§41 — Credit for increasing research activities
197 citing cases
Statute Text — 26 U.S.C. §41
For purposes of section 38, the research credit determined under this section for the taxable year shall be an amount equal to the sum of—
20 percent of the excess (if any) of—
the qualified research expenses for the taxable year, over
the base amount,
20 percent of the basic research payments determined under subsection (e)(1)(A), and
20 percent of the amounts paid or incurred by the taxpayer in carrying on any trade or business of the taxpayer during the taxable year (including as contributions) to an energy research consortium for energy research.
For purposes of this section—
The term “qualified research expenses” means the sum of the following amounts which are paid or incurred by the taxpayer during the taxable year in carrying on any trade or business of the taxpayer—
in-house research expenses, and
contract research expenses.
The term “in-house research expenses” means—
any wages paid or incurred to an employee for qualified services performed by such employee,
any amount paid or incurred for supplies used in the conduct of qualified research, and
under regulations prescribed by the Secretary, any amount paid or incurred to another person for the right to use computers in the conduct of qualified research.
Clause (iii) shall not apply to any amount to the extent that the taxpayer (or any person with whom the taxpayer must aggregate expenditures under subsection (f)(1)) receives or accrues any amount from any other person for the right to use substantially identical personal property.
The term “qualified services” means services consisting of—
engaging in qualified research, or
engaging in the direct supervision or direct support of research activities which constitute qualified research.
If substantially all of the services performed by an individual for the taxpayer during the taxable year consists of services meeting the requirements of clause (i) or (ii), the term “qualified services” means all of the services performed by such individual for the taxpayer during the taxable year.
The term “supplies” means any tangible property other than—
land or improvements to land, and
property of a character subject to the allowance for depreciation.
The term “wages” has the meaning given such term by section 3401(a).
In the case of an employee (within the meaning of section 401(c)(1)), the term “wages” includes the earned income (as defined in section 401(c)(2)) of such employee.
The term “wages” shall not include any amount taken into account in determining the work opportunity credit under section 51(a).
The term “contract research expenses” means 65 percent of any amount paid or incurred by the taxpayer to any person (other than an employee of the taxpayer) for qualified research.
If any contract research expenses paid or incurred during any taxable year are attributable to qualified research to be conducted after the close of such taxable year, such amount shall be treated as paid or incurred during the period during which the qualified research is conducted.
Subparagraph (A) shall be applied by substituting “75 percent” for “65 percent” with respect to amounts paid or incurred by the taxpayer to a qualified research consortium for qualified research on behalf of the taxpayer and 1 or more unrelated taxpayers. For purposes of the preceding sentence, all persons treated as a single employer under subsection (a) or (b) of section 52 shall be treated as related taxpayers.
The term “qualified research consortium” means any organization which—
is described in section 501(c)(3) or 501(c)(6) and is exempt from tax under section 501(a),
is organized and operated primarily to conduct scientific research, and
is not a private foundation.
In the case of amounts paid by the taxpayer to—
an eligible small business,
an institution of higher education (as defined in section 3304(f)), or
an organization which is a Federal laboratory,
For purposes of this subparagraph, the term “eligible small business” means a small business with respect to which the taxpayer does not own (within the meaning of section 318) 50 percent or more of—
in the case of a corporation, the outstanding stock of the corporation (either by vote or value), and
in the case of a small business which is not a corporation, the capital and profits interests of the small business.
For purposes of this subparagraph—
The term “small business” means, with respect to any calendar year, any person if the annual average number of employees employed by such person during either of the 2 preceding calendar years was 500 or fewer. For purposes of the preceding sentence, a preceding calendar year may be taken into account only if the person was in existence throughout the year.
Rules similar to the rules of subparagraphs (B) and (D) of section 220(c)(4) shall apply for purposes of this clause.
For purposes of this subparagraph, the term “Federal laboratory” has the meaning given such term by section 4(6) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3703(6)), as in effect on the date of the enactment of the Energy Tax Incentives Act of 2005.
for qualified research which is energy research, subparagraph (A) shall be applied by substituting “100 percent” for “65 percent”.
In the case of in-house research expenses, a taxpayer shall be treated as meeting the trade or business requirement of paragraph (1) if, at the time such in-house research expenses are paid or incurred, the principal purpose of the taxpayer in making such expenditures is to use the results of the research in the active conduct of a future trade or business—
of the taxpayer, or
of 1 or more other persons who with the taxpayer are treated as a single taxpayer under subsection (f)(1).
The term “base amount” means the product of—
the fixed-base percentage, and
the average annual gross receipts of the taxpayer for the 4 taxable years preceding the taxable year for which the credit is being determined (hereinafter in this subsection referred to as the “credit year”).
In no event shall the base amount be less than 50 percent of the qualified research expenses for the credit year.
Except as otherwise provided in this paragraph, the fixed-base percentage is the percentage which the aggregate qualified research expenses of the taxpayer for taxable years beginning after December 31, 1983, and before January 1, 1989, is of the aggregate gross receipts of the taxpayer for such taxable years.
The fixed-base percentage shall be determined under this subparagraph if—
the first taxable year in which a taxpayer had both gross receipts and qualified research expenses begins after
December 31, 1983
, or
there are fewer than 3 taxable years beginning after
December 31, 1983
, and before
January 1, 1989
, in which the taxpayer had both gross receipts and qualified research expenses.
In a case to which this subparagraph applies, the fixed-base percentage is—
3 percent for each of the taxpayer’s 1st 5 taxable years beginning after
December 31, 1993
, for which the taxpayer has qualified research expenses,
in the case of the taxpayer’s 6th such taxable year, ⅙ of the percentage which the aggregate qualified research expenses of the taxpayer for the 4th and 5th such taxable years is of the aggregate gross receipts of the taxpayer for such years,
in the case of the taxpayer’s 7th such taxable year, ⅓ of the percentage which the aggregate qualified research expenses of the taxpayer for the 5th and 6th such taxable years is of the aggregate gross receipts of the taxpayer for such years,
in the case of the taxpayer’s 8th such taxable year, ½ of the percentage which the aggregate qualified research expenses of the taxpayer for the 5th, 6th, and 7th such taxable years is of the aggregate gross receipts of the taxpayer for such years,
in the case of the taxpayer’s 9th such taxable year, ⅔ of the percentage which the aggregate qualified research expenses of the taxpayer for the 5th, 6th, 7th, and 8th such taxable years is of the aggregate gross receipts of the taxpayer for such years,
in the case of the taxpayer’s 10th such taxable year, ⅚ of the percentage which the aggregate qualified research expenses of the taxpayer for the 5th, 6th, 7th, 8th, and 9th such taxable years is of the aggregate gross receipts of the taxpayer for such years, and
for taxable years thereafter, the percentage which the aggregate qualified research expenses for any 5 taxable years selected by the taxpayer from among the 5th through the 10th such taxable years is of the aggregate gross receipts of the taxpayer for such selected years.
The Secretary may prescribe regulations providing that de minimis amounts of gross receipts and qualified research expenses shall be disregarded under clauses (i) and (ii).
In no event shall the fixed-base percentage exceed 16 percent.
The percentages determined under subparagraphs (A) and (B)(ii) shall be rounded to the nearest 1/100th of 1 percent.
At the election of the taxpayer, the credit determined under subsection (a)(1) shall be equal to 14 percent of so much of the qualified research expenses for the taxable year as exceeds 50 percent of the average qualified research expenses for the 3 taxable years preceding the taxable year for which the credit is being determined.
The credit under this paragraph shall be determined under this subparagraph if the taxpayer has no qualified research expenses in any one of the 3 taxable years preceding the taxable year for which the credit is being determined.
The credit determined under this subparagraph shall be equal to 6 percent of the qualified research expenses for the taxable year.
An election under this paragraph shall apply to the taxable year for which made and all succeeding taxable years unless revoked with the consent of the Secretary.
Notwithstanding whether the period for filing a claim for credit or refund has expired for any taxable year taken into account in determining the fixed-base percentage, the qualified research expenses taken into account in computing such percentage shall be determined on a basis consistent with the determination of qualified research expenses for the credit year.
The Secretary may prescribe regulations to prevent distortions in calculating a taxpayer’s qualified research expenses or gross receipts caused by a change in accounting methods used by such taxpayer between the current year and a year taken into account in computing such taxpayer’s fixed-base percentage.
For purposes of this subsection, gross receipts for any taxable year shall be reduced by returns and allowances made during the taxable year. In the case of a foreign corporation, there shall be taken into account only gross receipts which are effectively connected with the conduct of a trade or business within the United States, the Commonwealth of Puerto Rico, or any possession of the United States.
For purposes of this section—
The term “qualified research” means research—
with respect to which expenditures are treated as domestic research or experimental expenditures under section 174A,
which is undertaken for the purpose of discovering information—
which is technological in nature, and
the application of which is intended to be useful in the development of a new or improved business component of the taxpayer, and
substantially all of the activities of which constitute elements of a process of experimentation for a purpose described in paragraph (3).
Such term does not include any activity described in paragraph (4).
For purposes of this subsection—
Paragraph (1) shall be applied separately with respect to each business component of the taxpayer.
The term “business component” means any product, process, computer software, 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.
Any plant process, machinery, or technique for commercial production of a business component shall be treated as a separate business component (and not as part of the business component being produced).
For purposes of paragraph (1)(C)—
Research shall be treated as conducted for a purpose described in this paragraph if it relates to—
a new or improved function,
performance, or
reliability or quality.
Research shall in no event be treated as conducted for a purpose described in this paragraph if it relates to style, taste, cosmetic, or seasonal design factors.
The term “qualified research” shall not include any of the following:
Any research conducted after the beginning of commercial production of the business component.
Any research related to the adaptation of an existing business component to a particular customer’s requirement or need.
Any research related to the reproduction of an existing business component (in whole or in part) from a physical examination of the business component itself or from plans, blueprints, detailed specifications, or publicly available information with respect to such business component.
Any—
efficiency survey,
activity relating to management function or technique,
market research, testing, or development (including advertising or promotions),
routine data collection, or
routine or ordinary testing or inspection for quality control.
Except to the extent provided in regulations, any research with respect to computer software which is developed by (or for the benefit of) the taxpayer primarily for internal use by the taxpayer, other than for use in—
an activity which constitutes qualified research (determined with regard to this subparagraph), or
a production process with respect to which the requirements of paragraph (1) are met.
Any research conducted outside the United States, the Commonwealth of Puerto Rico, or any possession of the United States.
Any research in the social sciences, arts, or humanities.
Any research to the extent funded by any grant, contract, or otherwise by another person (or governmental entity).
For purposes of this section—
In the case of any taxpayer who makes basic research payments for any taxable year—
the amount of basic research payments taken into account under subsection (a)(2) shall be equal to the excess of—
such basic research payments, over
the qualified organization base period amount, and
that portion of such basic research payments which does not exceed the qualified organization base period amount shall be treated as contract research expenses for purposes of subsection (a)(1).
For purposes of this subsection—
The term “basic research payment” means, with respect to any taxable year, any amount paid in cash during such taxable year by a corporation to any qualified organization for basic research but only if—
such payment is pursuant to a written agreement between such corporation and such qualified organization, and
such basic research is to be performed by such qualified organization.
In the case of a qualified organization described in subparagraph (C) or (D) of paragraph (6), clause (ii) of subparagraph (A) shall not apply.
For purposes of this subsection, the term “qualified organization base period amount” means an amount equal to the sum of—
the minimum basic research amount, plus
the maintenance-of-effort amount.
For purposes of this subsection—
The term “minimum basic research amount” means an amount equal to the greater of—
1 percent of the average of the sum of amounts paid or incurred during the base period for—
any in-house research expenses, and
any contract research expenses, or
the amounts treated as contract research expenses during the base period by reason of this subsection (as in effect during the base period).
Except in the case of a taxpayer which was in existence during a taxable year (other than a short taxable year) in the base period, the minimum basic research amount for any base period shall not be less than 50 percent of the basic research payments for the taxable year for which a determination is being made under this subsection.
For purposes of this subsection—
The term “maintenance-of-effort amount” means, with respect to any taxable year, an amount equal to the excess (if any) of—
an amount equal to—
the average of the nondesignated university contributions paid by the taxpayer during the base period, multiplied by
the cost-of-living adjustment for the calendar year in which such taxable year begins, over
the amount of nondesignated university contributions paid by the taxpayer during such taxable year.
For purposes of this paragraph, the term “nondesignated university contribution” means any amount paid by a taxpayer to any qualified organization described in paragraph (6)(A)—
for which a deduction was allowable under section 170, and
which was not taken into account—
in computing the amount of the credit under this section (as in effect during the base period) during any taxable year in the base period, or
as a basic research payment for purposes of this section.
The cost-of-living adjustment for any calendar year is the cost-of-living adjustment for such calendar year determined under section 1(f)(3), by substituting “calendar year 1987” for “calendar year 2016” in subparagraph (A)(ii) thereof.
If the base period of any taxpayer does not end in 1983 or 1984, section 1(f)(3)(A)(ii) shall, for purposes of this paragraph, be applied by substituting the calendar year in which such base period ends for 2016. Such substitution shall be in lieu of the substitution under clause (i).
For purposes of this subsection, the term “qualified organization” means any of the following organizations:
Any educational organization which—
is an institution of higher education (within the meaning of section 3304(f)), and
is described in section 170(b)(1)(A)(ii).
Any organization not described in subparagraph (A) which—
is described in section 501(c)(3) and is exempt from tax under section 501(a),
is organized and operated primarily to conduct scientific research, and
is not a private foundation.
Any organization which—
is described in—
section 501(c)(3) (other than a private foundation), or
section 501(c)(6),
is exempt from tax under section 501(a),
is organized and operated primarily to promote scientific research by qualified organizations described in subparagraph (A) pursuant to written research agreements, and
currently expends—
substantially all of its funds, or
substantially all of the basic research payments received by it,
for grants to, or contracts for basic research with, an organization described in subparagraph (A).
Any organization not described in subparagraph (B) or (C) which—
is described in section 501(c)(3) and is exempt from tax under section 501(a) (other than a private foundation),
is established and maintained by an organization established before
July 10, 1981
, which meets the requirements of clause (i),
is organized and operated exclusively for the purpose of making grants to organizations described in subparagraph (A) pursuant to written research agreements for purposes of basic research, and
makes an election, revocable only with the consent of the Secretary, to be treated as a private foundation for purposes of this title (other than section 4940, relating to excise tax based on investment income).
For purposes of this subsection—
The term “basic research” means any original investigation for the advancement of scientific knowledge not having a specific commercial objective, except that such term shall not include—
basic research conducted outside of the United States, and
basic research in the social sciences, arts, or humanities.
The term “base period” means the 3-taxable-year period ending with the taxable year immediately preceding the 1st taxable year of the taxpayer beginning after December 31, 1983.
For purposes of determining the amount of credit allowable under subsection (a)(1) for any taxable year, the amount of the basic research payments taken into account under subsection (a)(2)—
shall not be treated as qualified research expenses under subsection (a)(1)(A), and
shall not be included in the computation of base amount under subsection (a)(1)(B).
For purposes of applying subsection (b)(1) to this subsection, any basic research payments shall be treated as an amount paid in carrying on a trade or business of the taxpayer in the taxable year in which it is paid (without regard to the provisions of subsection (b)(3)(B)).
The term “corporation” shall not include—
an S corporation,
a personal holding company (as defined in section 542), or
a service organization (as defined in section 414(m)(3)).
For purposes of this section—
In determining the amount of the credit under this section—
all members of the same controlled group of corporations shall be treated as a single taxpayer, and
the credit (if any) allowable by this section to each such member shall be determined on a proportionate basis to its share of the aggregate of the qualified research expenses, basic research payments, and amounts paid or incurred to energy research consortiums, taken into account by such controlled group for purposes of this section.
Under regulations prescribed by the Secretary, in determining the amount of the credit under this section—
all trades or businesses (whether or not incorporated) which are under common control shall be treated as a single taxpayer, and
the credit (if any) allowable by this section to each such person shall be determined on a proportionate basis to its share of the aggregate of the qualified research expenses, basic research payments, and amounts paid or incurred to energy research consortiums, taken into account by all such persons under common control for purposes of this section.
The regulations prescribed under this subparagraph shall be based on principles similar to the principles which apply in the case of subparagraph (A).
Under regulations prescribed by the Secretary, rules similar to the rules of subsection (d) of section 52 shall apply.
In the case of partnerships, the credit shall be allocated among partners under regulations prescribed by the Secretary.
Under regulations prescribed by the Secretary—
If a person acquires the major portion of either a trade or business or a separate unit of a trade or business (hereinafter in this paragraph referred to as the “acquired business”) of another person (hereinafter in this paragraph referred to as the “predecessor”), then the amount of qualified research expenses paid or incurred by the acquiring person during the measurement period shall be increased by the amount determined under clause (ii), and the gross receipts of the acquiring person for such period shall be increased by the amount determined under clause (iii).
The amount determined under this clause is—
for purposes of applying this section for the taxable year in which such acquisition is made, the acquisition year amount, and
for purposes of applying this section for any taxable year after the taxable year in which such acquisition is made, the qualified research expenses paid or incurred by the predecessor with respect to the acquired business during the measurement period.
The amount determined under this clause is the amount which would be determined under clause (ii) if “the gross receipts of” were substituted for “the qualified research expenses paid or incurred by” each place it appears in clauses (ii) and (iv).
For purposes of clause (ii), the acquisition year amount is the amount equal to the product of—
the qualified research expenses paid or incurred by the predecessor with respect to the acquired business during the measurement period, and
the number of days in the period beginning on the date of the acquisition and ending on the last day of the taxable year in which the acquisition is made,
In the case of an acquiring person and a predecessor whose taxable years do not begin on the same date—
each reference to a taxable year in clauses (ii) and (iv) shall refer to the appropriate taxable year of the acquiring person,
the qualified research expenses paid or incurred by the predecessor, and the gross receipts of the predecessor, during each taxable year of the predecessor any portion of which is part of the measurement period shall be allocated equally among the days of such taxable year,
the amount of such qualified research expenses taken into account under clauses (ii) and (iv) with respect to a taxable year of the acquiring person shall be equal to the total of the expenses attributable under subclause (II) to the days occurring during such taxable year, and
the amount of such gross receipts taken into account under clause (iii) with respect to a taxable year of the acquiring person shall be equal to the total of the gross receipts attributable under subclause (II) to the days occurring during such taxable year.
For purposes of this subparagraph, the term “measurement period” means, with respect to the taxable year of the acquiring person for which the credit is determined, any period of the acquiring person preceding such taxable year which is taken into account for purposes of determining the credit for such year.
divided by the number of days in the acquiring person’s taxable year.
If the predecessor furnished to the acquiring person such information as is necessary for the application of subparagraph (A), then, for purposes of applying this section for any taxable year ending after such disposition, the amount of qualified research expenses paid or incurred by, and the gross receipts of, the predecessor during the measurement period (as defined in subparagraph (A)(vi), determined by substituting “predecessor” for “acquiring person” each place it appears) shall be reduced by—
in the case of the taxable year in which such disposition is made, an amount equal to the product of—
the qualified research expenses paid or incurred by, or gross receipts of, the predecessor with respect to the acquired business during the measurement period (as so defined and so determined), and
the number of days in the period beginning on the date of acquisition (as determined for purposes of subparagraph (A)(iv)(II)) and ending on the last day of the taxable year of the predecessor in which the disposition is made,
in the case of any taxable year ending after the taxable year in which such disposition is made, the amount described in clause (i)(I).
divided by the number of days in the taxable year of the predecessor, and
If during any of the 3 taxable years following the taxable year in which a disposition to which subparagraph (B) applies occurs, the disposing taxpayer (or a person with whom the taxpayer is required to aggregate expenditures under paragraph (1)) reimburses the acquiring person (or a person required to so aggregate expenditures with such person) for research on behalf of the taxpayer, then the amount of qualified research expenses of the taxpayer for the taxable years taken into account in computing the fixed-base percentage shall be increased by the lesser of—
the amount of the decrease under subparagraph (B) which is allocable to taxable years so taken into account, or
the product of the number of taxable years so taken into account, multiplied by the amount of the reimbursement described in this subparagraph.
In the case of any short taxable year, qualified research expenses and gross receipts shall be annualized in such circumstances and under such methods as the Secretary may prescribe by regulation.
The term “controlled group of corporations” has the same meaning given to such term by section 1563(a), except that—
“more than 50 percent” shall be substituted for “at least 80 percent” each place it appears in section 1563(a)(1), and
the determination shall be made without regard to subsections (a)(4) and (e)(3)(C) of section 1563.
The term “energy research consortium” means any organization—
which is—
described in section 501(c)(3) and is exempt from tax under section 501(a) and is organized and operated primarily to conduct energy research, or
organized and operated primarily to conduct energy research in the public interest (within the meaning of section 501(c)(3)),
which is not a private foundation,
to which at least 5 unrelated persons paid or incurred during the calendar year in which the taxable year of the organization begins amounts (including as contributions) to such organization for energy research, and
to which no single person paid or incurred (including as contributions) during such calendar year an amount equal to more than 50 percent of the total amounts received by such organization during such calendar year for energy research.
All persons treated as a single employer under subsection (a) or (b) of section 52 shall be treated as related persons for purposes of subparagraph (A)(iii) and as a single person for purposes of subparagraph (A)(iv).
For purposes of subsection (a)(3), amounts paid or incurred for any energy research conducted outside the United States, the Commonwealth of Puerto Rico, or any possession of the United States shall not be taken into account.
Any amount taken into account under subsection (a)(3) shall not be taken into account under paragraph (1) or (2) of subsection (a).
The term “energy research” does not include any research which is not qualified research.
In the case of an individual who—
owns an interest in an unincorporated trade or business,
is a partner in a partnership,
is a beneficiary of an estate or trust, or
is a shareholder in an S corporation,
the amount determined under subsection (a) for any taxable year shall not exceed an amount (separately computed with respect to such person’s interest in such trade or business or entity) equal to the amount of tax attributable to that portion of a person’s taxable income which is allocable or apportionable to the person’s interest in such trade or business or entity. If the amount determined under subsection (a) for any taxable year exceeds the limitation of the preceding sentence, such amount may be carried to other taxable years under the rules of section 39; except that the limitation of the preceding sentence shall be taken into account in lieu of the limitation of section 38(c) in applying section 39.
At the election of a qualified small business for any taxable year, section 3111(f) shall apply to the payroll tax credit portion of the credit otherwise determined under subsection (a) for the taxable year and such portion shall not be treated (other than for purposes of section 280C) as a credit determined under subsection (a).
For purposes of this subsection, the payroll tax credit portion of the credit determined under subsection (a) with respect to any qualified small business for any taxable year is the least of—
the amount specified in the election made under this subsection,
the credit determined under subsection (a) for the taxable year (determined before the application of this subsection), or
in the case of a qualified small business other than a partnership or S corporation, the amount of the business credit carryforward under section 39 carried from the taxable year (determined before the application of this subsection to the taxable year).
For purposes of this subsection—
The term “qualified small business” means, with respect to any taxable year—
a corporation or partnership, if—
the gross receipts (as determined under the rules of section 448(c)(3), without regard to subparagraph (A) thereof) of such entity for the taxable year is less than $5,000,000, and
such entity did not have gross receipts (as so determined) for any taxable year preceding the 5-taxable-year period ending with such taxable year, and
any person (other than a corporation or partnership) who meets the requirements of subclauses (I) and (II) of clause (i), determined—
by substituting “person” for “entity” each place it appears, and
by only taking into account the aggregate gross receipts received by such person in carrying on all trades or businesses of such person.
Such term shall not include an organization which is exempt from taxation under section 501.
Any election under this subsection for any taxable year—
shall specify the amount of the credit to which such election applies,
shall be made on or before the due date (including extensions) of—
in the case of a qualified small business which is a partnership, the return required to be filed under section 6031,
in the case of a qualified small business which is an S corporation, the return required to be filed under section 6037, and
in the case of any other qualified small business, the return of tax for the taxable year, and
may be revoked only with the consent of the Secretary.
The amount specified in any election made under this subsection shall not exceed $250,000.
In the case of taxable years beginning after December 31, 2022, the amount in subclause (I) shall be increased by $250,000.
A person may not make an election under this subsection if such person (or any other person treated as a single taxpayer with such person under paragraph (5)(A)) has made an election under this subsection for 5 or more preceding taxable years.
In the case of a qualified small business which is a partnership or S corporation, the election made under this subsection shall be made at the entity level.
Except as provided in subparagraph (B), all persons or entities treated as a single taxpayer under subsection (f)(1) shall be treated as a single taxpayer for purposes of this subsection.
For purposes of this subsection and section 3111(f)—
each of the persons treated as a single taxpayer under subparagraph (A) may separately make the election under paragraph (1) for any taxable year, and
each of the $250,000 amounts under paragraph (4)(B)(i) shall be allocated among all persons treated as a single taxpayer under subparagraph (A) in the same manner as under subparagraph (A)(ii) or (B)(ii) of subsection (f)(1), whichever is applicable.
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this subsection, including—
regulations to prevent the avoidance of the purposes of the limitations and aggregation rules under this subsection through the use of successor companies or other means,
regulations to minimize compliance and record-keeping burdens under this subsection, and
regulations for recapturing the benefit of credits determined under section 3111(f) in cases where there is a subsequent adjustment to the payroll tax credit portion of the credit determined under subsection (a), including requiring amended income tax returns in the cases where there is such an adjustment.
Treasury Regulations
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Treas. Reg. §1.41-0Table of contents
This section lists the table of contents for §§ 1.41-1 through 1.41-9.
(a) Amount of credit.
(b) Introduction to regulations under section 41.
(a) Trade or business requirement.
(1) In general.
(2) New business.
(3) Research performed for others.
(i) Taxpayer not entitled to results.
(ii) Taxpayer entitled to results.
(4) Partnerships.
(i) In general.
(ii) Special rule for certain partnerships and joint ventures.
(b) Supplies and personal property used in the conduct of qualified research.
(1) In general.
(2) Certain utility charges.
(i) In general.
(ii) Extraordinary expenditures.
(3) Right to use personal property.
(4) Use of personal property in taxable years beginning after December 31, 1985.
(c) Qualified services.
(1) Engaging in qualified research.
(2) Direct supervision.
(3) Direct support.
(d) Wages paid for qualified services.
(1) In general.
(2) “Substantially all.”
(e) Contract research expenses.
(1) In general.
(2) Performance of qualified research.
(3) “On behalf of.”
(4) Prepaid amounts.
(5) Examples.
(a) New taxpayers.
(b) Special rules for short taxable years.
(1) Short credit year.
(2) Short taxable year preceding credit year.
(3) Short taxable year in determining fixed-base percentage.
(c) Definition of gross receipts.
(1) In general.
(2) Amounts excluded.
(3) Foreign corporations.
(d) Consistency requirement.
(1) In general.
(2) Illustrations.
(e) Effective date.
(a) Qualified research.
(1) General rule.
(2) Requirements of section 41(d)(1).
(3) Undertaken for the purpose of discovering information.
(i) In general.
(ii) Application of the discovering information requirement.
(iii) Patent safe harbor.
(4) Technological in nature.
(5) Process of experimentation.
(i) In general.
(ii) Qualified purpose.
(6) Substantially all requirement.
(7) Use of computers and information technology.
(8) Illustrations.
(b) Application of requirements for qualified research.
(1) In general.
(2) Shrinking-back rule.
(3) Illustration.
(c) Excluded activities.
(1) In general.
(2) Research after commercial production.
(i) In general.
(ii) Certain additional activities related to the business component.
(iii) Activities related to production process or technique.
(iv) Clinical testing.
(3) Adaptation of existing business components.
(4) Duplication of existing business component.
(5) Surveys, studies, research relating to management functions, etc.
(6) Internal use software.
(i) General rule.
(ii) Inapplicability of the high threshold of innovation test.
(iii) Software developed primarily for internal use.
(iv) Software not developed primarily for internal use.
(v) Time and manner of determination.
(vi) Software developed for both internal use and to enable interaction with third parties (dual function software).
(vii) High threshold of innovation test.
(viii) Illustrations.
(7) Activities outside the United States, Puerto Rico, and other possessions.
(i) In general.
(ii) Apportionment of in-house research expenses.
(iii) Apportionment of contract research expenses.
(8) Research in the social sciences, etc.
(9) Research funded by any grant, contract, or otherwise.
(10) Illustrations.
(d) Recordkeeping for the research credit.
(e) Effective dates.
(a) Controlled groups of corporations; trades or businesses under common control.
(1) In general.
(2) Consolidated groups.
(3) Definitions.
(b) Computation of the group credit.
(1) In general.
(2) Start-up companies.
(c) Allocation of the group credit.
(d) Special rules for consolidated groups.
(1) In general.
(2) Start-up company status.
(3) Special rule for allocation of group credit among consolidated group members.
(e) Examples.
(f) For taxable years beginning before January 1, 1990.
(g) Tax accounting periods used.
(1) In general.
(2) Special rule when timing of research is manipulated.
(h) Membership during taxable year in more than one group.
(i) Intra-group transactions.
(1) In general.
(2) In-house research expenses.
(3) Contract research expenses.
(4) Lease payments.
(5) Payment for supplies.
(j) Effective/applicability dates.
(1) In general.
(2) Consolidated group rule.
(3) Taxable years ending after June 9, 2011.
(4) Taxable years beginning after December 31, 2011.
(5) Taxable years ending before January 1, 2012.
(a) Allocations.
(1) Corporation making an election under subchapter S.
(i) Pass-through, for taxable years beginning after December 31, 1982, in the case of an S corporation.
(ii) Pass-through, for taxable years beginning before January 1, 1983, in the case of a subchapter S corporation.
(2) Pass-through in the case of an estate or trust.
(3) Pass-through in the case of a partnership.
(i) In general.
(ii) Certain expenditures by joint ventures.
(4) Year in which taken into account.
(5) Credit allowed subject to limitation.
(b) Adjustments for certain acquisitions and dispositions—Meaning of terms.
(c) Special rule for pass-through of credit.
(d) Carryback and carryover of unused credits.
(a) Determination of credit.
(b) Election.
(1) In general.
(2) Time and manner of election.
(3) Revocation.
(4) Special rules for controlled groups.
(i) In general.
(ii) Designated member.
(5) Effective/applicability dates.
(a) Determination of credit.
(b) Election.
(1) In general.
(2) Time and manner of election.
(3) Revocation.
(4) Special rules for controlled groups.
(i) In general.
(ii) Designated member.
(c) Special rules.
(1) Qualified research expenditures (QREs) required in all years.
(2) Section 41(c)(6) applicability.
(3) Short taxable years.
(i) General rule.
(ii) Limited exception.
(4) Controlled groups.
(d) Effective/applicability dates.
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Treas. Reg. §1.41-0(a)Determination of credit.
Determination of credit.
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Treas. Reg. §1.41-0(b)Election.
Election.
(1) In general.
(2) Time and manner of election.
(3) Revocation.
(4) Special rules for controlled groups.
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Treas. Reg. §1.41-0(c)Special rules.
Special rules.
(1) Qualified research expenditures (QREs) required in all years.
(2) Section 41(c)(6) applicability.
(3) Short taxable years.
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Treas. Reg. §1.41-0(d)Effective/applicability dates.
Effective/applicability dates.
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Treas. Reg. §1.41-0(e)Examples.
Examples.
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Treas. Reg. §1.41-0(f)For taxable years beginning before January 1, 1990.
For taxable years beginning before January 1, 1990.
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Treas. Reg. §1.41-0(g)Tax accounting periods used.
Tax accounting periods used.
(1) In general.
(2) Special rule when timing of research is manipulated.
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Treas. Reg. §1.41-0(h)Membership during taxable year in more than one group.
Membership during taxable year in more than one group.
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Treas. Reg. §1.41-0(i)General rule.
General rule.
(ii) Limited exception.
(4) Controlled groups.
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Treas. Reg. §1.41-0(j)Effective/applicability dates.
Effective/applicability dates.
(1) In general.
(2) Consolidated group rule.
(3) Taxable years ending after June 9, 2011.
(4) Taxable years beginning after December 31, 2011.
(5) Taxable years ending before January 1, 2012.
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Treas. Reg. §1.41-0(v)Time and manner of determination.
Time and manner of determination.
(vi) Software developed for both internal use and to enable interaction with third parties (dual function software).
(vii) High threshold of innovation test.
(viii) Illustrations.
(7) Activities outside the United States, Puerto Rico, and other possessions.
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Treas. Reg. §1.41-0ATable of contents
This section lists the paragraphs contained in §§ 1.41-0A, 1.41-3A, 1.41-4A and 1.41-5A.
(a) Number of years in base period.
(b) New taxpayers.
(c) Definition of base period research expenses.
(d) Special rules for short taxable years.
(1) Short determination year.
(2) Short base period year.
(3) Years overlapping the effective dates of section 41 (section 44F).
(i) Determination years.
(ii) Base period years.
(4) Number of months in a short taxable year.
(e) Examples.
(a) General rule.
(b) Activities outside the United States.
(1) In-house research.
(2) Contract research.
(c) Social sciences or humanities.
(d) Research funded by any grant, contract, or otherwise.
(1) In general.
(2) Research in which taxpayer retains no rights.
(3) Research in which the taxpayer retains substantial rights.
(i) In general.
(ii) Pro rata allocation.
(iii) Project-by-project determination.
(4) Independent research and development under the Federal Acquisition Regulations System and similar provisions.
(5) Funding determinable only in subsequent taxable year.
(6) Examples.
(a) In general.
(b) Trade or business requirement.
(c) Prepaid amounts.
(1) In general.
(2) Transfers of property.
(d) Written research agreement.
(1) In general.
(2) Agreement between a corporation and a qualified organization after June 30, 1983.
(i) In general.
(ii) Transfers of property.
(3) Agreement between a qualified fund and a qualified educational organization after June 30, 1983.
(e) Exclusions.
(1) Research conducted outside the United States.
(2) Research in the social sciences or humanities.
(f) Procedure for making an election to be treated as a qualified fund.
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Treas. Reg. §1.41-0A(a)In general.
In general.
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Treas. Reg. §1.41-0A(b)Trade or business requirement.
Trade or business requirement.
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Treas. Reg. §1.41-0A(c)Prepaid amounts.
Prepaid amounts.
(1) In general.
(2) Transfers of property.
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Treas. Reg. §1.41-0A(d)Written research agreement.
Written research agreement.
(1) In general.
(2) Agreement between a corporation and a qualified organization after June 30, 1983.
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Treas. Reg. §1.41-0A(e)Exclusions.
Exclusions.
(1) Research conducted outside the United States.
(2) Research in the social sciences or humanities.
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Treas. Reg. §1.41-0A(f)Procedure for making an election to be treated as a qualified fund.
Procedure for making an election to be treated as a qualified fund.
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Treas. Reg. §1.41-0A(i)In general.
In general.
(ii) Transfers of property.
(3) Agreement between a qualified fund and a qualified educational organization after June 30, 1983.
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Treas. Reg. §1.41-1Credit for increasing research activities
(a) Amount of credit. The amount of a taxpayer's credit is determined under section 41(a). For taxable years beginning after June 30, 1996, and at the election of the taxpayer, the portion of the credit determined under section 41(a)(1) may be calculated using the alternative incremental credit set forth in section 41(c)(4). For taxable years ending after December 31, 2006, and at the election of the taxpayer, the portion of the credit determined under section 41(a)(1) may be calculated using either the alternative incremental credit set forth in section 41(c)(4), or the alternative simplified credit set forth in section 41(c)(5).
(b) Introduction to regulations under section 41. (1) Sections 1.41-2 through 1.41-8 and 1.41-3A through 1.41-5A address only certain provisions of section 41. The following table identifies the provisions of section 41 that are addressed, and lists each provision with the section of the regulations in which it is covered.
(2) Section 1.41-3A also addresses the special rule in section 221(d)(2) of the Economic Recovery Tax Act of 1981 relating to taxable years overlapping the effective dates of section 41. Section 41 was formerly designated as sections 30 and 44F. Sections 1.41-0 through 1.41-8 and 1.41-0A through 1.41-5A refer to these sections as section 41 for conformity purposes. Whether section 41, former section 30, or former section 44F applies to a particular expenditure depends upon when the expenditure was paid or incurred.
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Treas. Reg. §1.41-1(a)Amount of credit.
Amount of credit. The amount of a taxpayer's credit is determined under section 41(a). For taxable years beginning after June 30, 1996, and at the election of the taxpayer, the portion of the credit determined under section 41(a)(1) may be calculated using the alternative incremental credit set forth in section 41(c)(4). For taxable years ending after December 31, 2006, and at the election of the taxpayer, the portion of the credit determined under section 41(a)(1) may be calculated using either the alternative incremental credit set forth in section 41(c)(4), or the alternative simplified credit set forth in section 41(c)(5).
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Treas. Reg. §1.41-1(b)Introduction to regulations under section 41.
Introduction to regulations under section 41. (1) Sections 1.41-2 through 1.41-8 and 1.41-3A through 1.41-5A address only certain provisions of section 41. The following table identifies the provisions of section 41 that are addressed, and lists each provision with the section of the regulations in which it is covered.
(2) Section 1.41-3A also addresses the special rule in section 221(d)(2) of the Economic Recovery Tax Act of 1981 relating to taxable years overlapping the effective dates of section 41. Section 41 was formerly designated as sections 30 and 44F. Sections 1.41-0 through 1.41-8 and 1.41-0A through 1.41-5A refer to these sections as section 41 for conformity purposes. Whether section 41, former section 30, or former section 44F applies to a particular expenditure depends upon when the expenditure was paid or incurred.
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Treas. Reg. §1.41-2Qualified research expenses
(a) Trade or business requirement—(1) In general. 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. The phrase “in carrying on a trade or business” has the same meaning for purposes of section 41(b)(1) as it has for purposes of section 162; thus, expenses paid or incurred in connection with a trade or business within the meaning of section 174(a) (relating to the deduction for research and experimental expenses) are not necessarily paid or incurred in carrying on a trade or business for purposes of section 41. A research expense must relate to a particular trade or business being carried on by the taxpayer at the time the expense is paid or incurred in order to be a qualified research expense. For purposes of section 41, a contract research expense of the taxpayer is not a qualified research expense if the product or result of the research is intended to be transferred to another in return for license or royalty payments and the taxpayer does not use the product of the research in the taxpayer's trade or business.
(2) New business. Expenses paid or incurred prior to commencing a new business (as distinguished from expanding an existing business) may be paid or incurred in connection with a trade or business but are not paid or incurred in carrying on a trade or business. Thus, research expenses paid or incurred by a taxpayer in developing a product the sale of which would constitute a new trade or business for the taxpayer are not paid or incurred in carrying on a trade or business.
(3) Research performed for others—(i) Taxpayer not entitled to results. If the taxpayer performs research on behalf of another person and retains no substantial rights in the research, that research shall not be taken into account by the taxpayer for purposes of section 41. See § 1.41-4A(d)(2).
(ii) Taxpayer entitled to results. If the taxpayer in carrying on a trade or business performs research on behalf of other persons but retains substantial rights in the research, the taxpayer shall take otherwise qualified expenses for that research into account for purposes of section 41 to the extent provided in § 1.41-4A(d)(3).
(4) Partnerships—(i) In general. An in-house research expense or a contract research expense paid or incurred by a partnership is a qualified research expense of the partnership if the expense is paid or incurred by the partnership in carrying on a trade or business of the partnership, determined at the partnership level without regard to the trade or business of any partner.
(ii) Special rule for certain partnerships and joint ventures. (A) If a partnership or a joint venture (taxable as a partnership) is not carrying on the trade or business to which the research relates, then the general rule in paragraph (a)(4)(i) of this section would not allow any of such expenditures to qualify as qualified research expenses.
(B) Notwithstanding paragraph (a)(4)(ii)(A) of this section, if all the partners or venturers are entitled to make independent use of the results of the research, this paragraph (a)(4)(ii) may allow a portion of such expenditures to be treated as qualified research expenditures by certain partners or venturers.
(C) First, in order to determine the amount of credit that may be claimed by certain partners or venturers, the amount of qualified research expenditures of the partnership or joint venture is determined (assuming for this purpose that the partnership or joint venture is carrying on the trade or business to which the research relates).
(D) Second, this amount is reduced by the proportionate share of such expenses allocable to those partners or venturers who would not be able to claim such expenses as qualified research expenditures if they had paid or incurred such expenses directly. For this purpose such partners' or venturers' proportionate share of such expenses shall be determined on the basis of such partners' or venturers' share of partnership items of income or gain (excluding gain allocated under section 704(c)) which results in the largest proportionate share. Where a partner's or venturer's share of partnership items of income or gain (excluding gain allocated under section 704(c)) may vary during the period such partner or venturer is a partner or venturer in such partnership or joint venture, such share shall be the highest share such partner or venturer may receive.
(E) Third, the remaining amount of qualified research expenses is allocated among those partners or venturers who would have been entitled to claim a credit for such expenses if they had paid or incurred the research expenses in their own trade or business, in the relative proportions that such partners or venturers share deductions for expenses under section 174 for the taxable year that such expenses are paid or incurred.
(F) For purposes of section 41, research expenditures to which this paragraph (a)(4)(ii) applies shall be treated as paid or incurred directly by such partners or venturers. See § 1.41-7(a)(3)(ii) for special rules regarding these expenses.
(iii) The following examples illustrate the application of the principles contained in paragraph (a)(4)(ii) of this section.
(b) Supplies and personal property used in the conduct of qualified research—(1) In general. Supplies and personal property (except to the extent provided in paragraph (b)(4) of this section) are used in the conduct of qualified research if they are used in the performance of qualified services (as defined in section 41(b)(2)(B), but without regard to the last sentence thereof) by an employee of the taxpayer (or by a person acting in a capacity similar to that of an employee of the taxpayer; see example (6) of § 1.41-2(e)(5)). Expenditures for supplies or for the use of personal property that are indirect research expenditures or general and administrative expenses do not qualify as inhouse research expenses.
(2) Certain utility charges—(i) In general. In general, amounts paid or incurred for utilities such as water, electricity, and natural gas used in the building in which qualified research is performed are treated as expenditures for general and administrative expenses.
(ii) Extraordinary expenditures. To the extent the taxpayer can establish that the special character of the qualified research required additional extraordinary expenditures for utilities, the additional expenditures shall be treated as amounts paid or incurred for supplies used in the conduct of qualified research. For example, amounts paid for electricity used for general laboratory lighting are treated as general and administrative expenses, but amounts paid for electricity used in operating high energy equipment for qualified research (such as laser or nuclear research) may be treated as expenditures for supplies used in the conduct of qualified research to the extent the taxpayer can establish that the special character of the research required an extraordinary additional expenditure for electricity.
(3) Right to use personal property. The determination of whether an amount is paid to or incurred for another person for the right to use personal property in the conduct of qualified research shall be made without regard to the characterization of the transaction as a lease under section 168(f)(8) (as that section read before it was repealed by the Tax Reform Act of 1986). See § 5c.168(f)(8)-1(b).
(4) Use of personal property in taxable years beginning after December 31, 1985. For taxable years beginning after December 31, 1985, amounts paid or incurred for the use of personal property are not qualified research expenses, except for any amount paid or incurred to another person for the right to use (time-sharing) computers in the conduct of qualified research. The computer must be owned and operated by someone other than the taxpayer, located off the taxpayer's premises, and the taxpayer must not be the primary user of the computer.
(c) Qualified services—(1) Engaging in qualified research. The term “engaging in qualified research” as used in section 41(b)(2)(B) means the actual conduct of qualified research (as in the case of a scientist conducting laboratory experiments).
(2) Direct supervision. The term “direct supervision” as used in 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.
(3) Direct support. The term “direct support” as used in section 41(b)(2)(B) means services in the direct support of either—
(i) Persons engaging in actual conduct of qualified research, or
(ii) Persons who are directly supervising persons engaging in the actual conduct of qualified research. For example, direct support of research includes the services of a secretary for typing reports describing laboratory results derived from qualified research, of a laboratory worker for cleaning equipment used in qualified research, of a clerk for compiling research data, and of a machinist for machining a part of an experimental model used in qualified research. Direct support of research activities does not include general administrative services, or other services only indirectly of benefit to research activities. For example, services of payroll personnel in preparing salary checks of laboratory scientists, of an accountant for accounting for research expenses, of a janitor for general cleaning of a research laboratory, or of officers engaged in supervising financial or personnel matters do not qualify as direct support of research. This is true whether general administrative personnel are part of the research department or in a separate department. Direct support does not include supervision. Supervisory services constitute “qualified services” only to the extent provided in paragraph (c)(2) of this section.
(d) Wages paid for qualified services—(1) In general. Wages paid to or incurred for an employee constitute in-house research expenses only to the extent the wages were paid or incurred for qualified services performed by the employee. If an employee has performed both qualified services and nonqualified services, only the amount of wages allocated to the performance of qualified services constitutes an in-house research expense. In the absence of another method of allocation that the taxpayer can demonstrate to be more appropriate, the amount of in-house research expense shall be determined by multiplying the total amount of wages paid to or incurred for the employee during the taxable year by the ratio of the total time actually spent by the employee in the performance of qualified services for the taxpayer to the total time spent by the employee in the performance of all services for the taxpayer during the taxable year.
(2) “Substantially all.” Notwithstanding paragraph (d)(1) of this section, if substantially all of the services performed by an employee for the taxpayer during the taxable year consist of services meeting the requirements of section 41(b)(2)(B) (i) or (ii), then the term “qualified services” means all of the services performed by the employee for the taxpayer during the taxable year. Services meeting the requirements of section 41(b)(2)(B) (i) or (ii) constitute substantially all of the services performed by the employee during a taxable year only if the wages allocated (on the basis used for purposes of paragraph (d)(1) of this section) to services meeting the requirements of section 41(b)(2)(B) (i) or (ii) constitute at least 80 percent of the wages paid to or incurred by the taxpayer for the employee during the taxable year.
(e) Contract research expenses—(1) In general. A contract research expense is 65 percent of any expense paid or incurred in carrying on a trade or business to any person other than an employee of the taxpayer for the performance on behalf of the taxpayer of—
(i) Qualified research as defined in § 1.41-4 or 1.41-4A, whichever is applicable, or
(ii) Services which, if performed by employees of the taxpayer, would constitute qualified services within the meaning of section 41(b)(2)(B).
Where the contract calls for services other than services described in this paragraph (e)(1), only 65 percent of the portion of the amount paid or incurred that is attributable to the services described in this paragraph (e)(1) is a contract research expense.
(2) Performance of qualified research. An expense is paid or incurred for the performance of qualified research only to the extent that it is paid or incurred pursuant to an agreement that—
(i) Is entered into prior to the performance of the qualified research,
(ii) Provides that research be performed on behalf of the taxpayer, and
(iii) Requires the taxpayer to bear the expense even if the research is not successful.
If an expense is paid or incurred pursuant to an agreement under which payment is contingent on the success of the research, then the expense is considered paid for the product or result rather than the performance of the research, and the payment is not a contract research expense. The previous sentence applies only to that portion of a payment which is contingent on the success of the research.
(3) “On behalf of.” Qualified research is performed on behalf of the taxpayer if the taxpayer has a right to the research results. Qualified research can be performed on behalf of the taxpayer notwithstanding the fact that the taxpayer does not have exclusive rights to the results.
(4) Prepaid amounts. Notwithstanding paragraph (e)(1) of this section, if any contract research expense paid or incurred during any taxable year is attributable to qualified research to be conducted after the close of such taxable year, the expense so attributable shall be treated for purposes of section 41(b)(1)(B) as paid or incurred during the period during which the qualified research is conducted.
(5) Examples. The following examples illustrate provisions contained in paragraphs (e) (1) through (4) of this section.
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Treas. Reg. §1.41-2(a)Trade or business requirement—(1) In general.
Trade or business requirement—(1) In general. 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. The phrase “in carrying on a trade or business” has the same meaning for purposes of section 41(b)(1) as it has for purposes of section 162; thus, expenses paid or incurred in connection with a trade or business within the meaning of section 174(a) (relating to the deduction for research and experimental expenses) are not necessarily paid or incurred in carrying on a trade or business for purposes of section 41. A research expense must relate to a particular trade or business being carried on by the taxpayer at the time the expense is paid or incurred in order to be a qualified research expense. For purposes of section 41, a contract research expense of the taxpayer is not a qualified research expense if the product or result of the research is intended to be transferred to another in return for license or royalty payments and the taxpayer does not use the product of the research in the taxpayer's trade or business.
(2) New business. Expenses paid or incurred prior to commencing a new business (as distinguished from expanding an existing business) may be paid or incurred in connection with a trade or business but are not paid or incurred in carrying on a trade or business. Thus, research expenses paid or incurred by a taxpayer in developing a product the sale of which would constitute a new trade or business for the taxpayer are not paid or incurred in carrying on a trade or business.
(3) Research performed for others—(i) Taxpayer not entitled to results. If the taxpayer performs research on behalf of another person and retains no substantial rights in the research, that research shall not be taken into account by the taxpayer for purposes of section 41. See § 1.41-4A(d)(2).
(ii) Taxpayer entitled to results. If the taxpayer in carrying on a trade or business performs research on behalf of other persons but retains substantial rights in the research, the taxpayer shall take otherwise qualified expenses for that research into account for purposes of section 41 to the extent provided in § 1.41-4A(d)(3).
(4) Partnerships—(i) In general. An in-house research expense or a contract research expense paid or incurred by a partnership is a qualified research expense of the partnership if the expense is paid or incurred by the partnership in carrying on a trade or business of the partnership, determined at the partnership level without regard to the trade or business of any partner.
(ii) Special rule for certain partnerships and joint ventures. (A) If a partnership or a joint venture (taxable as a partnership) is not carrying on the trade or business to which the research relates, then the general rule in paragraph (a)(4)(i) of this section would not allow any of such expenditures to qualify as qualified research expenses.
(B) Notwithstanding paragraph (a)(4)(ii)(A) of this section, if all the partners or venturers are entitled to make independent use of the results of the research, this paragraph (a)(4)(ii) may allow a portion of such expenditures to be treated as qualified research expenditures by certain partners or venturers.
(C) First, in order to determine the amount of credit that may be claimed by certain partners or venturers, the amount of qualified research expenditures of the partnership or joint venture is determined (assuming for this purpose that the partnership or joint venture is carrying on the trade or business to which the research relates).
(D) Second, this amount is reduced by the proportionate share of such expenses allocable to those partners or venturers who would not be able to claim such expenses as qualified research expenditures if they had paid or incurred such expenses directly. For this purpose such partners' or venturers' proportionate share of such expenses shall be determined on the basis of such partners' or venturers' share of partnership items of income or gain (excluding gain allocated under section 704(c)) which results in the largest proportionate share. Where a partner's or venturer's share of partnership items of income or gain (excluding gain allocated under section 704(c)) may vary during the period such partner or venturer is a partner or venturer in such partnership or joint venture, such share shall be the highest share such partner or venturer may receive.
(E) Third, the remaining amount of qualified research expenses is allocated among those partners or venturers who would have been entitled to claim a credit for such expenses if they had paid or incurred the research expenses in their own trade or business, in the relative proportions that such partners or venturers share deductions for expenses under section 174 for the taxable year that such expenses are paid or incurred.
(F) For purposes of section 41, research expenditures to which this paragraph (a)(4)(ii) applies shall be treated as paid or incurred directly by such partners or venturers. See § 1.41-7(a)(3)(ii) for special rules regarding these expenses.
(iii) The following examples illustrate the application of the principles contained in paragraph (a)(4)(ii) of this section.
197 Citing Cases
Section 41 provides several alternative approaches to calculate the research credit.
§§ 41.12 tbl.1 (“J1 . . . Exchange Visitor”), 62.1(a), 62.2 (defining “J visa”) (2023). 7 On the basis of the stipulation, this Court previously found that Dr. Baturin was a nonresident alien (see Baturin I, 153 T.C. at 236 & n.4); and the Fourth Circuit so assumed (see Baturin II, 31 F.4th at 172). The Commissioner’s motion argues the generality th
§ 41-10-30(A) (1990) (“Notification to employees of wages and hours agreed upon; recordkeeping requirements; requirement of itemized statement of gross pay and deductions for each pay period”).7 Dr. Kramarenko signed the Assignment Information Sheet as See 22 C.F.R. §§ 41.12 tbl.1 (“J1 . . . Exchange Visitor”), 62.1(a), 62.2 (defining “J visa”) (20
MEMORANDUM OPINION PUGH, Judge: This case concerns petitioners’ entitlement to Credits for Increasing Research Activities (research credits) under section 41.1 The Internal Revenue Service (respondent) disallowed claimed research credits that flowed through Kapur & Associates, Inc.
The Process of Experimentation Test Finally, section 41 requires that (1) substantially all the research activities (2) constitute elements of a process of experimentation (3) for a qualified purpose.
After concessions, the issue for decision is whether (and if so to what extent) Nevco is entitled to a research credit under section 41 for compensation paid to Mr.
Rule 146 provides, in part: “The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or otherwise admissible. The Court’s determination shall be treated as a ruling on a question of law.” Our determinations regarding Brazilian law are based on the
We hold for respondent on both issues.
Petitioners, Jeffrey Harper and Katherine Harper, claimed section 41 credits of $46,656 and $778,610 for tax years 2012 and 2013 (years in issue), respectively, in connection with the activities of their S corporation, Harper Construction Co.
Application to United Therapeutics Every year from 2011 through 2014, United Therapeutics, like the taxpayer in our example, incurred expenses that qualified as both qualified clinical testing expenses under section 45C(b) and qualified research expenses under section 41(b). And each year from 2011 to 2014, United Therapeutics elected to claim the orphan drug credit for all these expenses. In 2014, United Therapeutics excluded all qualified clinical testing expenses from its section 41 credit co
Since at least the late 1950s there has been a regulation which provides that consistent compliance with GAAP in accordance with accepted conditions or practices in a trade or business “will ordinarily be regarded as clearly reflecting income.” Treas.
§ 41 (2018).7 In the Fourth Circuit, a taxpayer does not begin carrying on a trade or business “until such time as the business has begun to function as a going concern and 6 Sections 195(c)(2)(A) and 7701(a)(11)(B) direct us to determine when an active trade or business begins on the basis of regulations prescribed by the Secretary of the Treasury
ed those issues in TBL Licensing LLC & Subs. v. Commissioner, No. 21146-15, 158 T.C. (Jan. 31, 2022). In March 2022, more than 6½ years after filing its Petition, P moved for leave to amend its Petition to assert a claim for a research credit under I.R.C. § 41. R opposes P’s Motion. Held: Whether justice requires granting a motion for leave to amend a pleading under Rule 41(a) depends on the facts and circumstances of the particular case; no one factor (such as the presence or absence of prejudi
Served 01/11/21 - 2 - [*2] MEMORANDUM OPINION LAUBER, Judge: The principal question in these consolidated cases con- cerns petitioners’ entitlement to credits under section 41 for increasing research activities.2 The Internal Revenue Service (IRS or respondent) disallowed research credits of $929,668 claimed during 2008-2010 by Enercon Engineering, Inc.
Served 01/11/21 - 2 - [*2] MEMORANDUM OPINION LAUBER, Judge: The principal question in these consolidated cases con- cerns petitioners’ entitlement to credits under section 41 for increasing research activities.2 The Internal Revenue Service (IRS or respondent) disallowed research credits of $929,668 claimed during 2008-2010 by Enercon Engineering, Inc.
Served 01/11/21 - 2 - [*2] MEMORANDUM OPINION LAUBER, Judge: The principal question in these consolidated cases con- cerns petitioners’ entitlement to credits under section 41 for increasing research activities.2 The Internal Revenue Service (IRS or respondent) disallowed research credits of $929,668 claimed during 2008-2010 by Enercon Engineering, Inc.
Served 01/11/21 - 2 - [*2] MEMORANDUM OPINION LAUBER, Judge: The principal question in these consolidated cases con- cerns petitioners’ entitlement to credits under section 41 for increasing research activities.2 The Internal Revenue Service (IRS or respondent) disallowed research credits of $929,668 claimed during 2008-2010 by Enercon Engineering, Inc.
2d 688, can be read to support petitioner's position, we decline to follow that court's analysis.
Served 01/11/21 - 2 - [*2] MEMORANDUM OPINION LAUBER, Judge: The principal question in these consolidated cases con- cerns petitioners’ entitlement to credits under section 41 for increasing research activities.2 The Internal Revenue Service (IRS or respondent) disallowed research credits of $929,668 claimed during 2008-2010 by Enercon Engineering, Inc.
Max argued that LMI’s multistep process of designing garments, fit testing, and fabric testing constituted research and experimentation under section 41 and that the wages, supply expenses, and contract expenses were qualified research expenditures.
593 (1964); Pinder v. United States, 330 F.2d 119, 124- 125 (5th Cir. 1964); Concord Consumers Hous. Coop. v. Commissioner, 89 T.C. 105, 124 n.21 (1987). Witness testimony could almost always be said to be "self- 3The largest earned income tax credit for an eligible individual with two qualifying children was $5,460 for 2014 and $5,548 fo
593 (1964); Pinder v. United States, 330 F.2d 119, 124- 125 (5th Cir. 1964); Concord Consumers Hous. Coop. v. Commissioner, 89 T.C. 105, 124 n.21 (1987). Witness testimony could almost always be said to be "self- 3The largest earned income tax credit for an eligible individual with two qualifying children was $5,460 for 2014 and $5,548 fo
During tax years ending May 31, 2011 and 2012, Siemer conducted activities for which it claimed SERVED Apr 15 2019 - 2 - [*2] credits for increasing research activities under section 41.¹ The primary question before the Court is whether Siemer has proven that the expenses from those activities are qualified research expenses under the Code.
Surely any taxpayerwould find it repugnant if 3¹Unlike the statutes establishing the Tax Court, statutes establishing independent agencies in the executive branch typically require that appointments to their policymaking (i.e., quasi-legislative) governing bodies be balanced between the two major political parties. See, e.g., statutes establishing the Federal Trade Commission, 15 U.S.C. sec. 41 (2012); the Equal Employment Opportunity Commission, 42 U.S.C.
sential terms. Heil v. Commissioner, T.C. Memo. 1994-417; 17A Am. Jur. 2d, Contracts, secs. 27 and 28 (1991); 1 Williston on Contracts, sec. 3:5 (4th ed.1990). Mutual assent generally requires an offer and an acceptance. 17A Am. Jur. 2d, Contracts, sec. 41 (1991). 'An offer is the manifestation ofwillingness to enter into a bargain, so made as tojustify another person in understanding that his assent to that bargain is invited and will conclude it.' 1 Restatement, Contracts 2d, sec. 24 (1981)."
460, 473. - 4 - [*4] the Court indicated that it was disposed to issue a protective order and urged the parties to work toward a compromise draft. In November 2013 the parties pro- posed, and the Court adopted, a protective order implementing procedures to pro- tect Amazon's trade secrets, proprietarytechnology, and non-public fi
892 (1940), involving the loss disallowance rule ofsection 267 applicable to related party transactions. In that case the Court ofAppeals affirmed a decision of the Board ofTax Appeals and explained: But where, as here, four unrelated lots ofstock were separately acquired and might readily have been separately sold, the fact that after a
On March 30, 2013, petitioner submitted amended returns for 2009 and 2010 on which he claimed section 41 "research and experimentation" tax credits of$3,986,580 and $4,443, 70, respectively.
G. SUDER, ET AL.,¹ Petitioners v. COMMISSIONEROF INTERNAL REVENUE, Respondent DocketNos. 14435-09, 14460-09, Filed October 1, 2014. 6183-10, 6210-10. E designs telephone systems for small and midsize businesses. E claimed research tax credits under I.R.C. sec. 41 for 2004-07 on Forms 1120S. In computingthe credits, E claimed qualified research expenses (QREs) for 76 projects. The parties stipulated 12 ofthese projects as being a representative sample for purposes ofdetermining whether E's emplo
53Q, 4Q 2005; 2Q, 3Q 2006; 1Q, 2Q, 3Q 2007; 3Q, 4Q 2008; 2Q, 4Q 2009; 1Q, 2Q 2010. -4- *4] In 2004, the company was incorporatedby Sarah Stevens ("Stevens"). From 2005 through 2010, the company was a federal contractor that provided computer consulting and information-technology services to federal agencies, including the National
G. SUDER, ET AL.,¹ Petitioners v. COMMISSIONEROF INTERNAL REVENUE, Respondent DocketNos. 14435-09, 14460-09, Filed October 1, 2014. 6183-10, 6210-10. E designs telephone systems for small and midsize businesses. E claimed research tax credits under I.R.C. sec. 41 for 2004-07 on Forms 1120S. In computingthe credits, E claimed qualified research expenses (QREs) for 76 projects. The parties stipulated 12 ofthese projects as being a representative sample for purposes ofdetermining whether E's emplo
The companies engaged the accounting firm ofErnst & Young ("E&Y") for advice on various tax issues, including the availability of research and development ("R&D") tax credits pursuant to section 41.
G. SUDER, ET AL.,¹ Petitioners v. COMMISSIONEROF INTERNAL REVENUE, Respondent DocketNos. 14435-09, 14460-09, Filed October 1, 2014. 6183-10, 6210-10. E designs telephone systems for small and midsize businesses. E claimed research tax credits under I.R.C. sec. 41 for 2004-07 on Forms 1120S. In computingthe credits, E claimed qualified research expenses (QREs) for 76 projects. The parties stipulated 12 ofthese projects as being a representative sample for purposes ofdetermining whether E's emplo
She was employed by the Mission in an administrative support role. Ms. Abrahamsen left the Mission in 1985 and began working for the New York branch ofKansallis-Osake-Pankki (Kansallis), a Finnish bank. She apparently held an E-1 visa while initially employed with Kansallis. An E-1 visa is known as a "treaty trader" visa and, lik
The companies engaged the accounting firm ofErnst & Young ("E&Y") for advice on various tax issues, including the availability of research and development ("R&D") tax credits pursuant to section 41.
G. SUDER, ET AL.,¹ Petitioners v. COMMISSIONEROF INTERNAL REVENUE, Respondent DocketNos. 14435-09, 14460-09, Filed October 1, 2014. 6183-10, 6210-10. E designs telephone systems for small and midsize businesses. E claimed research tax credits under I.R.C. sec. 41 for 2004-07 on Forms 1120S. In computingthe credits, E claimed qualified research expenses (QREs) for 76 projects. The parties stipulated 12 ofthese projects as being a representative sample for purposes ofdetermining whether E's emplo
as amended and in effect for the taxable years at issue, and all Rule references are to the Tax Court Rule ofPractice and Procedure. 2There remains a second issue for resolution, in a separate trial, whether ADVO is entitled to a credit pursuant to sec. 41 for increasing research activities in connection with the development ofinternal use software. - 3 - FINDINGS OF FACT The parties' stipulation offacts, with accompanying exhibits, and the stipulations ofsettled issues are incorporated herein
angley v. Commissioner, T.C. Memo. 2013-22 (hope and lifetime learning credits under section 25A); Ellis-Babino v. Commissioner, T.C. Memo. 2012-127 (general business credit under section 38, including the increasing research activities credit under section 41); A.J. Concrete Pumping, Inc. v. Commissioner, T.C. Memo. 2001-42 (general business credit under section 38, including the investment tax credit under section 46). - 23 - Section 6211(b)(4) provides: SEC. 6211(b). Rules for Application ofS
as amended and in effect for the taxable years at issue, and all Rule references are to the Tax Court Rule of Practice and Procedure. There remains a second issue for resolution, in a separate trial, whether ADVO is entitled to a credit pursuant to sec. 41 for increasing research activities in connection with the development of internal use software. Psychographics is the study of personality, values, attitudes, interests, and lifestyles. With respect to turnkey products, ADVO’s calculation of “
angley v. Commissioner, T.C. Memo. 2013-22 (hope and lifetime learning credits under section 25A); Ellis-Babino v. Commissioner, T.C. Memo. 2012-127 (general business credit under section 38, including the increasing research activities credit under section 41); A.J. Concrete Pumping, Inc. v. Commissioner, T.C. Memo. 2001-42 (general business credit under section 38, including the investment tax credit under section 46). Of the credits at issue here, only the earned income credit was included in
McCall) for 2003 and 2004 qualify as research expenses for purposes ofFS claiming the credit for increasing research activities under section 41 (research credit).T We hold that none ofthe wages qualify.
Section 45C(b)(2)(B) provides that the Orphan Drug Credit may be allowed for qualified clinical testing expenses related to a "rare disease or condition * * * designated under section 526 ofthe Federal Food, Drug, and Cosmetic Act." Section 41(c) explains that the Increasing Research Activities Credit may be allowed for research and
McCall) for 2003 and 2004 qualify as research expenses for purposes ofFS claiming the credit for increasing research activities under section 41 (research credit).T We hold that none ofthe wages qualify.
McCall) for 2003 and 2004 qualify as research expenses for purposes ofFS claiming the credit for increasing research activities under section 41 (research credit).T We hold that none ofthe wages qualify.
The parties cross-moved for partial summaryjudgment on whether P was required, as asserted by R, to include nonsales income, including dividends, interest, rent, and other income, in its "average annual gross receipts" for purposes ofcalculating its I.R.C. sec. 41 research credits for taxable years 1999 through 2001. Held: P was required to include such amounts in its "average annual gross receipts" in determining available research credits for the taxable years at issue. Accordingly, we will gr
McCall) for 2003 and 2004 qualify as research expenses for purposes ofFS claiming the credit for increasing research activities under section 41 (research credit).T We hold that none ofthe wages qualify.
McCall) for 2003 and 2004 qualify as research expenses for purposes ofFS claiming the credit for increasing research activities under section 41 (research credit).T We hold that none ofthe wages qualify.
--- MAJORITY --- OPINION Goeke, Judge: In two statutory notices of deficiency respondent disallowed in part credits for increasing research activities pursuant to section 41 claimed by petitioner, Hewlett-Packard Co.
cattery, then the failure to include [Ma.] Watkins in DKD's pension plan is a fatal flaw. A quÅlified pension plan cannot discriminate in favor of hichly compensated employees . I . R. C. § 401 (a) (4 ) . "H ghly compensated employee" is defined in I.R.C. § 41 (q) as a [sic] employee who was a 5 percent owner at saIn DKD' s 2003 return, D.KD claimed a deduction for the $10 , OOO contribution under the DKD Fidelity profit-sharing plan that it is claiming here. In: DKD's 2004 return, DKD did not
cattery, then the failure to include [Ma.] Watkins in DKD's pension plan is a fatal flaw. A quÅlified pension plan cannot discriminate in favor of hichly compensated employees . I . R. C. § 401 (a) (4 ) . "H ghly compensated employee" is defined in I.R.C. § 41 (q) as a [sic] employee who was a 5 percent owner at saIn DKD' s 2003 return, D.KD claimed a deduction for the $10 , OOO contribution under the DKD Fidelity profit-sharing plan that it is claiming here. In: DKD's 2004 return, DKD did not
.) - 15 section 174 expense to constitute "qualified research" under section 41 . See Norwest Corp . & Subs . v . Commissioner, 110 T .C . 454, 489-490 (1998) . Section 174 does not define the phrase "research and experimental expenditures", but, similar to the definition of "supplies" in section 41(b)(2)(C), section 174(c) provides that section 174 does not apply to expenditures for "the acquisition or improvement of property to be used in connection with the research or experimentation and of
We hold that petitioner is required to include in the calculation under section 41(c)(1)(B) of its average annual gross receipts for the 4 taxable years preceding the taxable year ended October 31, 2001, the total annual gross receipts of Deere's foreign branches for each of those 4 preceding taxable years
14 - In computing the claimed credits, petitioner, claimed $56,247,556 and $145,435,822 as additional QREs under section 41(b) for 1994 and 1995, respectively (claimed QREs) . The amount of claimed QREs for 1995-isfthe full-year amount although petitioner acknowledges that section 41 does not apply to any amount paid or incurred after June 30, 1995, and before January 1, 1996, and petitioner will disregard such.
Except with respect to the computation of the credit for increasing research activities under section 41, in calculating the consolidated tax shown in the 10/31/01 return, petitioner included all of the income and all of the expenses from Deere’s operations through Deere’s German branch, Deere’s Italian branch, and Deere’s Swiss branch.
However, with respect to the production molds sold to customers, petitioner included the costs paid to the third-party toolmakers as qualified research expenses for purposes of computing its section 41 research credit.
sential terms. Heil v. Commissioner, T.C. Memo. 1994-417; 17A Am. Jur. 2d, Contracts, secs. 27 and 28 (1991); 1 Williston on Contracts, sec. 3:5 (4th ed. 1990). Mutual assent generally requires an offer and an acceptance. 17A Am. Jur. 2d, Contracts, sec. 41 (1991). ‘An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.’ 1 Restatement, Contracts 2d, sec. 24 (1981)
sential terms. Heil v. Commissioner, T.C. Memo. 1994-417; 17A Am. Jur. 2d, Contracts, secs. 27 and 28 (1991); 1 Williston on Contracts, sec. 3:5 (4th ed. 1990). Mutual assent generally requires an offer and an acceptance. 17A Am. Jur. 2d, Contracts, sec. 41 (1991). 'An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.' 1 Restatement, Contracts 2d, sec. 24 (1981)
f common law legal usage. And it is generally the case that when a legal instrument omits explicit time limits to do something permitted or required, it does not ordinarily mean that there are no time limits at all. See 1 Restatement, Contracts 2d, sec. 41 (1981); 1 Corbin, Corbin on Contracts, sec. 2.16 at 203 (1993) (“[i]f the offeror has not communicated a specific time limit with sufficient definiteness, the power of acceptance by the offeree continues for a reasonable time * * * [w]hat is a
of common law legal usage. And it is generally the case that when a legal instrument omits explicit time limits to do something permitted or required, it does not ordinarily mean that there are no time limits at all. See 1 Restatement, Contracts 2d, sec. 41 (1981); 1 Corbin, Corbin on Contracts, sec. 2.16 at 203 (1993) (“[i]f the offeror has not communicated a specific time limit with sufficient definiteness, the power of acceptance by the offeree continues for a reasonable time * * * [w]hat is
In support of his position, respondent emphasizes petitioners' tax treatment of options for section 41, Credit For Increasing Research Activities, and section 83 purposes.
41.25 (1970 ed.); see Dillin v. Commissioner, 56 T.C. 228, 243 (1971) (discussing B visas and applying 22 C.F.R. sec. 41.25 (1970 ed.)). - 10 - Petitioner was not engaged in the sale of stock as a trade or business in 1979. Petitioner owned a rental apartment near London that he had received as a gift. He never lived in that apartment. C. Eve
41.25 (1970 ed.); see Dillin v. Commissioner, 56 T.C. 228, 243 (1971) (discussing B visas and applying 22 C.F.R. sec. 41.25 (1970 ed.)). - 10 - Petitioner was not engaged in the sale of stock as a trade or business in 1979. Petitioner owned a rental apartment near London that he had received as a gift. He never lived in that apartment. C. Eve
After concessions, the issue is whether petitioners are entitled to the section 41 research credit.
After concessions, the issue is whether petitioners are entitled to the section 41 research credit.
After concessions, the issue is whether petitioners are entitled to the section 41 research credit.
41.740 (1999), provides: When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or 9“The so-called parol evidence rule is a misnomer; the rule is one of substantive law and not one of evidence.” E
ks. - 8 - business was based on our interpretation of section 1281 as originally enacted in 1984. As originally enacted, section 1281(a) applied only to acquisition discount or original issue discount. Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 41, 98 Stat. 548. Section 1281 was amended in 1986 to add the provisions of section 1281(a)(2). Tax Reform Act of 1986, Pub. L. 99-514, sec. 1803, 100 Stat. 2791. In Security Bank Minn., we first analyzed section 1281 in its original form. On the
Unlike the regulations under section 174, which are silent about the means of discovering information, the conference report accompanying the TRA 1986 made it clear that a more structured method of discovery is required with respect to section 41.
de banking and other financial services, developed or modified previously developed software for the internal management and administration of its businesses (internal use software). N seeks tax credits for increasing research activities pursuant to sec. 41, I.R.C., with respect to expenditures associated with the development of its internal use software. The parties selected 8 of 67 internal use software activities to serve as representative or sample activities to determine whether all or part
Internal Use Software . 487 3. The Seven Tests . 488 A. The Section 174 Test . 489 B. The Discovery Test . 491 C. The Business Component Test . 495 D. The Process of Experimentation Test . 495 E. The Innovativeness Test . 498 F. The Significant Economic Risk Test. 499 G. The Commercial Availability Test . 500 4. Summary of Inter
494, 531, is substantively identical to former section 1232A(a)(1). - 5 - year the amount of the accrued discount allocable to the portion of the taxable year in which he or she held such debt instrument. See Security Bank Minn. v. Commissioner, 994 F.2d 432, 436 (8th Cir. 1993), affg. 98 T.C. 33 (1992). The rationale for inclusi
sential terms. Heil v. Commissioner, T.C. Memo. 1994-417; 17A Am. Jur. 2d, Contracts, secs. 27 and 28 (1991); 1 Williston on Contracts, sec. 3:5 (4th ed. 1990). Mutual assent generally requires an offer and an acceptance. 17A Am. Jur. 2d, Contracts, sec. 41 (1991). "An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." 1 Restatement, Contracts 2d, sec. 24 (1981)
ng the policy, Royal may have had a defense to payment on the policy. The only wrongdoing was a rebating of the premium to petitioner by Schwab. Under Idaho's insurance statutes, unauthorized rebating by an insurance agent is illegal. See Idaho Code sec. 41-1314 (1991). In this case, rebating also violated the terms of the agreement and contractual relationship between the insurer and the agent, but has no direct effect on the insured. Royal might have had recourse to recover the rebated portion
sential terms. Heil v. Commissioner, T.C. Memo. 1994-417; 17A Am. Jur. 2d, Contracts, secs. 27 and 28 (1991); 1 Williston on Contracts, sec. 3:5 (4th ed. 1990). Mutual assent generally requires an offer and an acceptance. 17A Am. Jur. 2d, Contracts, sec. 41 (1991). "An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." 1 Restatement, Contracts 2d, sec. 24 (1981)