Fourth Quarter Newsletter 2018

As previously reported by Ropes & Gray, on July 24, 2018, the Ninth Circuit reversed the Tax Court’s prior decision in the Altera case and upheld the IRS regulation requiring the allocation of stock-based compensation in qualified cost-sharing agreements. The decision was particularly notable since it ended in a 2-1 vote, in which Judge Reinhardt, who passed away in March 2018, cast the deciding vote. Late last week, the Ninth Circuit appointed a new judge, Susan Graber, to replace Judge Reinhardt under a local procedural order mandating that the court clerk randomly draw a replacement judge upon the death of any panel member. However, in lieu of awaiting any motions for rehearing, today the Ninth Circuit withdrew its opinion “to allow time for the reconstituted panel to confer on this appeal.” Since a withdrawn decision has no legal effect and the decision of the court could change, affected taxpayers who have not already taken action in response to the decision should consider watching and waiting for a new opinion to be issued before taking any further action. To read today’s order, click here.

In a recent Law360 article, Kat Gregor provides insight on the Ninth Circuit’s ruling in the Altera case. The article analyzes what factors might lead to a reconsideration of the decision—a rare en banc review. If the decision stands, billions of dollars are at stake for multinational corporations. With this idea in mind, Kat noted that “if other companies are in similar positions as Altera and apply for a tax refund, they are now likely to be denied those tax benefits following the Ninth Circuit’s decision.”

Click here to read the full article.

In two recent Bloomberg Law articles, Kat Gregor comments on rules governing deductibility of payments enacted to governments as part of 2017 tax reform, including deporting requirements under section 6050X of the Code. The purpose of these new guidelines is to “boost transparency in corporate settlements and make it easier for the IRS to keep track of how much of a settlement payment a company is required to pay off.” Kat specifically notes that the Code’s vague standard might lead to misinterpretation by foreign courts as to what constitutes as restitution or compliance payments (as compared to non-deductible payments).

Click here and here to read more of Kat’s insights.

In an unexpected 2-1 decision, Judge Reinhardt, who passed away in March of this past year, cast the Ninth Circuit’s deciding vote to reverse the Tax Court’s prior ruling in Altera. In 2015, the Tax Court invalidated Treasury Regulation 1.482-7A(d)(2)’s requirement that related parties allocate stock-based compensation costs when entering into cost-sharing agreements to develop intangible assets. The Tax Court’s decision in Altera centered on the IRS’s failure to support the regulation with examples of unrelated parties sharing stock-based compensation costs (comparable uncontrolled transactions). This failure was fatal, according to Judge Marvel of the Tax Court, because to require related taxpayers to share stock-based compensation absent any evidence of similar behavior by unrelated parties would mean the regulation did not seek parity between these groups of taxpayers, contrary to the long-standing arm’s-length principle for transfer pricing. As a result, the Tax Court held that the regulation did not meet the reasoned decision-making standard in the State Farm Supreme Court case.

Click here to read the full alert.

Move over, South Dakota v. Wayfair Inc. During the long debate over the U.S. Supreme Court’s physical presence standard for state sales taxes, a quiet revolution in state corporate income taxes has been taking place — the shift to market-based sourcing for services income. By the early 2000s, only a smattering of states had adopted market-based sourcing; by 2018, that number has grown to include more than half of the states. Now that the Supreme Court has resolved the physical presence standard in its recent Wayfair decision, bringing with it new nexus standards for state taxes, will market-based sourcing be the next state tax debate?

Click here to read the full Law360 article that contains further insights from Gabby and Michael Benison, a summer associate at Ropes & Gray.