Tax Law

Xilinx, Inc. v. Comm'r, 2010 U.S. App. LEXIS 778 (9th Cir. Jan. 13, 2010)

The Ninth Circuit withdrew its May 2009 decision (Xilinx, Inc. v. Comm'r, 567 F.3d 482 (9th Cir. 2009)) in Xilinx, Inc. v. Comm'r, 2010 U.S. App. LEXIS 778 (9th Cir. Jan. 13, 2010). In the May decision, the Commissioner had contended that employee stock options (ESOs) issued to employees involved in research and development activities were costs that should have been shared between the taxpayer and its foreign subsidiary for the tax years 1997, 1998, and 1999. Sharing these costs with the subsidiary yielded a reduced deduction and increased taxable income. The Commissioner did not dispute the Tax Court's factual finding that unrelated parties would not share ESOs as a cost but instead maintained that ESOs were a cost that must be shared under former § 1.482-7(d)(1) even if unrelated parties would not share them. The court held that § 1.482-7(d)(1)'s all costs requirement was irreconcilable with 26 C.F.R. § 1.482-1(b)(1)'s requirement that an arm's length standard should apply in every case and that § 1.482-7(d)(1), as the more specific provision, controlled. The court further held that ESOs were "costs related to the intangible development area" and thus must be shared between controlled parties in a cost sharing agreement. Because the taxpayer was not a foreign entity, applying § 1.482-7(d)(1) did not violate the 1997 United States-Ireland Tax Treaty.