# Eaton Corp. v. Comm'r > United States Tax Court · July 26, 2017 · 114 T.C.M. 90 URL: https://www.frixlaw.com/law-library/cases/4340787 ## Case - **Full name:** EATON CORPORATION AND SUBSIDIARIES v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Tax Court - **Decided:** July 26, 2017 - **Citations:** 114 T.C.M. 90; 2017 T.C. Memo. 147; 2017 Tax Ct. Memo LEXIS 147 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4340787 ## Opinion text T.C. Memo. 2017-147 UNITED STATES TAX COURT EATON CORPORATION AND SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 5576-12. Filed July 26, 2017. P and R entered into two advance pricing agreements (APAs) establishing a transfer pricing methodology for covered transactions between P and its subsidiaries. The first APA (APA I) applied for P’s 2001-05 tax years, and the second APA (APA II) applied for P’s 2006-10 tax years. P and R agreed that the legal effect and administration of APA I and APA II were governed by Rev. Proc. 96- 53, 1996-2 C.B. 375, and Rev. Proc. 2004-40, 2004-2 C.B. 50, respectively. In 2011 R determined that P had not complied with the applicable terms of the revenue procedures and canceled APA I, effective January 1, 2005, and APA II, effective January 1, 2006. As a result of canceling the APAs, R determined that under I.R.C. sec. 482 an adjustment was necessary to reflect an arm’s-length result for P’s intercompany transactions. -2- [*2] P contends that R’s cancellation of APA I and APA II was an abuse of discretion because there was no basis for the cancellation under the applicable revenue procedures. R contends that the determination to cancel both APA I and APA II was not an abuse of discretion because P did not comply in good faith with the terms and conditions of either APA I or APA II and failed to satisfy the APA annual reporting requirements. As an alternative position, R determined that P transferred intangible property compensable under I.R.C. sec. 367(d) to P’s controlled foreign affiliates for tax year 2006. On July 15, 2005, P entered into a stock purchase agreement to purchase all of the outstanding stock of THI. THI planned to enter into bonus agreements with certain executives that provided for stock option grants. THI entered into agreements with certain executives to provide them with cash bonuses in exchange for their release of claims related to any stock options. For tax year 2005 P claimed a deduction for the bonus amount payments. R determined that P was not entitled to the deduction and that the bonus payments should have been capitalized under I.R.C. sec. 263. P contends that it is entitled to a deduction under I.R.C. sec. 162(a) because the bonus payments represented additional employee compensation. Held: R’s determination to cancel APA I and APA II was an abuse of discretion. Held, further, P did not transfer intangibles subject to I.R.C. sec. 367(d). Held, further, P’s bonus payments represented employee compensation, entitling P to a deduction under I.R.C. sec. 162(a). -3- [*3] Joel V. Williamson, John T. Hildy, Charles P. Hurley, Brian W. Kittle, Erin G. Gladney, Geoffrey M. Collins, James B. Kelly, John W. Horne, Rajiv Madan, Julia Kazaks, Royce L. Tidwell, Kiara L. Rankin, Christopher P. Murphy, Sonja Schiller, Nathan P. Wacker, and Pamela C. Martin, for petitioner. John M. Altman, Justin L. Campolieta, Ronald S. Collins, Jr., Matthew J. Avon, Michael S. Coravos, Michael Y. Chin, Jennifer A. Potts, Laurie Nasky, and William T. Derick, for respondent. CONTENTS FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. Overview of Eaton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Corporate Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Overview of Eaton’s Breaker Products . . . . . . . . . . . . . . . . . . . . . . . 13 C. The Island Plants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1. Background and Restructuring . . . . . . . . . . . . . . . . . . . . . . . . 16 2. Operations During 2005 and 2006 . . . . . . . . . . . . . . . . . . . . . 22 D. Domestic Assembly and Equipment Plants. . . . . . . . . . . . . . . . . . . . 23 E. Domestic Component Plants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 F. Third-Party Distributors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 II. Tax & Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 A. Financial Reporting System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 B. The VISTA System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 C. Mirror Ledgers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 III. Background to APA Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 A. The APA Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 B. The 1994-97 Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 -4- [*4] 1. The Audit Team Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 2. Historical and Proposed Transfer Pricing Methods . . . . . . . . 34 a. Historical TPM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 b. Proposed TPM Provided to the 1994-97 Audit Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 3. Information Shared . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 a. Mirror Ledgers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 b. U.S. Assembly and Breaker Products . . . . . . . . . . . . . . 38 IV. The APAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 A. Covered Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 B. APA I: 2001-05 Tax Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 1. Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 2. APA Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 a. Prefiling Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 b. APA I Team’s Questions. . . . . . . . . . . . . . . . . . . . . . . . 44 c. APA I Application Submission . . . . . . . . . . . . . . . . . . 45 i. Proposed APA I TPMs . . . . . . . . . . . . . . . . . . . . 45 ii. Information Petitioner Provided With Its APA I Application Submission . . . . . . . . . . . . . . . . . . . 48 d. APA I Team’s Due Diligence Questions . . . . . . . . . . . 50 i. VISTA Response . . . . . . . . . . . . . . . . . . . . . . . . 51 ii. Profit Split Response . . . . . . . . . . . . . . . . . . . . . 51 iii. Volume Discounts Response . . . . . . . . . . . . . . . 53 iv. SG&A Expense Allocations . . . . . . . . . . . . . . . . 55 v. Other Business Operations . . . . . . . . . . . . . . . . . 56 vi. Markup Analysis. . . . . . . . . . . . . . . . . . . . . . . . . 57 vii. Berry Ratio Negotiation . . . . . . . . . . . . . . . . . . . 59 viii. Petitioner’s Concessions. . . . . . . . . . . . . . . . . . . 61 3. APA I Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 a. TPM and Berry Ratio for Breaker Product Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 b. SG&A Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 c. APA I TPMs for Intangibles Transfer and Cost-Sharing Payment. . . . . . . . . . . . . . . . . . . . . . . . . . 65 d. Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 e. Materiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 -5- [*5] f. Critical Assumptions. . . . . . . . . . . . . . . . . . . . . . . . . . . 67 4. APA I Implementation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 a. Canadian Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . 68 b. Disclosure of Book-Tax Difference and APA Multiplier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 c. 2005 Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 C. APA II: 2006-10 Tax Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 1. Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 2. APA II Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 a. Prefiling Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 b. APA II Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 c. APA II Team’s Due Diligence Questions. . . . . . . . . . . 77 i. Profit Split. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 ii. Installed Base Marketing Intangible. . . . . . . . . . 80 iii. Technology Intangibles . . . . . . . . . . . . . . . . . . . 83 iv. Volume Discounts. . . . . . . . . . . . . . . . . . . . . . . . 83 d. SG&A Expense Allocations . . . . . . . . . . . . . . . . . . . . . 84 e. EEI U.S. Distribution as the Tested Party . . . . . . . . . . 85 f. Licensing of Intangible Property Not Included . . . . . . 87 3. APA II Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 a. SG&A Expenses and TPM for Breaker Products Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 b. Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 c. Materiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 d. Critical Assumption . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 4. 2006 Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 V. Implementation of APAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 A. Difference Between Mirror Ledgers and Constructed Income Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 B. APA Multiplier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 C. APA Annual Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 D. APA Annual Reports and Book-Tax Differences . . . . . . . . . . . . . . . 95 E. Petitioner’s Data or Computational Errors . . . . . . . . . . . . . . . . . . . . 95 1. Discovery and Reporting of Errors . . . . . . . . . . . . . . . . . . . . . 96 2. APA Multiplier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 -6- [*6] 3. Errors Affecting the Computation of the Transfer Price Under the APA TPM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 a. OEM Categorization . . . . . . . . . . . . . . . . . . . . . . . . . . 102 b. Purchase Resale Error . . . . . . . . . . . . . . . . . . . . . . . . . 103 c. Operating Expenses Associated with Breaker Products Not Manufactured by the Island Plants. . . . . . . . . . . . 105 d. International Sales Error . . . . . . . . . . . . . . . . . . . . . . . 106 e. Error in Identifying Sales of Industrial Breakers Through Lincoln . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 f. Lincoln Multiplier Error . . . . . . . . . . . . . . . . . . . . . . . 109 g. Error in Computation of Manufacturing Costs for Nonexact Matches. . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 VI. Petitioner’s Supplemental and Third APA . . . . . . . . . . . . . . . . . . . . . . . . 111 VII. Cancellation of APAs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 VIII. Notice of Deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 IX. Tractech Bonuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 I. Cancellation of APAs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 A. Overview of Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 1. Petitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 2. Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 B. History of the APA Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 C. Applicable Revenue Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 1. Rev. Proc. 96-53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 2. Rev. Proc. 2004-40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 D. Background on Section 482 and Applicable Regulations. . . . . . . . 129 E. Scope and Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 F. APA Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 1. Profit Split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 2. Tested Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 3. Business Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 -7- [*7] 4. Mirror Ledgers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 5. Relationship Between Breaker Products and U.S. Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 6. SG&A Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 7. Southbound Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 8. APA Multiplier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 9. Lincoln Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 G. Analysis Regarding APA Negotiations . . . . . . . . . . . . . . . . . . . . . . 151 H. APA Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 1. Error in Supporting Data and Computations. . . . . . . . . . . . . 164 2. Errors Affecting the Computation of the Transfer Price Under the APA TPM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 a. OEM Categorization . . . . . . . . . . . . . . . . . . . . . . . . . . 170 b. Purchase Resale Error . . . . . . . . . . . . . . . . . . . . . . . . . 170 c. Operating Expenses Associated With Breaker Products Not Manufactured by the Island Plants . . . . 171 d. International Sales Error . . . . . . . . . . . . . . . . . . . . . . . 171 e. Sales of Industrial Breakers Through Lincoln . . . . . . 172 f. Lincoln Multiplier Error . . . . . . . . . . . . . . . . . . . . . . . 173 g. Error in Computation of Manufacturing Costs for Nonexact Matches. . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 h. Analysis of Errors Affecting the Computation of the Transfer Price Under the APA TPM. . . . . . . . . . . 174 3. Compliance With the Terms of the APAs. . . . . . . . . . . . . . . 180 a. Book-Tax Differences and Compensating Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 b. Forms 1120 and Compliance With the APA . . . . . . . 181 c. Canadian Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . 184 d. VISTA Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 e. Analysis of Compliance . . . . . . . . . . . . . . . . . . . . . . . 187 4. Critical Assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 5. Amended APA II Annual Reports. . . . . . . . . . . . . . . . . . . . . 189 I. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 II. Transfer of Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 -8- [*8] III. Tractech Bonuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 MEMORANDUM FINDINGS OF FACT AND OPINION KERRIGAN, Judge: The Internal Revenue Service (IRS or respondent) determined deficiencies in petitioner’s Federal income tax of $19,714,770 and $55,323,229 for tax years 2005 and 2006, respectively, and accuracy-related penalties of $14,281,960 and $37,329,600 for tax years 2005 and 2006, respectively.1 Unless otherwise indicated, all section references are to the Internal Revenue Code in effect during the years at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. We round all monetary amounts to the nearest dollar. Petitioner and respondent entered into two advance pricing agreements (APAs). The first APA covered petitioner’s 2001 through 2005 tax years (APA I), and the second APA covered petitioner’s 2006 through 2010 tax years (APA II). In 2011 respondent canceled APA I effective January 1, 2005, and canceled APA II effective January 1, 2006. 1 The notice of deficiency includes several adjustments that are computational. -9- [*9] The first issue for our consideration is whether respondent’s cancellation of petitioner’s APAs covering tax years 2005 and 2006 was an abuse of discretion. The Court’s resolution of this issue will determine whether additional issues need to be considered. If we conclude that the cancellation of the APAs was not an abuse of discretion, we must decide whether respondent’s section 482 adjustments to petitioner’s intercompany transfer pricing for tangible and intangible property between petitioner’s U.S. affiliates and its controlled foreign affiliates were arbitrary and capricious. Alternatively, if the Court does not hold for respondent on the section 482 adjustments and the cancellation of the APAs for tax years 2005 and 2006, we must consider whether Eaton Electrical de Puerto Rico, Inc. (EEPR), transferred intangible property compensable under section 367(d) to petitioner’s controlled foreign affiliates for tax year 2006. If we sustain respondent’s determination to cancel APA I and APA II for tax years 2005 and 2006, respectively, and we hold for respondent on the section 482 adjustments, we will need to consider whether petitioner is liable for penalties pursuant to section 6662(e) and (h). The unrelated remaining issue for our consideration is whether bonus payments to Tractech executives were deductible for tax year 2005 pursuant to section 162(a) or should have been capitalized pursuant to section 263. -10- [*10] On August 5, 2015, the Court issued a protective order to prevent disclosure of petitioner’s proprietary and confidential information.2 The facts and opinion have been adapted accordingly, and any information set forth herein is not proprietary or confidential. FINDINGS OF FACT I. Overview of Eaton Eaton Corp. is an Ohio corporation. Its principal place of business was in Cleveland, Ohio, when it timely filed its petition. During 2005 and 2006 Eaton Corp. was the parent corporation of a group of consolidated corporations and multinational affiliated subsidiaries (collectively, Eaton or petitioner). Eaton is a global manufacturer of electrical and industrial products. Eaton was incorporated in Ohio in 1916 as a successor to a New Jersey company incorporated in 1911. A. Corporate Structure During the tax years at issue Eaton was the publicly held parent corporation of a group of U.S. and foreign companies, including: (1) Eaton Electrical, Inc. (EEI); (2) EEPR; (3) Cutler-Hammer Industries, Ltd. (CHIL); (4) Eaton Industries Manufacturing GmbH (EIMG); (5) Cutler-Hammer Co. (CHC); and (6) Cutler- Hammer Electrical Co. (CHEC). 2 The Court amended paragraph 7(c) of this order on August 17, 2015. -11- [*11] EEI is a Delaware corporation formerly known as Cutler-Hammer, Inc. (CHI). On August 23, 2003, CHI changed its name to EEI.3 During the tax years at issue EEI was a first-tier, wholly owned subsidiary of Eaton. EEI supplied electrical power and control products through a network of manufacturing and distribution facilities. EEPR owned and operated a number of these manufacturing and distribution facilities. EEPR is a Delaware corporation formerly known as Cutler-Hammer de Puerto Rico, Inc. (CHPR). On October 23, 2003, CHPR changed its name to EEPR. During the tax years at issue EEPR was a first-tier, wholly owned subsidiary of EEI and operated as a possession corporation, pursuant to an election under section 936, through December 31, 2005. Effective January 1, 2006, the remainder of EEPR’s operations functioned as a branch of CHC. CHIL is a Cayman Islands corporation. On December 31, 2002, CHIL acquired all the assets of Cutler-Hammer, S.A., a corporation organized under the laws of the Dominican Republic. During 2005 and until April 28, 2006, CHIL was a direct subsidiary of EEI. On April 28, 2006, CHIL’s stock was contributed 3 As the exhibits did, we reference CHI and EEI with the understanding that they refer to the same entity. We use CHI when referring to it before August 23, 2003. We use EEI when referring to it after August 23, 2003. We use CHI/EEI when referring to years that cover before and after August 23, 2003. -12- [*12] to EIMG, a Swiss corporation and indirect subsidiary of Eaton. On April 29, 2006, CHIL elected to be treated as a disregarded entity for U.S. tax purposes. During the tax years at issue CHIL conducted branch operations in the Dominican Republic.4 CHC is a Cayman Islands corporation. From its organization on November 23, 2000, until July 31, 2006, CHC was a first-tier, wholly-owned subsidiary of EEPR. On July 31, 2006, EIMG acquired CHC in a section 368(a)(1)(D) reorganization. On August 26, 2006, for U.S. tax purposes CHC elected to be treated as a disregarded entity, effective August 2, 2006. CHC conducted branch operations in Puerto Rico. On November 16, 2005, CHEC was organized under the laws of the Cayman Islands. From November 16, 2005, until July 31, 2006, CHEC was a first-tier, wholly owned subsidiary of EEPR. CHEC did not conduct any business activity during tax year 2005. CHEC conducted branch operations in Puerto Rico during tax year 2006. On July 31, 2006, the stock of CHEC was contributed to EIMG, and on August 26, 2006, CHEC elected to be treated as a disregarded entity for U.S. tax purposes, effective August 2, 2006. 4 For the services CHIL provided on behalf of CHC and CHEC, CHIL was compensated through a monthly fee equal to its costs plus a fixed markup. The compensation to CHIL is not at issue. -13- [*13] B. Overview of Eaton’s Breaker Products During the years at issue Eaton developed, manufactured, and sold circuit breaker and electrical control products (collectively, breaker products) through various manufacturing plants (collectively, Island plants) in Puerto Rico and the Dominican Republic. The Island plants operated through EEPR, CHC, CHEC, and CHIL, and manufactured most of petitioner’s breaker products. Breaker products are safety products, designed to regulate and manage the flow of electricity. Breakers open and close electrical circuits safely upon detection of abnormal circuit conditions. A breaker should trip when it detects too much electricity being drawn through the attached wires or when it senses a short circuit. Control products, such as starters, push buttons, and contractors, control electricity that powers electrical or electromechanical devices. Control products protect operators of equipment and the machinery itself by safely turning the machinery on or off or by governing its speed. Breaker products are heavily regulated because of their safety aspect. In the United States, Underwriters Laboratories, Inc. (UL), is the organization that evaluates and approves breaker products. The National Electrical Code (NEC) specifies that certain devices used in an electrical system must be “listed” devices, defined as devices that have been evaluated and approved by an organization with -14- [*14] the authority to make such a determination. See NEC 2005, NFPA 70: National Electric Code, International Electric Code Series, at 70-29, http://dsps.wi.gov/Documents/Industry%20Services/Forms/Elevator/HistoricalCo des/2005%20NEC.pdf. UL is a private company, approved by the U.S. Department of Labor as a Nationally Recognized Testing Laboratory. See United States Department of Labor, Occupational Safety and Health Administration (OSHA): OSHA’s Nationally Recognized Testing Laboratory (NRTL) Program, Current List of NRTLs, https://www.osha.gov/dts/otpca/nrtl/nrtllist.html. If a breaker product meets UL requirements, it receives a UL label. If a breaker product does not meet UL requirements, it cannot be sold in the United States. During the tax years at issue the U.S. breaker product manufacturing industry was composed of Eaton and four major competitors: Schneider Electric (Schneider), General Electric Corp. (GE), Siemens A.G. (Siemens), and to a lesser extent, ASEA Brown Boveri, Ltd. (ABB). These same competitors, as well as Rockwell Automation, manufactured control products. The Island plants manufactured a wide variety of breaker products on a large scale. Eaton manufactured component parts used to make breaker products in various feeder plants on the Islands. The feeder plants assembled the various component parts into final breaker products. A single breaker product can have as -15- [*15] many as 100 component parts. In 2005 and 2006 the Island plants manufactured most of the component parts that went into the breaker products. Eaton’s U.S. plants manufactured the component parts that were sold and shipped to the Island plants for incorporation into the products that the Island plants manufactured and assembled. Eaton’s U.S. plants manufactured a small number of the component parts used by the Island plants to assemble finished breaker products. Eaton sold the same breaker products both internally to its assembly operations and to third parties. The Island plants sold the finished breaker products to two parts of EEI in the United States: (1) EEI’s assembly plants (U.S. assembly), which inserted the breaker products into the electrical panelboards and switchgear, and (2) EEI’s distribution department (U.S. distribution), which was responsible for selling breaker products to third parties. Third parties that purchased breaker products could be categorized as original equipment manufacturers (OEMs), distributors, or other large direct customers such as retailers, large contractors, or industrial users. OEMs used the breaker products that they purchased as components in larger products such as the panelboards and switchgears. OEMs often competed with EEI’s assembled products. Hundreds of OEMs manufactured assembled products, and most of them did not manufacture -16- [*16] the components that they needed for assembly. Only a few companies, such as Eaton, manufactured breaker products and produced assembled products. Whether the breaker products were sold to U.S. assembly, OEMs, or any other customer, the Island plants manufactured them in the same manner. C. The Island Plants 1. Background and Restructuring On January 31, 1994, petitioner acquired the Westinghouse Distribution and Control Business Unit (DCBU) from Westinghouse Electric Corp. (Wesco). Petitioner acquired facilities in Puerto Rico which manufactured three product lines: miniature circuit breakers (MCBs), molded case circuit breakers (MCCBs), and control products. In connection with the DCBU acquisition from Wesco, CHPR purchased the business owned and conducted by Westinghouse de Puerto Rico, a Delaware corporation, including manufacturing intangible assets. The purchase agreement defined manufacturing intangible assets as those defined by section 936(h)(3)(B)(i) and section 1.936-6(c), Income Tax Regs. As part of the purchase agreement petitioner acquired the following three facilities in Puerto Rico: (1) an MCB facility in Aguas Buenas, Puerto Rico, (2) an MCCB manufacturing facility in Toa Baja, Puerto Rico, and (3) a control product manufacturing facility in -17- [*17] Coamo, Puerto Rico.5 The Toa Baja facility was moved and consolidated with existing operations in Arecibo in 2001. The Island plants manufactured different breaker products in different manufacturing plants because the equipment, materials, and skills required to manufacture them varied among the plants. Westinghouse began manufacturing MCBs in Puerto Rico in 1973. It began making MCCBs and control products in Puerto Rico in 1968 and 1976, respectively. Before the DCBU merger CHPR had it own operations in Puerto Rico. The Cabo Rojo facility opened in 1975. In response to the phaseout of section 936 benefits, CHPR transferred assets to CHC and CHEC in a series of transfers between December 29, 2000, and January 1, 2006. CHPR/EEPR transferred assets to CHC and CHEC at various times between December 29, 2000, and January 1, 2006. For each tangible asset transfer, CHI/EEI licensed certain intangible property related to the transferred tangible assets to CHC or CHEC. Licensing agreements were executed on the following dates: (1) December 29, 2000, (2) December 1, 2001, (3) June 1, 2005, and (4) January 1, 2006. 5 The record does not explain what happened to the Aguas Buenas facility. -18- [*18] Effective December 29, 2000, CHI and CHC entered into a license agreement whereby CHI granted a nonexclusive license to use, including the right to sublicense, a broad class of intangible property that CHC used to manufacture and assemble certain breaker products. The categories of intangible property that CHI licensed to CHC included all patents, trademarks, copyrights, maskworks, and “information” necessary to, or used in, the operation of CHC in manufacturing breaker products. In exchange for the license CHC agreed to pay CHI a royalty of 4% of CHC’s net sales of the licensed breaker products. CHC also granted back to CHI a royalty-free exclusive license to use, including the right to sublicense, all patents, trademarks, copyrights, maskworks, and information related to the breaker products that were developed by CHC. The CHI and CHC license agreement was amended on December 1, 2001, and again on June 1, 2005, to include intangible property associated with additional breaker products. The amendments increased the royalty rate from 4% to 6.45% of net sales. All other terms and conditions generally remained the same. Effective January 1, 2006, EEI and CHEC entered into a license agreement whereby EEI granted to CHEC a nonexclusive license to use a broad class of intangible property that CHEC used to manufacture certain additional breaker -19- [*19] products. The terms of the EEI and CHEC license agreement were substantially similar to the terms of the CHI and CHC license agreement (as amended), including the royalty rate of 6.45% of net sales, except that under the terms of the EEI and CHEC license agreement: (1) EEI licensed to CHEC all intangible property related to breaker products that was subsequently developed or acquired by EEI and (2) CHEC agreed to reimburse EEI for the intangible development costs associated with any subsequently developed or acquired intangible property. On December 29, 2000, CHPR transferred assets with a net book value of $4,736,230 and a certain number of employees to CHC. CHC received the assets as a contribution to capital and agreed to offer immediate employment to the employees. On December 1, 2001, CHPR agreed to transfer assets with a net book value of $6,086,194 and a number of employees located and employed at the Coamo facility to CHC. CHC received the assets as a contribution to capital and agreed to offer immediate employment to the employees. The December 1, 2001, asset transfer agreement listed that assets would be transferred to CHC on three particular dates: December 17, 2001, January 29, 2002, and February 13, 2002. -20- [*20] On its 2001 Form 926, Return by U.S. Transferor of Property to a Foreign Corporation, dated June 29, 2002, CHPR reported that on December 17, 2001, it had transferred assets in a section 351 nonrecognition transaction. Petitioner checked “yes” for the question whether intangible property within the meaning of section 936(h)(3)(B) was transferred. The attachment to the Form 926 explained that the transferee entered into an intellectual property license with CHI. On January 2, 2002, CHPR agreed to transfer assets with a net book value of $3,697,284 and a number of employees located and employed at the Las Piedras facility to CHC. CHC received the assets as a contribution to capital. On its 2002 Form 926 dated September 12, 2003, CHPR reported that it had transferred assets to CHC on January 2, January 29, and February 13, 2002, respectively, in three section 351 nonrecognition transactions. Petitioner checked “yes” for the question whether intangible property within the meaning of section 936(h)(3)(B) was transferred. The attachment to the Form 926 explained that the transferee entered into an intellectual property license with CHI. On June 1, 2005, EEPR entered into two asset transfer agreements with CHC. Pursuant to the first asset transfer agreement, EEPR transferred assets and employees from the Arecibo, Cabo Rojo, and Las Piedras facilities as contributions to the capital of CHC. Pursuant to the second asset agreement, -21- [*21] EEPR contributed an undivided joint interest in certain common assets owned by EEPR and jointly used by CHC and EEPR since June 1, 2005, in support of the manufacturing operations of the two companies at the Cabo Rojo, Las Piedras, and Arecibo facilities. On its 2005 Form 926 EEPR reported that it had transferred assets to CHC on June 1, 2005, in a section 351 nonrecognition transaction. Petitioner checked “yes” for the question whether intangible property within the meaning of section 936(h)(3)(B) was transferred. The attachment to the Form 926 explained that the transferee entered into an intellectual property license with EEI . On January 1, 2006, EEPR agreed to transfer assets and a number of employees to CHEC. CHEC received the assets as a contribution to capital and agreed to offer immediate employment to the employees. The asset agreement did not provide a net book value amount for the transferred assets. On its 2006 Form 926 EEPR reported that it had transferred various operating assets to CHEC on January 1, 2006, in a section 351 nonrecognition transaction. Petitioner checked “no” for the question whether intangible property within the meaning of section 936(h)(3)(B) was transferred. The attachment to the Form 926 made no mention of an intellectual property license. -22- [*22] 2. Operations During 2005 and 2006 In 2001 MCCB operations took place in Puerto Rico, and those operations remained there until 2007. During 2005 and 2006 petitioner had four manufacturing facilities in Puerto Rico and an assembly plant in the Dominican Republic. Starting in 2007 and ending in 2008, MCCB assembly operations were transferred to the Dominican Republic, while manufacturing operations remained in Puerto Rico. Since 1976 control products have been manufactured in Puerto Rico. During 2005 and 2006 the Island plants included an assembly plant in Haina, Dominican Republic, and the following four manufacturing facilities in Puerto Rico: the Las Piedras plant, the Arecibo plant, the Cabo Rojo plant, and the Coamo plant. The Haina assembly facility had designated space for each of the product types that it received from the Puerto Rico plants. In 2005 and 2006 the Las Piedras plant manufactured finished breaker products, parts, and subassemblies for final assembly at the Haina facility. As of September 2005 the Arecibo plant, along with its sister operations in Haina, produced, assembled, and tested finished industrial MCCBs. During 2005 and 2006 the Cabo Rojo plant manufactured industrial fuses and switch-gear circuit breakers for low and medium voltage circuits. In 2005 and -23- [*23] 2006 the Coamo plant, along with its sister operation in Haina, manufactured electromechanical relays, contractors, starters, and operator- interface products, such as pushbuttons, indicating lights, and selector switches. D. Domestic Assembly and Equipment Plants Eaton owned and operated a number of facilities that manufactured and/or assembled products that incorporated Island plants manufactured products and other products. These facilities were in Asheville, North Carolina, Lincoln, Illinois, Cleveland, Tennessee, Fayetteville, North Carolina, Greenwood, South Carolina, and Sumter, South Carolina. The Lincoln plant produced a complete residential breaker product offering that covered three primary product groups: loadcenters, meter products, and air conditioning disconnects. The Lincoln plant’s steel fabrication operation fed its residential product offering business. CHI sold industrial breaker products directly to unrelated OEMs and to unrelated distributors through the Lincoln plant. These industrial breaker products consisted of breaker products manufactured by the Island plants as well as the Lincoln plant. The Lincoln plant stopped manufacturing industrial breaker products in 2006. Starting in April 2006 industrial breaker products were manufactured only in the Island plants. -24- [*24] E. Domestic Component Plants EEI operated domestic plants, which manufactured components and parts that were sold and shipped to the Island plants for incorporation into the products that the Island plants manufactured and assembled. These facilities were in Horseheads, New York, Beaver, Pennsylvania, and Watertown, Wisconsin. The Horseheads plant manufactured vacuum interrupters which were in systems that distribute, protect, and control electricity. The Island plants purchased vacuum interrupters from the Horseheads plant. The Beaver plant manufactured and assembled MCCBs, automatic transfer switches, low-voltage power breakers, and circuit breakers. The Watertown plant manufactured count control products, specific purpose control products, adjustable frequency drive, open and enclosed drives, metering products, relays, printed circuit boards, and operator interface equipment. The Watertown plant supplied printed circuit boards to the Island plants and to the Lincoln and Beaver plants. The Island plants purchased approximately $8 to $10 million of components per year from CHI out of more than $300 million of cost of goods sold (COGS), which the Island plants used to manufacture breaker products. These southbound transactions included the Island plants’ purchase of vacuum interrupters that were -25- [*25] manufactured in petitioner’s Horseheads plant. The Island plants incorporated the vacuum interrupters into the breaker products that it manufactured. The Island plants purchased other raw materials and components from unrelated third parties. F. Third-Party Distributors Third-party distributors played a role in the sale of CHI/EEI products. Third-party distributors resold the products they bought from CHI/EEI to smaller OEMs and industrial or utility customers, as well as to contractors. Most third- party distributor sales involved large, well-established electronics distribution companies. These companies offered broad lines of products and had developed complete distribution networks in the United States. A national third-party distributor typically carried a complete range of products from a large number of various-sized suppliers, including CHI/EEI and its direct competitors. During the years at issue the largest third-party distributor of CHI/EEI products was Wesco. CHI/EEI also had sales relationships with a number of regional electrical product distributors. II. Tax & Financial Reporting For the tax years at issue petitioner was a calendar year taxpayer that filed consolidated Federal income tax returns. Petitioner reported its income for -26- [*26] financial purposes on a calendar year and prepared its income statements and balance sheets in accordance with U.S. Generally Accepted Accounting Principles (GAAP). A. Financial Reporting System Petitioner used a financial reporting and management system called Hyperion for various purposes, including financial and legal consolidation of its several accounting ledgers. Petitioner used Encore, a system that received data from its ledgers, and Corptax, a system that consolidated its ledger data for U.S. tax reporting purposes. Accounting ledger data was maintained in an Oracle data base system. To prepare its tax returns petitioner ran a “Path8” Hyperion report, which mapped individual ledgers into legal entities. Petitioner’s financial reporting to the Securities and Exchange Commission (SEC) included financial results segmented by business area and geographic region. In 2005 and 2006 Eaton’s reported business segments included electrical, fluid power, truck, and automotive. The electrical segment comprised numerous financial accounting ledgers, including ledgers for EEI and the Island plants’ operations. -27- [*27] B. The VISTA System VISTA is a comprehensive legacy electronic order management system, which included sales and other functions that Eaton used for its electrical business. Third parties, Eaton’s salespersons, and Eaton’s internal purchasers could place product orders in VISTA. Westinghouse developed VISTA before Eaton acquired DCBU in 1994. Each VISTA invoice contained information relating to an invoice transaction, including transactional data such as customer name, customer ID, billing address, billing line, shipped-to address, invoice date, catalog number, product description, product code, the quantity of product sold, the unit sale price, the customer discount, and the total sale amount. Each VISTA invoice contained information necessary to reprint a hard copy invoice. The VISTA database recorded and retained transactional data. VISTA functioned like a relational database in that various related pieces of data on separate files were linked by key fields. The VISTA database stored native VISTA data on a direct-access storage device. The native VISTA data was stored and processed in extended binary coded decimal interchange code format, which is an eight-bit character code used in computing and data transmission. -28- [*28] VISTA data was processed on a mainframe computer. Mainframe computers are typically used by large organizations to perform large-volume activity, such as bulk data processing, statistics, and transaction processing. In 2005 and 2006 an end user, such as a salesperson or customer, could communicate with Eaton’s mainframe computer by using a PC or Eaton’s online order-entry application. When its mainframe executed a batch job or jobstream, the computer created a job log that documented the job statistics and cataloged the name of any files created from the successful or unsuccessful execution of the job. VISTA contained numerous files within its system. Once booked, the invoice data records within the invoice files did not change. To obtain annual invoice data, the database was filtered on the booking date to extract data inclusive of the year. EEI’s invoice information for sales to third parties and interunits were entered into VISTA. To create an invoice the VISTA system populated various data fields in the VISTA invoice files. One field was the “billing line” field, which included a three-digit code petitioner used to identify a set of financial accounts associated with a product and plant location. A particular plant might have multiple billing line codes associated with it. Each billing line code was -29- [*29] associated with a single Oracle ledger within petitioner’s financial reporting and accounting systems. Some of the relevant master files used in the VISTA system to populate certain fields in the VISTA invoice files included billing lines, country codes, customer category, invoice type codes, product families, and warehouse codes. The master files were dynamic and were updated in the ordinary course of petitioner’s business. The master files could change multiple times within the same business day. Most of the information of the master files changed very little over time. Petitioner did not archive copies of the VISTA system master files that were used each day during 2005 and 2006. During 2005 and 2006 petitioner’s mainframe computer ran a daily data extraction batch process called the daily billing wire to capture pertinent sales data from selected fields of the VISTA transactional files. The daily billing wire was appended daily to a weekly file, which was cataloged and permanently maintained in the VISTA system. After the daily billing wire was appended to the permanent weekly file, the daily billing wire was deleted. The weekly billing wire file was appended to an annual file named the market reporting sales billed extract (MRSB). Eaton used the MRSB data for reporting purposes. The MRSB data was cataloged and permanently archived on -30- [*30] petitioner’s mainframe systems. Eaton’s MRSB file contained information on EEI’s sales to the Puerto Rico operations. The MRSB file did not contain information on sales from the Puerto Rico operations to EEI. The sales invoices from Puerto Rico operations to EEI were recorded manually in the Oracle reporting system. Eaton’s VISTA programmers were responsible for creating reports used to show orders and sales specialists. These programmers generated reports used for transfer pricing calculations. C. Mirror Ledgers EEI maintained a group of ledgers that recorded EEI U.S. distribution’s purchase of breaker products from the Island plants and subsequent transfers of those products (hereinafter, mirror ledgers). EEI recorded the arm’s-length transfer price for the breaker products as an expense on the mirror ledgers. These expenses, or COGS, reduced the net income of EEI as reflected on the mirror ledgers. For 2005 and 2006 EEI maintained six mirror ledgers related to the Island plants’ operations. The mirror ledgers reflected revenue from sales of breaker products: (1) to third parties, including OEMs and distributors, at arm’s-length prices, and (2) to internal assembly plants at the price petitioner set for internal management -31- [*31] purposes (internal management price). The revenue from the sales to third parties at arm’s-length prices was included in EEI’s overall net U.S. taxable income. EEI sold or transferred breaker products as reflected on the mirror ledgers through various channels, including domestic OEMs, domestic distributors, domestic affiliates or operations, and international customers. For transfers of breaker products to domestic affiliates or operations, the mirror ledgers recorded the price paid for the breaker products at the internal management price. For internal purposes only EEI set the price for breaker products transferred internally within EEI to be approximately 1.3 times the cost of manufacturing the products. Setting the internal management price consistently at a lower markup on costs over time allowed EEI’s management to evaluate and compare the ongoing financial performance of different business segments within EEI. Maintaining a consistent internal management price avoided unnecessary disagreements between business units regarding the appropriate price for internal transactions. The transfer price for EEI U.S. distribution’s purchase of breaker products could be expressed as a mathematical equivalent markup on the Island plants’ cost for manufacturing the breaker products. Generally, during the years at issue, the transfer price computed under petitioner’s APAs was equivalent to approximately -32- [*32] 1.8 times the cost of manufacturing the breaker products. Petitioner’s internal management price was less than the transfer price computed under petitioner’s APAs. The mirror ledgers always showed operating losses because a significant portion of the revenue resulted from sales to internal assembly plants at the lower internal management price of 1.3 times cost, rather than 1.8 times cost--the arm’s- length price. The fact that the mirror ledgers always reflected losses was not indicative of the profitability of EEI or the breaker products. The profitability of EEI could be assessed only when all of its business ledgers were consolidated and all internal transactions--such as the sales of breaker products from EEI’s U.S. distribution to U.S. assembly at the internal management price--were eliminated because they had no economic effect on EEI’s overall profitability. The internal transactions did not make EEI’s total overall profits bigger or smaller. III. Background to APA Negotiations A. The APA Program The APA Program is a dispute resolution process designed to resolve actual or potential future transfer pricing disputes between the IRS and the taxpayer. See Announcement 2000-35, 2000-1, C.B. 922. The ultimate goal of the process is to enable taxpayers and the IRS to agree on three issues: (1) the intercompany -33- [*33] transactions to which the APA applies (covered transactions); (2) the transfer pricing methodology (TPM) applicable to the covered transactions; and (3) the expected arm’s-length range of results after applying the agreed-upon TPM to the covered transactions. See id., 2000-1 C.B. at 924. Before determining the appropriate APA TPM, the APA team and the taxpayer must reach an understanding of the relevant facts through a due diligence process, during which the APA team asks the taxpayer for any information it thinks necessary to verify that the taxpayer’s statements regarding the facts in the taxpayer’s APA application are true and complete. This due diligence process can be lengthy, and it typically involves one or more meetings between the taxpayer and the APA team over a period ranging anywhere between one and two years. Due diligence questions relate mostly to the taxpayer’s business, the mechanics of the TPM, and the economic issues associated with the TPM. B. The 1994-97 Audit Respondent audited petitioner’s 1994-97 tax returns, rejecting its proposal to use a comparable uncontrolled price (CUP) method for its TPM. Petitioner agreed to apply for an APA for its 2001 tax year as part of the settlement reached with respondent regarding the audit for petitioner’s 1994-97 tax years, and respondent agreed to work with petitioner in obtaining an agreement. The -34- [*34] settlement was finalized in February 2002. The APA process would provide respondent with the opportunity to further review petitioner’s proposed use of the CUP method. 1. The Audit Team Members The IRS audit team for the 1994-97 audit (audit team) included, among others, an international exam manager and two international examiners. Each of those audit team members was also a member of the APA I exam team. Petitioner’s primary participants in the 1994-97 audit were its senior vice president of tax, its vice president of Federal tax strategy, a senior manager from its tax department, and an economic consultant. 2. Historical and Proposed Transfer Pricing Methods a. Historical TPM Before its proposal to use a CUP method, petitioner used the cost-plus method. The cost-plus method evaluates whether the amount charged in an intercompany sale is arm’s length by reference to the gross profit markup realized in comparable uncontrolled transactions. See sec. 1.482-3(d)(1), Income Tax Regs. The CUP method evaluates whether the amount charged in a controlled transaction is arm’s length by reference to the amount charged in a comparable uncontrolled transaction. See id. para. (b). -35- [*35] Petitioner chose to use the cost-plus method as its preferred TPM for the Island plants’ transfer of breaker products to CHI. Part of the Island plants’ breaker product manufacturing process included manufacturing and assembling electrical distribution and control equipment. The general manufacturing for the Island plants’ products involved processes that formed, manipulated and/or assembled plastics and metals. These activities were generally routine activities that were undertaken by many independent companies. Petitioner concluded that the availability of financial information for companies comparable to the Island plants’ operations allowed for the use of the cost-plus method. According to petitioner the cost-plus method treated the Island plants as the controlled party whose profitability was tested. b. Proposed TPM Provided to the 1994-97 Audit Team During the course of the 1994-97 audit petitioner proposed using the CUP method for determining the level of profitability associated with the breaker products manufactured in the Island plants and met with the IRS audit team to discuss its proposal on January 17, 2001. Petitioner believed the CUP method was better than the cost-plus method that it had used previously. The IRS audit team was not familiar with petitioner’s proposed model. They wanted the controlled and uncontrolled transactions to involve identical products that were compared on -36- [*36] an individual basis rather than by groups of similar products. They also wanted relevant uncontrolled sales for purposes of a CUP method to be limited to sales to OEMs, rather than the combined sales to OEMs and U.S. distributors. To address concerns raised about the CUP method petitioner provided the audit team with a study on the CUP method dated March 19, 2001. Some of petitioner’s breaker products that were produced by the Island plants were sold to EEI and some were integrated into other assembled products. Other breaker products were sold to unrelated third-party OEMs. Petitioner’s proposal contemplated using an income stream from products the Island plants sold to third- party OEMs as the income CHI would have earned on the Island plants’ components that it integrated into its assembled products. To determine an income stream petitioner’s CUP method developed a constructed income statement that was generated using CUPs it discovered and assumptions regarding the allocation of costs. This constructed income statement differed from the mirror ledgers. It was not an actual part of EEI’s accounting system. The income stream and a comparable profits method (CPM) would then be used to determine whether the distribution profit was reasonable. In its 2001 CUP method study petitioner took steps to make the CUP method more precise, including using both catalog and style (or part) numbers to -37- [*37] more precisely match controlled and uncontrolled sales of the same product, identifying 29 product groups of common products, and identifying sales specifically to third-party OEMs, rather than all third parties. Petitioner provided the audit team with an extract from its VISTA database identifying the 29 product groups, the product codes within each group, and the standard costs for each product sold to different categories of third parties in the United States, and a sample extract of raw VISTA data that was used for application of the CUP method. As part of the information about the CUP method proposal, petitioner showed the audit team the mirror ledgers that recorded losses in their book income line. 3. Information Shared a. Mirror Ledgers As part of the 1994-97 audit, the audit team requested that petitioner explain the losses reported on the CHPR U.S. mirror ledgers. On October 31, 2000, petitioner provided a written explanation to the audit team. Petitioner explained that: (1) the losses occurred because the arm’s-length price paid to the Island plants for breaker products as reflected on the mirror ledgers was higher than the amount recorded on the mirror ledgers as revenue from U.S. assembly based on CHI’s internal management price; (2) the mirror ledgers were just a few of CHI’s -38- [*38] hundreds of ledgers, all of which must be combined--with intracompany transfers eliminated--to determine the overall financial results of CHI; and (3) the profits and losses on the mirror ledgers were unrelated to the economics of arm’s- length sales because a substantial portion of the revenue recorded on the mirror ledgers was calculated on the basis of the internal management price. b. U.S. Assembly and Breaker Products Petitioner’s October 31, 2000, response regarding its mirror ledgers addressed the relationship between U.S. assembly and breaker products. This response indicated that profit or loss generated by the assembly activities could not control the price paid to the component plants. This response explained that CHI’s ability to sell its assembly products at a high profit would not justify the Island plants’ charging an above-market price for its components, and likewise, U.S. assembly’s inability to be profitable due to inefficiencies or market factors would not justify paying CHPR a below-market price for the components it manufactures. On June 2, 2000, respondent issued a Form 4564, Internal Revenue Service Information Document Request (IDR), to petitioner requesting an explanation of the relationship between U.S. assembly and breaker products. In June 2000 petitioner provided the audit team with a written response explaining why it -39- [*39] believed the price paid by CHI to CHPR for breaker products was not overstated. Petitioner’s response explained that total U.S. sales were important for both the CUP and the profit-split analysis. Petitioner’s response further explained that the suggestion that OEM sales were the most relevant comparable did not reflect the fact that its electrical business is an integrated business. This response explained that a substantial portion of CHI’s distributor sales were directly related to sales of components it previously made to OEMs and sales of customized electrical assemblies that it previously made to unrelated third parties. The response explained further that because of the nature and life cycle of assembled products, third-party purchasers regularly purchased the Island plants’ products for customized electrical assemblies from unrelated distributors. The response included a letter from petitioner’s outside economic consultant which described the many ways in which the distributor products are analogous to blades and the sales to related or unrelated OEMs are analogous to razors. Upon further review petitioner’s outside economist discovered that his description of the relationship between U.S. assembly and the breaker products was inaccurate. Clarification of this inaccurate description was included in a letter to the APA II team leader on April 21, 2006. This letter explained that there were no volume replacements for breaker products because of a failure rate of less than -40- [*40] 2%. It explained further that the theory of an installed base is the classic razor and blade situation in which a manufacturer sells only razors that can be used only with its brand of replacements. Under this theory the blades can be sold at a higher price, covering the low profitability on the razors. This response explained that a profitable replacement market required the product compared to the blade to be replaced frequently, which was not the case for breaker products. IV. The APAs On November 14, 2003, petitioner and respondent reached an agreement on the terms of petitioner’s first APA, which covered petitioner’s 2001-05 tax years. APA I was executed on April 14, 2004. On June 23, 2005, petitioner submitted its application for the renewal of APA I (APA II), which covered petitioner’s 2006-10 tax years. APA II was executed on December 20, 2006. A. Covered Transactions Petitioner’s APA I applied to three covered transactions: (1) breaker product transfers from CHPR/EEPR6 to CHI/EEI, (2) CHI/EEI’s license of intangible property to CHC, and (3) CHPR/EEPR’s cost sharing payments to CHI/EEI. APA II applied only to CHC’s and CHEC’s sale of breaker products to EEI. 6 We use CHPR/EEPR because in 2003 CHPR changed its name to EEPR. -41- [*41] CHI/EEI U.S. distribution purchased breaker products from the Island plants and either resold those products to unrelated U.S. and foreign parties, or transferred the breaker products to affiliated U.S. assembly plants and foreign subsidiaries. During 2005 and 2006 EEI U.S. distribution purchased 100% of the Island plants’ manufactured breaker products. CHI/EEI licensed intangible property to the Island plants, which the Island plants used to manufacture breaker products, pursuant to two licensing agreements. Under the licensing agreements, CHI/EEI licensed approximately 800 patents related to the breaker products. The patents related primarily to modifications of existing technologies and breaker products. There was a cost sharing arrangement between CHPR/EEPR and CHI/EEI that covered research and development expenses. B. APA I: 2001-05 Tax Years 1. Participants The APA I team’s participants in the APA I negotiations (APA I team) included personnel from both the APA Program office and respondent’s exam team. The participants from the APA Program office included the APA I team leader and several APA economists. The participants from the exam team included three members of the 1994-97 audit team, including the 1994-97 audit -42- [*42] team’s international exam manager. Although not employees of the APA Program office,7 the exam team members constitute a portion of an APA team and assist throughout the entire APA process, including negotiations with the taxpayer. In general the role the exam team plays in the APA process is to support the APA team by providing background information regarding the taxpayer and performing needed calculations. An APA team leader coordinates several team members for the APA negotiations and initiates the APA application process. The APA team leader communicates with the taxpayer’s representatives to coordinate logistics, including scheduling meetings. Before an initial meeting is conducted with the taxpayer, a team leader will generally collect thoughts regarding questions that should be asked of the taxpayer. The team leader is responsible for drafting the APA, as well as drafting a memorandum to the Associate Chief Counsel (International) explaining the reasons for accepting an APA. Before working in the APA Program office, the APA I team leader was a member in the office of the Associate Chief Counsel (International). In 2001 or 2002 she started in the APA Program office and worked there until moving back 7 The exam team members generally come from the IRS field organization. See Announcement 2006-22, 2006-1 C.B. 779, 780. -43- [*43] to the office of the Associate Chief Counsel (Tax Exempt and Government Entities) in 2005. The APA I team leader worked as a team leader on several APAs during her time in the APA Program office. Petitioner’s primary participants in the APA I negotiations were its senior vice president of tax and its vice president of Federal tax strategy. Petitioner’s outside representatives in the APA I negotiations included employees of PricewaterhouseCoopers, LLP (PwC), and KPMG, LLP, including two economists and two attorneys. The PwC employees included a former Director of the APA program and a former employee of the U.S. Department of the Treasury on international tax matters, who later became head of transfer pricing at the Organization for Economic Co-operation and Development (OECD) in Paris, France. 2. APA Negotiations The APA I request began with a prefiling conference, and the total APA I process lasted 18 months. a. Prefiling Meeting Before making any commitment or filing a formal application, a taxpayer may, through a prefiling conference, approach the APA Program to discuss its preliminary views of the taxpayer’s potential APA request, including whether an -44- [*44] APA would be appropriate under the facts, what types of information would be necessary to support the request, and whether the taxpayer’s proposed TPM would be acceptable. See Announcement 2000-35, 2000-1 C.B. 924. The first APA negotiations between petitioner and respondent began in the middle of 2002, and on May 8, 2002, petitioner and the APA I team had a prefiling meeting to discuss petitioner’s anticipated APA I application. During this meeting petitioner described the scope of CHI/EEI’s business, including its various operating divisions for both components and assembled products, as well as its customer base. The APA I team indicated that if the CUP method were to be used, the uncontrolled transactions would have to be limited to the sales to OEMs, rather than sales to OEMs and distributors. The APA I team’s concerns were similar to those expressed by the 1994-97 audit team. b. APA I Team’s Questions Before petitioner formally submitted its APA I application, an APA I team economist asked petitioner’s economist about inputs that the Island plants purchased from CHI/EEI, referred to as the southbound transactions. Petitioner’s economist communicated to the APA I team that out of the Island plants’ $300 million COGS, approximately $8 to $10 million related to materials purchased from CHI/EEI. -45- [*45] c. APA I Application Submission On August 22, 2002, petitioner submitted its formal application for an APA. Petitioner’s APA I application responded to issues related to product comparability, which echoed the issues that the 1994-97 audit team raised. This application explained that most sales to distributors involved large, well- established distribution companies. These companies offered broad lines of products and had developed complete distribution networks in the United States. In its APA I application petitioner explained that CHI/EEI also manufactured and distributed other electrical component products, but these functions, risks, and assets were unrelated to CHI/EEI’s intercompany transactions involving the Island plants. i. Proposed APA I TPMs Petitioner’s APA I application included proposed TPMs for the covered transactions. (1). Transfer of Tangible Property CHI/EEI U.S. distribution purchased breaker products from the Island plants that were either sold to unrelated U.S. and foreign parties or transferred to affiliated U.S. assembly plants and foreign subsidiaries. Petitioner’s proposed arm’s-length price that CHI/EEI paid the Island plants for breaker products -46- [*46] derived from a combination of the CUP and CPM methods. According to petitioner the CUP and CPM methods were the best methods to evaluate the arm’s-length nature of prices paid by CHI/EEI to CHPR/EEPR because of the availability and abundance of reliable unrelated transaction data. Petitioner’s proposed method combined the use of the CUP and CPM methods to determine the revenues of CHI/EEI on the basis of prices paid by unrelated parties, and compared CHI/EEI’s resulting income with the income that CHI/EEI would have received, on the basis of a Berry ratio--gross profit as a percentage of operating expenses--which was determined using independent distributors. Petitioner used a three-step process to test whether the prices CHI/EEI U.S. distribution paid to CHPR/EEPR for breaker products were arm’s length. The first step was to identify third-party prices and revenues CHI/EEI U.S. distribution earned on sales of breaker products to unrelated U.S. parties. On the basis of prices paid by unrelated U.S. OEM customers, third-party equivalent arm’s-length revenues for CHI/EEI U.S. distribution’s transfer of products to U.S. affiliated manufacturing plants were constructed using a CUP method. The second step was to create a constructed income statement for CHI/EEI’s distribution activities using: (1) third-party sales revenues, (2) the third-party equivalent intercompany sales revenues calculated in the first step, (3) CHI/EEI’s actual revenue from -47- [*47] international sales of CHPR/EEPR products, (4) the transfer prices paid by CHI/EEI to CHPR/EEPR, and (5) the selling, general and administrative (SG&A) expenses incurred by CHI/EEI in its distribution of CHPR/EEPR products. The third step was to calculate CHI/EEI’s Berry ratio from the data in the constructed income statement created in the second step and compare it to an arm’s-length range of Berry ratios established by reference to a sample of comparable independent distributors. (2). License of Intangible Property To establish an appropriate royalty rate between CHI/EEI and CHC, the comparable uncontrolled transaction (CUT) method was applied. On December 1, 2001, CHI/EEI and CHC amended the license agreement to cover additional products. The amended license provided that effective January 2, 2002, CHC would pay CHI/EEI a royalty of 6.45% of CHC’s net sales of the licensed breaker products. In its APA I application submission, petitioner explained that it checked the reasonableness of the results of the CUT method with the research and development (R&D) cost capitalization method to establish the arm’s-length royalty rates for manufacturing intangibles in its electrical industry. The CUT method analysis yielded a royalty rate range between 3.6% and 6.0%. The R&D -48- [*48] cost-capitalization method, however, resulted in a royalty rate of 6.9%. To reconcile the different results, petitioner averaged the upper quartile CUT method result (6%) with the royalty rate established by the R&D cost-capitalization method (6.9%), yielding a royalty rate of 6.45%. (3). Cost-Sharing Methodology There was a cost sharing arrangement between CHI/EEI and CHPR/EEPR. The determination of the appropriate allocation of R&D costs between CHPR/EEPR and CHI/EEI was in accordance with regulations under section 936. See secs. 1.936-6 and 1.936-7, Income Tax Regs. Pursuant to regulations under section 936(h)(5)(C)(I), CHPR/EEPR made a cost-sharing payment to CHI/EEI based on the product area research expenses incurred by both parties and certain related affiliates. Id. ii. Information Petitioner Provided With Its APA I Application Submission Petitioner provided the APA I team with a CD-ROM containing the data, including VISTA data, used to derive third-party equivalent pricing for the exact catalog number matching revenues. Petitioner also provided a data set referred to as a VISTA extract, or the IRS report. The primary source of VISTA data for the IRS report was the MRSB report, which provided certain annual sales and -49- [*49] cost data. Petitioner cataloged and permanently maintained each year’s MRSB report. The IRS reports contained approximately 22,000 line items that summarized sales and cost data for breaker and control products used in computing the APA I TPM. Petitioner’s IRS report provided the transaction pricing data for CHI/EEI third-party sales of each breaker product, including manufacturing costs, net extended sale prices, and quantity sold. These reports contained the intercompany quantity sold. Petitioner explained in its APA I application that for purposes of determining the SG&A expenses related to sales of the breaker products, petitioner used the expense allocation methodology CHI used for management reporting purposes. Petitioner included an income statement showing CHI net income with respect to the breaker products from 1998-2001. On September 16, 2002, petitioner provided the APA I team with an amended income statement, which reflected finalized financial data for 2001 that had not been available at the time petitioner submitted its APA I application. The income statement was constructed to show that CHI net income related solely to the purchase and distribution of breaker products to both third parties and internal assembly plants. -50- [*50] Petitioner’s APA submission explained that most of the sales of the Lincoln plant to the Island plants were made to distributors and were treated as distributor sales for the analysis of determining the TPM. It further explained that a small share of the Lincoln sales was made directly to unrelated OEMs. The submission noted that the Lincoln plant did not modify or physically alter the Island plants’ manufactured breaker products in any way. d. APA I Team’s Due Diligence Questions As part of its APA I application due diligence, the APA I team requested access to petitioner’s VISTA database and asked a series of followup questions. The APA I team’s questions covered several areas, including: the intellectual property license agreement between CHI/EEI and CHC; the sales functions and rebate procedures of CHI/EEI; sales to OEMs; CHI/EEI’s allocation of SG&A expenses; the information, data and documents petitioner used in its 2001 CUP study; the VISTA database; the profit split between CHI/EEI and the Island plants; CHI/EEI’s income statement data; and CHI/EEI’s international sales. Petitioner provided responses to all of the APA I team’s due diligence questions on December 13, 2002. The formal due diligence process lasted about 13 months. -51- [*51] i. VISTA Response Petitioner provided the APA I team with a disk containing VISTA database information in text file format relied upon for the analysis presented in its APA I application submission. Petitioner provided a large extract of the VISTA database that was in the same format that petitioner and the APA I team reviewed together during several meetings they held regarding VISTA. In response to the APA I team’s request for a data dictionary for VISTA, petitioner provided a description of each VISTA billing wire column heading. The data dictionary includes the names and descriptions of various files and their contents plus additional details, such as the type of format and length of each data element. The billing wire is a program that records individual sales transactions for Eaton’s domestic plants. Petitioner explained that a team of forensic technology solution experts reviewed the data for accuracy. ii. Profit Split Response Petitioner provided the APA I team with financial information that allowed the APA I team to compare the relative amount of profit split between CHI/EEI and the Island plants under the proposed TPM. The response broke down CHI/EEI’s total overall business unit operating profits for 1998-2001 into three categories: (1) the Island plants’ income; (2) CHI/EEI’s income from distribution -52- [*52] of the Island plants’ products; and (3) other consolidated industrial and commercial controls operating income, including income derived from the manufacture of components outside Puerto Rico, the manufacture of assemblies, and sales and distribution activities other than those specifically related to the Island plants’ products. This response showed that the Island plants had the greatest portion of operating profit in each year under both petitioner’s old TPM and its proposed TPM, and that “other” operations, including U.S. assembly, incurred either losses or substantially lower operating profit relative to the Island plants each year. The response explained that the publicly reported financials for its electrical business segment included the results of U.S. and foreign operations relating to the manufacture, assembly, sale, and distribution of industrial and commercial control products. Petitioner further explained that the financial performance of the business activities in the “other” category, including U.S. assembly’s activities, was independent from the financial performance of the breaker products manufactured in the Island plants and should not be aggregated with the Island plants’ breaker products. The response noted that applying a profit split analysis in lieu of a proposed CUP method would result in a failure to reflect the excess costs that -53- [*53] petitioner was aggressively seeking to eliminate in its non-Island plant operations. Petitioner provided a similar explanation to the 1994-97 audit team. In March 2003 the APA I team prepared a spreadsheet analyzing the profit split that resulted from petitioner’s proposed TPM for its APA I application. The APA I team’s analysis showed that over 80% of the profits were allocated to the Island plants. Some exam team members of the APA I team contended that the Island plants should be treated as the tested party. The APA I team’s international exam manager, who was also the 1994-97 audit team’s international exam manager, was not convinced that petitioner’s proposed TPM was the “best method”. In July 2003 the APA I team conveyed to petitioner that it wanted to focus on treating the Island plants--rather than CHI/EEI U.S. distribution--as the tested party, because the proposed TPM profit split resulted in the Island plants’ having significant profits and small profits or losses in the United States. The APA I team further reported to petitioner that it did not believe that the proposed TPM sufficiently compensated CHI/EEI for the risks it assumed as distributor. iii. Volume Discounts Response Petitioner addressed volume discounts in its response to the APA I team’s due diligence questions about rebates, discounts, and deductions granted to petitioner’s customers. The response explained that CHI/EEI granted cash -54- [*54] discounts to all customers, whether they were OEMs or distributors, if those customers paid for petitioner’s products within a specified time. CHI/EEI also granted specified and limited quantity discounts to distributors that purchased a specified volume of products. The response explained that determining the exact amount of cash and quantity discounts granted to each customer was difficult because the discounts were either aggregated in the VISTA database with other deductions or were recorded manually and separate from the VISTA database. The response noted that the CUP analysis presented in its APA I submission took into account all rebates, discounts, and deductions granted to all customers, whether they were entered into VISTA or separately from VISTA, by subtracting the rebate and aggregated deductions from the gross sale price to reach a net sale price. During a January 15, 2003, meeting between petitioner’s advisers and the APA I team, petitioner’s advisers explained that no volume-based adjustments were necessary to ensure the reliability of petitioner’s CUP method, even where there were differences in volume between uncontrolled and controlled sales. On February 14, 2003, petitioner sent the APA I team a letter following up on its discussion at the January 15, 2003, meeting. The letter explained that even if there were a theoretical basis to apply a volume-based discount when comparing -55- [*55] CHI/EEI purchases to those of small companies, there was no justification for an arbitrary assumption that CHPR/EEPR would extend a larger discount to global corporations merely because a global corporation had sophisticated purchasing organizations that purchased a large volume of products. More than 70% of CHPR/EEPR’s OEM sales came from customers that purchased more than $500,000 worth of product in 2001. The response noted that these customers had sufficient bargaining power to ensure that they were obtaining prices comparable to the price that CHI/EEI would pay the Island plants for similar products. The response further explained that no bottom line prices existed for CHI/EEI products. In some cases if a customer demanded a significant discount, petitioner’s sales personnel could discuss the transaction with product line managers for approval, but prices were generally negotiated on a case-by-case basis. iv. SG&A Expense Allocations The APA I team inquired about how CHI/EEI allocated SG&A expenses.8 On December 13, 2002, petitioner provided an explanation and a diagram of how 8 APA I defined SG&A expenses as “[o]perating costs within the meaning of treasury regulation sec. 1.482-5(d)(3), specifically including depreciation and excluding any interest expense, Product Area Research Expenses, and any items characterized as extraordinary for financial statement purposes.” SG&A expenses are also referred to as breaker product operating expenses. -56- [*56] it allocated SG&A expenses. Petitioner’s explanation noted that SG&A expense allocations followed its longstanding business practices and were not affected by tax considerations. The SG&A expense allocation process began with three corporate cost centers located in Pittsburgh, Pennsylvania: Global Sales & Solutions, Supply Chain, and Cutler-Hammer Group. Each cost center allocated its expenses to three business units: (1) Power Control Systems Operations, (2) Electrical Distribution Products Operations, or (3) CH Engineered Services and Systems. The methodology used to distribute these expenses allocated field sales expenses on the basis of U.S. third-party sales and the remainder of the expenses on direct effort (individuals directed to a specific business unit). This explanation identified the highest level of corporate expenses in the SG&A expense allocation as coming from CHI’s division headquarters. Petitioner further discussed its response with a presentation about SG&A expense allocations at a January 15, 2003, meeting with the APA I team. v. Other Business Operations The APA I team inquired about CHI/EEI’s “other” business operations during 1998-2001. Specifically, the APA I team asked petitioner to explain an apparent inconsistency between CHI/EEI’s income statement and the consolidated data for petitioner’s Industrial and Commercial Controls Division. Petitioner’s -57- [*57] response, dated December 13, 2002, provided the APA I team with financial information that segregated the consolidated line of business income data into three categories: (1) CHPR/EEPR income; (2) CHI/EEI income from distribution of CHPR/EEPR products; and (3) “other” consolidated industrial and commercial controls operating income. Petitioner’s response explained that the “other” category, which incurred small losses in 1998 and 1999 but positive profits in 2000 and 2001, included income derived from the manufacture of components outside of Puerto Rico, the manufacture of assemblies, and sales and distribution activities other than those specifically related to CHPR/EEPR products. Petitioner explained that the gradual improvement of results in the “other” category, with positive profits generated during difficult economic periods in late 2000 and 2001, reflected petitioner’s efforts to reduce inefficiency and excess capacity in that part of its operations outside of Puerto Rico. Petitioner further noted that not using its proposed CUP method would fail to reflect the excess costs that petitioner was aggressively seeking, with some success, to eliminate in its non-Puerto Rico operations. vi. Markup Analysis In January 2003 the APA I team’s economist prepared an analysis of the markup on the manufacturing costs the Island plants would receive under -58- [*58] petitioner’s proposed TPM. His analysis compared the markups the Island plants received on sales to unrelated OEMs, affiliated assembly plants, and unrelated distributors. Petitioner updated and completed the markup analysis that the APA I team’s economist started and provided a final analysis on February 14, 2003. In petitioner’s markup analysis, 1998-2000 reflected the results of the historical TPM, and 2001 reflected the proposed TPM for its APA I application. Petitioner’s analysis showed that its proposed TPM resulted in a markup on the Island plants’ costs of over 70% in 2001, whereas the historical TPM resulted in markups ranging from 51% to 52.8%. Petitioner further explained as part of the markup analysis that the transfer price reported on its 1998-2001 tax returns differed somewhat from the transfer price derived from the VISTA data because of timing differences between the VISTA data (record of when product is sold by CHI/EEI) and the general ledgers (record dated when product sold by Island plants to CHI/EEI). Petitioner’s economists explained the timing difference in an email to the APA I team’s economist. An APA I team economist requested an explanation on how the VISTA data was used in conjunction with petitioner’s markup analysis. Petitioner provided a -59- [*59] memorandum detailing how the VISTA data provided to the APA I team was used for the CUP method computations and the markup analysis. The memorandum explained numerous formulas and calculations used in the CUP method computations and identified how specific columns of data that had been provided to the APA I team were used in these computations. After receiving petitioner’s markup analysis and additional explanation, the APA I team’s economist prepared a summary on his markup analysis. He recognized twice in his summary that the Island plants’ weighted average markup on sales to petitioner’s assembly plants under the CUP method was higher than the weighted average markup for sales to third-party OEMs. His summary stated that “[t]he difference between weighted averages is simply due to different product mixes.” His summary further stated that “[t]his analysis demonstrates convincingly that the CUP * * * [method] proposed by the taxpayer is an appropriate TPM in this case.” vii. Berry Ratio Negotiation The APA submission proposed a TPM for the transfer of tangible property using a Berry ratio as part of its calculations. The Berry ratio represented CHI/EEI’s gross profit from sales of breaker products divided by breaker product operating expenses (SG&A). -60- [*60] In June 2003 the APA I team informed petitioner that it wanted a more detailed description of how petitioner computed SG&A. The APA I team explained to petitioner that it was considering a formulary SG&A expense minimum requirement. In July 2003 petitioner became concerned that some members of the APA I team wanted to focus their attention on treating the Island plants, rather than EEI U.S. distribution, as the tested party because the profit split that resulted from petitioner’s proposed TPM allocated significant profits to the Island plants and small profits to the United States. One APA I team analysis showed that 80% of the profits were allocated to the Island plants. The APA I team leader set a deadline of September 30, 2003, for the APA I team to either complete its analysis of petitioner’s APA application and provide an alternative TPM that did not use CHPR as the tested party or an arbitrary profit split methodology, or have petitioner accept the conclusion of the APA Program office. Petitioner learned that some exam team members of the APA I team believed that petitioner’s proposed TPM did not sufficiently compensate EEI for the risks it assumed as a distributor. In October 2003 representatives of the APA I team thought that a Berry ratio of 1.13 might be sufficient, on the basis of work being done by the APA I -61- [*61] team’s economist. A Berry ratio of 1.13 means that gross profit divided by operating expenses equals 1.13, or the operating profit equals 13% of operating expenses. At that time petitioner was proposing a Berry ratio of 1.18. In November 2003 the APA I team informed petitioner that it sought to increase the operating profit for EEI’s distribution function in order to reach an agreement on petitioner’s proposed TPM. The APA I team proposed increasing the Berry ratio to a range of 1.20 to 1.27, which had the effect of increasing the operating profit for EEI’s distribution functions. The final agreement included a range of 1.20 to 1.27. viii. Petitioner’s Concessions In addition to agreeing to a higher Berry ratio, petitioner made several concessions during the APA I process. Petitioner agreed to use third-party OEM prices to set the revenue in the CUP method instead of a blended price of third- party OEM and third-party distributor prices. Petitioner abandoned a cost-sharing arrangement for CHI/EEI’s technology and continued to maintain intangibles in the United States. Petitioner agreed to include stock options for purposes of calculating CHPR/EEPR’s cost-sharing payments. -62- [*62] 3. APA I Terms On November 14, 2003, petitioner and the APA I team reached an agreement on the terms of APA I for petitioner’s tax years 2001-05 effective on April 14, 2004. APA I applied to the covered transactions in petitioner’s APA I submission. Rev. Proc. 96-53, 1996-2 C.B. 375, governs the interpretation, legal effect, and administration of APA I. a. TPM and Berry Ratio for Breaker Product Transfer APA I defined breaker product transfer as CHI/EEI’s purchase of breaker products from CHPR/EEPR for distribution to affiliated U.S. assembly plants, third-party U.S. OEM customers, and other related and third-party customers. The TPM for CHPR/EEPR’s transfer of breaker products to CHI/EEI was a two-step method. In the first step CHI/EEI would apply the CUP method to determine its constructed intercompany revenue. Then it would create a constructed income statement, similar to petitioner’s explanation in its proposed TPM, for its distribution of breaker products based on the following: (1) U.S. third-party sales revenue, (2) constructed intercompany revenue, (3) international sales revenue, (4) cost of sales, and (5) breaker product operating expenses. APA I defined U.S. third-party sales revenue as CHI/EEI revenue from the sale of breaker products -63- [*63] acquired from CHPR/EEPR and CHC and sold without incorporation into other products to third-party customers in the United States. APA I defined constructed intercompany revenue as the following: For each APA year, the sum of the following three amounts: (1) For Breaker Products with an Exact Catalog Number Match, the average per unit OEM Sales Price for such a product multiplied by the number of units transferred by CHI to Affiliated U.S. Assembly Plants. (2) For Breaker Products without an Exact Catalog Number Match but within a given Product Category, the average OEM Sales Price Markup for the Product Category multiplied by CH-Puerto Rico’s manufacturing costs of such products within the Product Category transferred by CHI to Affiliated U.S. Assembly Plants. (3) For any other products, the average OEM Sales Price Markup for all Product Categories multiplied by CH-Puerto Rico’s manufacturing costs of such products transferred by CHI to Affiliated U.S. Assembly Plants. In the second step the CPM would be applied to test CHI/EEI’s constructed income statement using a Berry ratio as the profit level indicator. CHI/EEI was required to achieve a Berry ratio between 1.20 and 1.27 for its distribution of breaker products, and the ratio of SG&A expenses to CHI/EEI’s sales revenue for breaker products was to meet or exceed 13% for each APA year. For each APA year, if CHI/EEI’s yearend Berry ratio was not in compliance with the TPM, APA I required CHI/EEI to make an adjustment to the purchase -64- [*64] price of the breaker products acquired from the Island plants that would bring CHI/EEI’s Berry ratio within the range of 1.20 to 1.27. Once this occurred, the covered transaction would be considered to be in compliance with section 482 and would not be adjusted further by respondent. The APA defined the breaker product Berry ratio as CHI/EEI’s gross profit from sales of breaker products divided by its breaker product operating expenses, which had the same meaning as SG&A expenses. b. SG&A Expenses APA I set a floor for the amount of SG&A expenses allocated to EEI’s distribution function equal to 13%, which acted as a floor for EEI’s distribution function’s profit level. “SG&A expenses” was a metric used to calculate the Berry ratio. Higher SG&A expenses resulted in higher profit that would be allocated to EEI under the Berry ratio. If the ratio of SG&A to CHI/EEI’s sales revenue for breaker products was below 13% or greater than 20% for each APA year, APA I required petitioner to adjust SG&A so that ratio was between 13% and 20%. Once this occurred the ratio would be considered to be in compliance with section 482 and would not be adjusted further by respondent. -65- [*65] c. APA I TPMs for Intangibles Transfer and Cost-Sharing Payment Before APA I CHI/EEI entered into a license agreement, effective December 29, 2000, in which CHI/EEI granted a nonexclusive license to use, including the right to sublicense, a broad class of intangible property that CHC used to manufacture and assemble breaker products. In exchange for the license CHC agreed to pay CHI/EEI a royalty of 4% of CHC’s net sales for the licensed breaker products. APA I required CHC to pay CHI/EEI a royalty payment of 6.45% of CHC’s sales revenue, which was consistent with the royalty rate in the amended CHI/EEI and CHC license agreement that was in effect. The TPM for CHPR/EEPR’s cost- sharing payment was the section 936 cost-sharing method. d. Compliance APA I provided generally: a. For each APA Year, if * * * [petitioner] complies with the terms and conditions of this APA, then the IRS will not make or propose any allocation or adjustment under I.R.C. section 482 to the Covered Transactions. b. If * * * [petitioner] does not comply, then the IRS may: 1. enforce the terms and conditions of this APA and make or propose allocations or adjustments under I.R.C. section 482 consistent with this APA; -66- [*66] 2. cancel or revoke this APA under Revenue Procedure 96-53, section 11.05 or 11.06; or 3. revise this APA, if the Parties agree. APA I required petitioner to file an annual report for each APA year (APA annual report) in accordance with the APA and Rev. Proc. 96-53, sec. 11.01, 1996-2 C.B. at 383. APA annual reports for 2003-05 were due no later than 90 days after the time prescribed by law (including extensions) for filing petitioner’s Federal income tax return for the year covered by the report. Petitioner’s 2005 annual report was due on December 15, 2006. APA I also required an independent certified public accountant to render an opinion that petitioner’s financial statements presented fairly, in all material respects, petitioner’s financial position under U.S. GAAP. Under the terms of APA I the IRS would review petitioner’s compliance with the APA using its U.S. tax returns, financial statements, and other APA records, for the APA term and any other year necessary to verify compliance. If petitioner’s actual transactions did not result in compliance with the TPM, petitioner was required to report its taxable income in an amount that was consistent with the TPM and all other requirements of the APA on its timely filed U.S. tax return. -67- [*67] APA I required petitioner to maintain its APA records in accordance with Rev. Proc. 96-53, sec. 11.04, 1996-2 C.B. at 384, and make them available to the IRS in connection with an examination under Rev. Proc. 96-53, sec. 11.03, 1996-2 C.B. at 384. APA I provided that compliance with the record maintenance requirement constituted compliance with the record maintenance provisions of sections 6038A and 6038C for the covered transactions for any taxable year during the APA term. e. Materiality For APA I the terms “material” and “materially” were to be interpreted consistently with the definition of material facts in Rev. Proc. 96-53, sec. 11.05(1), 1996-2 C.B. at 385. f. Critical Assumptions The critical assumptions of APA I were the following: 1. The business activities and financial and tax accounting methods and classifications of * * * [petitioner] in relation to the Covered Transactions will remain materially the same as described or used in * * * [petitioner’s] APA Request. A mere change in business results will not be deemed a material change. 2. The terms of * * * [APA I] shall not be negatively affected by acts of God, fire, flood, strikes, labor troubles or other industrial disturbances, acts of Government laws and regulations, riots, insurrections, or any other cause beyond the control of the parties to the APA. -68- [*68] 3. CHC’s projected and actual sales revenue and CHI’s projected and actual research and development costs will remain within 20 percent of the amounts set forth in Exhibit 1 to * * * [APA I]. In the event that CHC’s actual sales revenue and CHI’s actual research and development costs are greater than 120 percent or less than 80 percent of the amounts set forth in Exhibit 1 to * * * [APA I], the royalty will be recalculated to comport with the revised amounts in a manner consistent with the methodology presented in Exhibit 1. 4. CHPR will continue to qualify as a possessions corporation pursuant to I.R.C. section 936 and will continue to make the required cost-sharing payment through the term of the APA. 5. Any transfer of ownership of intangibles from CHPR to CHC is outside the scope of this APA. If such a transfer of ownership should occur, the transfer of manufactured products to CHI related to the use of such intangibles will not be covered by this APA. 4. APA I Implementation a. Canadian Adjustment In its 2001 and 2002 APA annual reports petitioner included an item labeled “Canadian Adjustment--Eaton Yale” as an increase to revenue from international sales in the TPM calculation table. Eaton Yale Ltd. (Eaton Yale) was Eaton’s Canadian affiliate, a Canada corporation and wholly owned subsidiary of Eaton. On November 4, 2004, the IRS sent petitioner an IDR regarding an adjustment that was not included in the original APA, the Canadian Adjustment--Eaton Yale. Petitioner responded on December 1, 2004. This response explained that EEPR -69- [*69] sold its entire output of breaker products to EEI. EEI either resold the EEPR-produced breaker products to U.S. and foreign unrelated parties or transferred the breaker products to affiliated Eaton Electrical U.S. assembly plants or foreign subsidiaries of Eaton Electric. Eaton Yale was among the related parties to which EEI sold EEPR products. Eaton Yale purchased products from EEI for resale into the Canadian market or for incorporation into custom assemblies manufactured by Eaton Yale. This response explained that an increase in the sale price was needed in accordance with the APA I TPM. On May 4, 2005, respondent issued a notice of proposed adjustment related to the Canadian adjustment. The adjustment was for the same amounts included in APA I annual reports for 2001 and 2002. Petitioner agreed to the proposed adjustments for 2001 and 2002. The Canadian adjustment was discussed during the prefiling conference for APA II. The APA II submission mentioned the Canadian adjustment as a relevant issue under audit and that relief from double taxation could be needed. b. Disclosure of Book-Tax Difference and APA Multiplier On December 9, 2004, petitioner responded to an IDR issued by respondent’s exam team regarding the transfer price for the breaker products in the 2001 tax year. The IDR inquired about an adjustment made on Schedule M-1, -70- [*70] Reconciliation of Income (Loss), that appeared to be included in the annual report. The IDR requested an explanation of how the Schedule M-1 adjustment conformed to APA I. In its response petitioner explained that it had a book-tax difference with respect to the transfer price for breaker products, because its accounting books were closed at the end of 2001 using an estimated transfer price that was computed with the information available at that time. Petitioner’s tax returns, which were filed the following September 2002, reflected the finalized transfer price that was computed using final financial information that was not available until the first quarter after the close of 2001. Petitioner provided the detailed computations to show how the Schedule M-1 adjustment was computed and explained that the purpose of the adjustment was to adjust book income reported in Puerto Rico to the APA I TPM. Petitioner explained that its 2001 APA I annual report did not mention the Schedule M-1 adjustment because the adjustment conformed to the APA I TPM. As part of its response petitioner explained how the APA I multiplier was computed and applied. c. 2005 Tax Return On September 6, 2006, petitioner filed electronically its Form 1120, U.S. Corporation Income Tax Return, and Form 8453-C, U.S. Corporation Income Tax -71- [*71] Declaration for an IRS e-file Return, for its 2005 tax year. On its Form 1120, petitioner reported worldwide book income of $804,928,420. Petitioner removed income and loss, including intercompany eliminations, from nonincludible U.S. and foreign affiliates, subtracting a net income amount of $603,138,308 from its worldwide income. For U.S. tax purposes, petitioner reported net U.S. book income of $201,790,112. Petitioner filed Schedules M-1 and M-2, Reconciliation of Income (Loss) and Analysis of Unappropriated Retained Earnings per Books, and Schedule M-3, Net Income (Loss) Reconciliation for Corporations with Total Assets of $10 million or More. It reported book-to-tax adjustments of $38,681,828, resulting in taxable income of $240,471,940. The Schedules M adjustments reflected a timing difference between petitioner’s estimated APA I transfer price calculation at the end of the 2005 taxable year and its final transfer price calculation, which could not be determined until May 2006. Petitioner’s 2005 Schedules M attached to its tax return identified this difference. Petitioner did not include this adjustment in the 2005 APA I annual report because the adjustment conformed to the APA I TPM. -72- [*72] C. APA II: 2006-10 Tax Years 1. Participants The APA II team’s participants in the APA II negotiations included personnel from both the APA Program office and the exam team, commonly referred to as the field team. The participants from the APA Program office included the APA II team leader and an APA II team economist. The participants from the exam team included the team coordinator, a group international manager, two international examiners, a computer audit specialist, an attorney, and an economist. The APA II team was generally composed of personnel different from the APA I team. However, some exam team members from the APA I team, including the international examiner, the team coordinator, and an economist, were also exam team members for the APA II team. The APA I exam team economist acted as manager to the new economist assigned to the APA II team. There is no rule specifying whether a new team leader is assigned to an APA renewal request. Before joining respondent’s APA Program office the APA II team leader had held various positions in respondent’s National Office, working primarily with the corporate groups in the Office of Chief Counsel. In 1999 he joined respondent’s APA Program office as a team leader. In 2002 he moved to Branch 4 -73- [*73] of respondent’s international group in the Office of Chief Counsel. In 2004 he moved back to the APA Program office as a team leader, and in 2007 he was promoted to APA Program office branch chief. During his time in the APA Program office, the APA II team leader worked as a team leader for approximately 50 separate APAs. He rarely accepted the facts included in a taxpayer’s APA application at face value. In every APA that he worked on, he or some member of his team saw something that required the team to file additional questions about the facts presented in the taxpayer’s APA application. The major role of the team leader was to build consensus among the APA team by holding discussions and determining whether there were disagreements about the taxpayer’s APA application. The APA II team leader started a renewal APA application process by generally reviewing the initial APA request. He reviewed the initial APA submission, the resulting APA, and questions and answers that arose in the course of the initial APA negotiations. The APA II team leader reviewed petitioner’s APA I request file and some of its annual reports. Petitioner’s primary participants in the APA II negotiations were its senior vice president of tax and its vice president of Federal tax strategy. Petitioner’s outside representatives were mostly the same participants from the APA I -74- [*74] negotiations, including the former Director of the APA Program and principal at PwC, a PwC partner who as a former employee of the U.S. Department of the Treasury and later former head of transfer pricing at the OECD in Paris, France, two economists, and an attorney. 2. APA II Negotiations The APA II team conducted a de novo review of APA I. An APA renewal typically involves a completely independent review by a second APA team, including different team leaders and economists. a. Prefiling Process On January 26, 2005, petitioner sent the APA II team leader a letter before formally filing its APA II application. Petitioner’s prefiling letter provided background on its structure with a focus on breaker products, including EEI’s sale and transfer of CHC products. This letter explained that petitioner was not aware of any significant changes in facts of functionality of the original APA and that it would be using the previously agreed-upon TPMs in its APA renewal request. On February 2, 2005, petitioner and the APA II team held a prefiling conference. Petitioner presented a detailed overview of its six operating divisions. Petitioner further explained and illustrated EEI’s TPM calculation for the -75- [*75] distribution of breaker products for 2001-03 and the TPM for CHC’s license of intangibles from EEI for 2001-03. b. APA II Application On June 23, 2005, petitioner submitted its formal APA II application for the renewal of APA I. Petitioner’s APA II application requested renewal of TPMs for the following covered transactions: (1) the transfer of breaker products from CHC to EEI and (2) the amount of an arm’s-length royalty payment from CHC to EEI and EEPR for the right to use technology intangibles by CHC in its manufacturing processes.9 Petitioner noted that its reference to EEI throughout its APA renewal submission referred to EEI’s distribution of CHC products, not EEI as a diversified company. The APA II application provided detailed information on EEI’s electrical business, including EEI’s sale and transfer of CHC products from 2001-03. The application noted that most of the sales of CHC products made by the Lincoln plant were treated as distributor sales and not part of the CUP computations. The application explained that only a small number of the Lincoln sales were made directly to unrelated OEMs. It further explained that the breadth of product lines 9 The cost-sharing payment made by CHPR to CHI was not included in the APA renewal request because of the 2005 sunset of sec. 936. -76- [*76] and its ability to efficiently manufacture breaker products in high volume were important profit drivers in the industry. Petitioner’s APA II application included responses to two particular issues that the APA II team raised during the prefiling conference: (1) whether EEI had marketing intangibles with respect to the breaker products and (2) the effect of volume discounts on the CUP method. The APA II team had concerns about the marketing intangibles issue from the beginning of the APA II negotiations. Petitioner’s response explained that no valuable marketing intangibles existed with respect to EEI’s breaker products, primarily because these products were industrial, not consumer, products. The response detailed how the name change from CHI to EEI did not have a significant impact. The APA II team was concerned with whether petitioner’s assembled products created an installed base that was effectively a marketing intangible because it generated an aftermarket for sales of breaker products to be used in the assembled product. The APA II team’s concern focused on whether petitioner’s assembled products created potential future sales of breaker product components as a result of already having the products assembled and available in the market. Petitioner reiterated in its APA II application that any rebates or customer -77- [*77] discounts granted to unrelated OEM customers were factored into the CUP method analysis and therefore the CUP method accounts for volume discounts. c. APA II Team’s Due Diligence Questions The APA II team leader conducted a full due diligence investigation. The process consisted of hundreds of questions. After the submission of the APA II application and before a meeting with the APA II team, the APA II team leader sent petitioner, on September 16, 2005, a list of 28 questions, which included numerous multipart questions. The APA II team’s questions generally focused on petitioner’s transfer of tangible and intangible assets from EEI to the Island plants, the Island plants’ operating profits, the Island plants’ manufacturing process for breaker products and other high- volume products, EEI’s sales process and customer base, SG&A allocation methodology, and system profit for breaker products produced by the Island plants and sold to EEI. Additional questions were sent to petitioner on October 5, 2005. These questions focused on system profit and CHC intangibles. On January 31, 2006, petitioner responded to the APA II team’s due diligence questions. On February 16, 2006, petitioner and the APA II team held a meeting to discuss petitioner’s responses. On March 13, 2006, the APA II team leader sent petitioner an -78- [*78] additional set of questions that focused on issues discussed during the course of the February 16, 2006, meeting or arose afterwards as a result of information discussed during the meeting. This additional set of questions focused on whether EEI had any marketing intangibles with regard to its breaker products, EEI’s technology, the nature and importance of the Island plants’ manufacturing function, location savings in Puerto Rico, and the internal CUP for intracompany sales. i. Profit Split The APA II team asked about the profit split between the Island plants and EEI. They asked petitioner to explain the Island plants’ high operating margins in an industry which, petitioner stated in its APA II submission, faced strong competitive pressure. In its response petitioner explained why it did not agree with the characterization of the Island plants’ operating profits and margins as being extraordinarily high. Petitioner provided an analysis of the profitability of the Beaver facility, which manufactured breaker products. The analysis stated that the difference in profits between the Beaver facility and the Island plants reflected that the Island plants operated in a low-cost jurisdiction. Petitioner believed that this analysis confirmed the reliability of the CUP method in APA I. Petitioner’s -79- [*79] response stated that the profit-split analysis confirmed that in their business the bulk of profits was properly attributable to the manufacturers of the product and resulted from the manufacturer’s ability to produce a diverse number of styles of complex, highly regulated products at low cost, in high volume, and with absolute adherence to the exacting standards of product quality. The APA II team also asked for information about whether, in concert, the Island plants and EEI earned extraordinary intangible profits. The APA II team wanted a profit and loss statement showing the system profit (consolidating the operating profits of the Island plants and EEI) for the Island plants-produced breaker products sold to EEI, which EEI then sold to its customers and own domestic plants. This definition of system profit did not include sales from assembled products that EEI’s domestic plants manufactured, i.e., U.S. assembly sales to third-party customers. Petitioner’s response acknowledged that the “IRS exam team has expressed concern regarding the split of profit between the factory operations of CHC and the distribution operations of EEI under the CUP methodology.” To demonstrate that the Island plants received an appropriate level of profit under the APA I TPM, petitioner provided the APA II team with two separate confirming analyses. The scope of the relevant business activity used in both analyses was consistent and -80- [*80] included the Island plants’ manufacturing of breaker products and EEI’s sales of those breaker products to third parties and internal assembly plants. Other business activities, such as EEI’s assembly plants’ sales of assembled products, were not included in this analysis. The first analysis compared the gross profit margin on the sale of breaker products manufactured at the Beaver plant and the sale of breaker products manufactured at the Island plants’ facilities. The second analysis was an activity based profit-split analysis. Petitioner provided an actual system profit resulting from an application of the APA I TPM for 2004. This profit split yielded an allocation of 14.8% of profit to EEI and 85.2% to the Island plants. Other revenue and costs related to, for example, assembly plants’ sales of assembled products were not included in this analysis. ii. Installed Base Marketing Intangible As a followup to a meeting held on February 17, 2006, between petitioner and the APA II team, petitioner provided the APA II team with a letter, answering specific questions and addressing concerns that were raised at the meeting. The APA II team inquired whether petitioner had an installed customer base that constituted a marketing intangible for the sale of CHC products. Petitioner’s response explained that, if applicable at all, the installed base affects no more than 4% of EEI’s total sales of CHC breaker products. The letter further explained that -81- [*81] for there to be an installed base intangible, substantial aftermarket sales must exist. Petitioner explained that while EEI had some aftermarket sales, there were a large number of distributor sales that were initial sales to customers rather than aftermarket sales. It also explained that for there to be an installed base intangible, EEI would have to charge premium prices, and that many of these products were competitive products that limited EEI’s ability to charge higher prices for the aftermarket sales than for initial sales to customers. Its response further explained that if an installed base intangible was applicable at all, it would apply to less than 10% of distributor sales. Petitioner’s response stated: This must be the case because: (1) there is no volume replacement market for breaker products because they have long lives and the products are engineered to meet exacting Underwriters Laboratories, Inc., standards, (2) many breaker products from competing suppliers are interchangeable, so that price premiums that might be created by any installed base are competed away, (3) retrofitting and reconditioning of certain breaker products leads to further erosion of the value of any installed base intangible, and (4) the existence and growing importance of the grey market further erodes the value of any installed base intangible that might otherwise exist. -82- [*82] One of the APA II team’s questions regarding installed based intangibles addressed petitioner’s 1995 Ernst & Young (E&Y) Study, which supported petitioner’s previous treatment of the Island plants as the tested party under a cost- plus method. The APA II team inquired how petitioner reconciled the conclusion of the previous study and its position during the APA II negotiations that EEI owned no nonroutine marketing intangibles. Petitioner’s response explained that the E&Y report was outdated and that the IRS had had prior concerns about the report. Petitioner further explained that the E&Y report referred to a time when, under the Wesco acquisition agreement, all breaker products that Eaton sold carried the “circle W” trademark and benefited from Wesco’s advertisement. At the time of the response, petitioner had not used a Wesco trademark for nearly 10 years. This response also addressed the classic razor and blade analogy and clarified petitioner’s erroneous information on this issue. The response explained that Gillette sold razors that can only be used with Gillette brand replacement blades. Once a sale of a razor is made, Gillette would continue to generate sales volume and profits from the use of Gillette brand replacement blades customized for its razors. The response further explained that because of the nature of circuit breakers, the replacement market was not a volume business. -83- [*83] iii. Technology Intangibles Petitioner provided the APA II team with information regarding the role of its patented technology in the Island plants’ breaker products. The response explained that its patents have little impact on the economic performance of circuit breakers because the breaker product industry was a highly regulated and mature industry. Petitioner explained that most of its patented technology covered primarily tweaks or modifications to existing technologies instead of innovative technology. Petitioner explained that the electrical code policy for this regulatory industry effectively precluded the use of patents to establish monopoly positions. iv. Volume Discounts The APA II team addressed volume discounts as part of its due diligence questions. This issue had been raised previously at the APA II prefiling meeting. Petitioner’s response directed the APA II team to the prefiling discussion included in petitioner’s APA II request, where petitioner explained that [s]imilar to its competitors, EEI provides volume discounts to OEM customers that purchase breaker products. The size of the orders enables the OEM customers to negotiate volume discounts for their purchases. The analysis conducted to determine EEI’s revenue attributable to related party sales of breaker products for APA II * * * uses a CUP analysis that draws on pricing related to OEM sales. Any rebates or customer discounts are factored into the CUP analysis, and thus, the -84- [*84] CUP analysis presented herein implicitly accounts for volume discounts. [EEI] competes with other large companies such as GE, Schneider Electric/Square D, Siemens, and ABB that sell the same or similar electrical products as those sold by EEI. Each of these companies have large worldwide operations, have competed within the electrical products industry for as long, if not longer than, EEI, and have larger marketing budgets compared to EEI. * * * Because there are a number of sophisticated and successful companies selling similar electrical products, EEI’s third party customer pricing must remain in-line with these OEMs, or else it risks losing orders to its competitors. EEI’s third party customer pricing is always determined in a competitive market, which is reflected in the CUP analysis. * * * * * * * [A]ny rebates or customer discounts granted to unrelated OEM customers are factored into the CUP analysis, and thus, the CUP analysis accounts for volume discounts. Consequently, based on the fact that EEI operates in a competitive market and must keep its prices on sales to third party customers in-line with other large, well known competitors, * * * and given the CUP analysis used to evaluate the arm’s-le [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4340787. Public record. Not legal advice.