the unreliability of the forms and narratives in the study. Response: Appellants bear the burden of proving their entitlement to R&D credits and their unsubstantiated assertions do not shift the burden to respondent. (Resp. Reply Br., pp. 1-9.) Applicable Law Treasury Regulation 1.41-2(a)(1) provides generally that an in-house research expense of the taxpayer or a contract research expense of the taxpayer is a qualified research expense only if the expense is paid or incurred by the taxpayer in carrying on a trade or business of the taxpayer. With respect to the services provided by employees of the taxpayer, subdivisions (c)(1) and (c)(2) of Treasury Regulation 1.41-2 provide in part that (c)(1) The term engaging in qualified research as used in [IRC] section 41(b)(2)(B) means the actual conduct of qualified research (as in the case of a scientist conducting laboratory experiments). (c)(2) The term direct supervision as used in [IRC] section 41(b)(2)(B) means the immediate supervision (first-line management) of qualified research (as in the case of a research scientist who directly supervises laboratory experiments, but who may not actually perform experiments). Direct supervision does not include supervision by a higher-level manager to whom first-line managers report, even if that manager is a qualified research scientist. Treasury Regulation 1.41-4(d), expressly effective for 2003 and stated by the IRS to govern the tax years in issue as well, 5 sets forth the following substantiation requirement for IRC
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5
66 Federal Register 66,367 (2001 proposed regulation); T.D. 9104, 69 Federal Register 22, 26 (in final regulation issued in 2003, IRS states: "[f]or taxable years ending before December 31, 2003, the IRS will not challenge return positions that are consistent with these final regulations.").
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section 41 credit claims: (d) Recordkeeping for the research credit. A taxpayer claiming a credit under section 41 must retain records in sufficiently usable form and detail to substantiate that the expenditures claimed are eligible for the credit. For the rules governing record retention, see Sec. 1.6001-1. To facilitate compliance and administration, the IRS and taxpayers may agree to guidelines for the keeping of specific records for purposes of substantiating research credits. Treasury Regulation 1.6001-1(a) provides that: (a) In general. Except as provided in paragraph (b) of this section, any person subject to tax under subtitle A of the Code . . . or any person required to file a return of information with respect to income, shall keep such permanent books of account or records, including inventories, as are sufficient to establish the amount of gross income, deductions, credits, or other matters required to be shown by such person in any return of such tax or information. Other than Treasury Regulation 1.41-4(d) and its cross-reference to these general recordkeeping requirements, there is no specific recordkeeping requirement under IRC section 41. In enacting the federal Tax Relief Extension Act of 1999 that renewed the IRC section 41 credit, Congress in a conference report expressly rejected the IRS proposed regulation that included a specific recordkeeping requirement. 6 Hence, the Treasury Department in 2001 stated that the 2001 proposed regulations do not contain a specific recordkeeping requirement beyond the requirements set out in [IRC] section 6001 and the regulations thereunder. (Treasury Decision (T.D.) 9104, 2004-1 Cumulative Bulletin (C.B.) 406.) Thus, when the IRS issued the current regulation as a proposed regulation in 2001, it stated: Taxpayers must be provided reasonable flexibility in the manner in which they substantiate their research credits. Accordingly the failure to keep records in a particular manner (so long as such records are in sufficiently usable form and detail to substantiate that the expenditures claimed are eligible for the credit) cannot serve as a basis for denying the credit. 7
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6
In 1998, the IRS issued proposed regulations containing a requirement that the credit be allowed only where the taxpayer recorded the results of the claimed credit qualifying experiments. See REG-105170-97, at 63 Federal Register 66,503, Document 98-34970 (also available at 1998 Tax Notes Today (TNT) 234-84). However, when Congress renewed the IRC section 41 credit in 1999, it included conference report language that rejected the proposed experiment-specific substantiation requirement: The conferees are concerned about unnecessary and costly recordkeeping burdens and reaffirm that eligibility for the credit is not intended to be contingent on meeting unreasonable recordkeeping requirements. H.R. Rep. No. 106-478, page 132 (1999), Document 1999-36730 (also available at 1999 TNT 223-7). Treasury Proposed Regulation REG-112991-01, 66 Federal Register at 66,366.
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In Cohan v. Commissioner, supra, 39 F.2d 540, 543-544, the court held that the former Board of Tax Appeals (which was the equivalent of the current United States Tax Court) could not completely disallow travel and entertainment expenses in view of the fact that the Board found the taxpayer incurred such expenses and such expenses were allowable for deduction. While the court recognized the taxpayer had not kept expense records, the court nonetheless held that [a]bsolute certainty in such matters is usually impossible and is not necessary; the Board should make as close an approximation as it can, bearing heavily if it chooses upon the taxpayer whose inexactitude is of his own making. Congress in 1962 amended the IRC to require substantiation of any claimed travel and entertainment expense, 8 but did not overrule the application of Cohan to other areas. Thus, in Fudim v. Commissioner, supra, the tax court held that a taxpayer could claim the R&D credit even without substantiation of specific amounts claimed if the evidence shows the taxpayer engaged in qualified research as defined in IRC section 41 and where there was some basis for estimating the amount of such research. Because the taxpayer had two income sources consulting and the patented research described above the tax court estimated the time spent on R & D under the principles set forth in Cohan v. Commissioner 9 and determined that 80 percent of the taxpayers income came from research that qualified for the credit. However, Eustace v. Commr (7th Cir. 2002) 312 F.3d 905 (Eustace) , the tax court sustained the IRS denial of amended return claims of the R&D credit where the credit was not claimed on the 1990, 1991, and 1992 federal returns for the subchapter S corporation in which the taxpayers were shareholders. On December 30, 1993, the S corporation hired a new tax manager, who determined that the S corporation should claim research credits for the 1990, 1991, and 1992 tax years. The tax manager interviewed employees and delineated the employees and activities he believed qualified for the research credit. The tax court held the taxpayers reconstruction of qualifying expenses was unreliable, inaccurate, incomplete, and wholly insufficient to establish what various workers did and
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IRC section 274(d). Fudim, supra, page 12.
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whether such expenses qualify for the research credit. While the court also held the taxpayers had not presented sufficient evidence to establish the claimed activities met the requirements for qualified research, the court suggested the research credit might be applicable to the subcomponents of those activities. The taxpayers acknowledged that they did not have the substantiation necessary to tie salaries to activities at the subcomponent level, but argued under Cohan the court would be required to make a reasonable allocation of salaries to functionality. However, the court disagreed holding that Cohan did not require it to make such an allocation. In short, the taxpayer must demonstrate some rational basis on which an estimate can be made 10 that goes beyond mere speculation, unsupported allegations, or mere inference. 11 Such a rational basis does not require project-specific documentation. In Union Carbide, the tax court found that two of the taxpayers five claimed projects involving conversion of raw hydrocarbon feedstocks into olefins were substantiated based on estimated base period wages, forecasts of material costs, and estimated project costs where no accounting records were available, and employee testimony regarding claimed wage expenses. Specifically, the court stated that; the documents that petitioner produced were sufficient to substantiate its claim that the MATRIC team identified all of the scientific research projects that occurred during the base period and were sufficiently detailed to allow the MATRIC team to make reasonable determinations as to the duration and production quantities of its intended runs. On that basis, the court held that the taxpayer complied with the substantiation standard of Treasury Regulation 1.41-4(d), which requires that the taxpayer retain records in sufficiently usable form and detail to substantiate that the expenditures claimed are eligible for the credit. In 2005 and 2008, the IRS issued public website 12 audit manuals for auditing IRC section 41 claims, including claims predicated on prepackaged credit studies. Since R&TC section 23609 expressly incorporates IRC section 41 except for the express modifications not relevant to this appeal, the analysis of IRC section 41 in these IRS audit manuals is relevant to interpreting the California R&D
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10
Vanicek v. Commissioner (1985) 85 T.C. 731, 742-43. Appeal of Albert Hakim, 90-SBE-005 (Aug. 1, 1990). The manuals are available at www.irs.gov.
11
12
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credits claimed by appellants. The 2008 IRS Audit Techniques Guide to IRC section 41 states as follows: It is strongly recommended that examiners resist relying exclusively on these prepackaged submissions. Instead, the examiner should independently determine the documents and other information necessary, including testimony, to substantiate the taxpayers claim for the research credit.Determine whether the activities constitute qualified research under section 41(d)determine whether the taxpayer conducted interviews of current (and former) employees and contractors in order to formulate their determination. Advise the taxpayer that this information may need to be corroborated through supporting documentation, and additional interview procedures may be implemented for the examination. A tour of all relevant company operations, including research facilities, should also be considered and arranged. (Emphasis added). With respect to estimates, the 2005 IRS audit manual states as follows: Estimation methods are permitted only in cases where the sole issue is the exact amount paid or incurred in the qualified research activity. Accordingly, taxpayers must have factual support for every assumption underlying their estimates to meet their burden of proof. (Footnote omitted). STAFF COMMENTS Here, appellants claimed QREs assume that substantially all of the activities comprising the innovative projects were qualified research activities and the QREs were substantiated by the SAS and employee records. Respondent argues that the evidence relied upon by appellants does not substantiate the wages claimed are QREs because appellants have not proven the entire amount of qualified research activities claimed. At the hearing, respondent should be prepared to explain whether the evidence submitted by appellants is a sufficient basis for estimating QREs assuming that substantially all of the activities involved in one or more of the projects are found to be qualified research activities. In addition, respondent should be prepared to point to any deficiencies in the SAS reporting and other information relied upon by appellants. Respondent also argues the Study fails to show any nexus between the wage amounts claimed and the activities that are claimed as qualified research. At the hearing, respondent should be prepared to explain and give examples of evidence that would establish a sufficient nexus to justify the wage amounts as QREs. With respect to the compensation of the executives claimed as QREs, respondent argues that the executives do not qualify pursuant to IRC section 41(b) and Treas. Reg. 1.41-1(c)(2) and that
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there is no nexus between the activities claimed in the statements and any qualified research activity. Appellants argue that the executives for whom the QREs are claimed were directly involved in qualified research activities and the QREs are the amounts paid to them for their work in that capacity. In reply, respondent contends that the statements do not describe the activities performed by executives except Mr. Mayols ambiguous claim that he was directly involved in purchasing decisions for machinery used for manufacturing test runs and prototype fabrication. Respondent contends that the activity described by Mr. Mayol does not constitute qualified research. At the hearing, appellants should be prepared to explain and give examples of the evidence that they claim shows that executives were involved hands on in qualified research activities as opposed to higher-level management supervision of qualified research activities which is not qualifying pursuant to Treas. Reg. 1.41-1(c)(2). /// /// ///
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STATE BOARD OF EQUALIZATION CORPORATION FRANCHISE TAX APPEAL

In the Matter of the Appeal of:

Michelle Waggener, Manager PricewaterhouseCoopers Jason Riley, Tax Counsel

For Franchise Tax Board:

Appellant Pacific Southwest Container, Inc. is headquartered in Modesto, CA

Appeal of Pacific Southwest Container, et al.

Appeal of Pacific Southwest Container, et al.

Appeal of Pacific Southwest Container, et al.

(Resp. Opening Br., pp. 7-8.)

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IRC section 274(d). Fudim, supra, page 12.

Appeal of Pacific Southwest Container, et al.

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Appeal of Pacific Southwest Container, et al.

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