UNITED STATES TAX COURT

CA

125 T.C. No. 4

UNITED STATES TAX COURT

XILINX INC. AND SUBSIDIARIES, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

XILINX INC. AND CONSOLIDATED SUBSIDIARIES, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 4142-01, 702-03.

Filed August 30, 2005.

P entered into a cost-sharing agreement to develop

intangibles with S, its foreign subsidiary. Each party

was required to pay a percentage of the total research

and development costs based on its respective

anticipated benefits from the intangibles.

P issued

stock options to its employees performing research and

development.

In determining the allocation of costs

pursuant to the agreement, P did not include in

research and development costs any amount related to

the issuance of stock options to, or exercise of stock

options by, its employees. R, in his notices of

deficiency, determined that for cost-sharing purposes,

pursuant to sec. 1.482-7(d), Income Tax Regs., the

spread (i.e., the stock's market price on the exercise

date over the exercise price) or, in the alternative,

the grant date value, relating to compensatory stock

options, should have been included as a research and

development cost.

SERVED AUG 3 0 2005

-21. Held: R's allocation is contrary to the

arm's-length standard mandated by sec. 1.482-1(b),

Income Tax Regs., because uncontrolled parties would

not allocate the spread or the grant date value

relating to employee stock options.

2. Held, further,

P's allocation satisfies the arm'slength standard mandated by sec. 1.482-1, Income Tax Regs.

Kenneth B. Clark, Ronald B. Schrotenboer, William F. Colgin,

Tyler A. Baker, Jaclyn J. Pampel, and Anthony D. Cipriano, for

petitioners.

David P. Fuller, Jeffrey A. Hatfield, Bryce A. Kranzthor,

Lloyd T. Silberzweig, Kendall Williams, David N. Bowen, John E.

Hinding, and Paul K. Webb, for respondent.

OPINION

FOLEY, Judge:

Respondent determined deficiencies in the

amounts of $24,653,660, $25,930,531, $27,857,516, and $27,243,975

and section 6662(a) accuracy-related penalties in the amounts of

$4,935,813, $5,189,389, $5,573,412, and $5,448,795 relating to

petitioners' 1996,¹ 1997, 1998, and 1999 Federal income taxes,

respectively.

The issues for decision are whether:

(1)

Petitioner and its foreign subsidiary must share the cost, if

any, of stock options petitioner issued to research and

development employees,

(2) respondent's allocations meet the

arm's-length requirement set forth in section 1.482-1(b), Income

Tax Regs., and (3) petitioners are liable for section 6662(a)

accuracy-related penalties.

¹ Pursuant to the parties' Apr. 4, 2002, stipulation of

settled issues, the 1996 taxable year is no longer in issue.

-3Background

I.

Xilinx's Line of Business and Corporate Structure

Xilinx Inc.,2 is in the business of researching, developing,

manufacturing, marketing, and selling field programmable logic

devices,3 integrated circuit devices, and other development

software systems.

Petitioner uses unrelated producers to

042

fabricate and assemble its wafers into integrated circuit

devices.

During the years in issue, petitioner was the parent of a

group of affiliated subsidiaries including, but not limited to

Xilinx Holding One Ltd., Xilinx Holding Two Ltd., Xilinx

Development Corporation (XDC), NeoCAD Inc.,4 Xilinx Ireland (XI),

and Xilinx International Corporation.

XI was established in 1994

as an unlimited liability company under the laws of Ireland and

was owned by Xilinx Holding One Ltd., and Xilinx Holding Two Ltd.

(i.e.,

Irish subsidiaries of petitioner).

XI was created to

manufacture field programmable logic devices and to increase

petitioner's European market share.

It manufactured, marketed,

and sold field programmable logic devices, primarily to customers

2 All references to "petitioner" are to Xilinx Inc.

references to "petitioners" are to Xilinx Inc. and its

consolidated subsidiaries.

All

3 Field programmable logic devices are integrated circuits

that can be programmed, using development software, to perform

complex functions.

4

NeoCAD Inc., was liquidated in 1998.

_4_

in Europe, and conducted research and development.

II.

The Cost-Sharing Agreement

On April 2, 1995, petitioner and XI entered into a

Technology Cost and Risk Sharing Agreement (cost-sharing

agreement).

The cost-sharing agreement provided that all "New

Technology" developed by either petitioner or XI would be jointly

owned.

New Technology was defined as technology developed by

petitioner, XI, or petitioner's consolidated subsidiaries, on or

after the execution date of the cost-sharing agreement.

Each

party was required to pay a percentage of the total research and

development costs based on the respective anticipated benefits

from New Technology.

The cost-sharing agreement further provided

that each year the parties would review and, when appropriate,

adjust such percentages to ensure that costs continued to be

based on the anticipated benefits to each party.

Petitioner and XI were required to share direct costs,

indirect costs, and acquired intellectual property rights costs.

Direct costs were defined in the agreement as those costs

directly related to the research and development of New

Technology including, but not limited to, salaries, bonuses, and

other payroll costs and benefits.

Indirect costs were defined as

those costs, incurred by other departments, that generally

benefit all research and development including, but not limited

to, administrative, legal, accounting, and insurance costs.

-5Acquired intellectual property rights costs were defined as costs

incurred in connection with the acquisition of products or

intellectual property rights.

In determining the allocation of

costs pursuant to the cost-sharing agreement, petitioner did not

include in research and development costs any amount related to

the issuance of employee stock options (ESOs).

Cost-sharing percentages for petitioner and XI relating to

1997, 1998, and 1999 were as follows:

In 1997,

Year

Petitioner

1997

1998

1999

73.61%

73.35

65.09

XI

26.39%

26.65

34.91

1998, and 1999, the following number of petitioner's and

XI's employees engaged in research and development:

Year

Petitioner

XI

1997

1998

1999

338

343

394

6

10

16

III. Petitioner's Stock Option Plans

ESOs are offers to sell stock at a stated price (i.e., the

exercise price)

for a stated period of time.

They are used by

many companies to attract, retain, and motivate employees and

align employee and employer goals.

types of ESOs:

There are basically three

statutory or incentive stock options

(ISOs),

nonstatutory stock options (NSOs), and purchase rights issued

pursuant to an employee stock purchase plan (ESPP purchase

-6rights).

ISOs and NSOs allow employees to purchase stock at a

fixed price for a specified period of time.

ESPP purchase rights

allow employees to purchase stock at a discount through the use

of payroll deductions.

ISOs and ESPP purchase rights receive

special tax treatment and are typically not subject to tax when

they are granted or exercised, but the stock acquired pursuant to

the exercise of these options is subject to tax when such stock

is sold.5

NSOs, however, are, pursuant to section 83,6 Property

Transferred in Connection with the Performance of Services,

subject to tax upon exercise unless the option has a readily

ascertainable fair market value.7

Sec. 83(a).

If an NSO has a

5 Pursuant to secs. 422 and 423, respectively, ISOs and

ESPP purchase rights are subject to a holding period requirement.

This period begins on the exercise date and ends on the date that

is the later of 2 years after the grant date or 1 year after the

transfer of the share of stock. Secs. 422(a)(1) and 423(a)(1).

If the employee disposes of the stock before the holding period

expires, this disposition will be considered a "disqualifying

disposition". A disqualifying disposition requires the employee

to recognize ordinary income (i.e., equal to the stock's market

price on the exercise date over the exercise price) in the

taxable year in which the disposition occurred.

Sec. 421(b).

6 Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

An option has a readily ascertainable fair market value

if it is actively traded on an established market or the taxpayer

can establish all of the following conditions:

(1) The option is

transferable by the optionee; (2) the option is exercisable

immediately in full by the optionee; (3) the option is not

subject to any restriction which has a significant effect on.the

fair market value of the option; and (4) the fair market value of

(continued...)

-7readily ascertainable fair market value, income is recognized on

the grant date, and the issuer is entitled to a deduction.

Sec.

83(h); sec. 1.83-7(a), Income Tax Regs.

NSOs, when granted, may be "in-the-money", "out-of-themoney", or "at-the-money".

ISOs, however, may only be "at-the-

money" or "out-of-the-money".8

An option is deemed in-the-money

when the exercise price on the grant date is below the stock's

market price.

Conversely, an option is out-of-the-money when the

exercise price on the grant date is above the stock's market

price.

An option that has an exercise price equal to the stock's

market price on the grant date is considered at-the-money.

An employee typically cannot exercise options, until the

employee has a vested right (i.e., a legal right that is not

contingent on the performance of additional services) in the

option pursuant to the stock option plan's terms.

Some companies

permit immediate vesting upon issuance of an option, while others

delay vesting several years or allow incremental vesting over a

period of years.

7(...continued)

the option privilege is readily ascertainable.

Sec. 1.83-7(b)(1)

and (2), Income Tax Regs.

"Option privilege" is the value of the

right to benefit from any future increase in the value of the

property subject to the option, without risking any capital.

Sec. 1.83-7(b)(3), Income Tax Regs.

Pursuant to sec. 422, the exercise price relating to ISOs

may not be less than the stock's market price on the grant date.

Sec. 422(b) (4).

-8Petitioner, pursuant to broad-based.plans (i.e., plans that

offer ESOs to 20 percent or more of a company's employees),

offered three types of stock option compensation:

and ESPP purchase rights.

were at-the-money.

ISOs, NSOs,

All ISOs and NSOs issued by petitioner

All ESPP purchase rights were issued with an

exercise price equal to 85 percent of the stock's market price.

Prior to and during the 1997 taxable year, the options were

generally subject to a 5-year vesting period.

After 1997,

petitioner decreased the vesting period from 5 to 4 years.

Pursuant to the stock option plan, employees could exercise

options by delivering to petitioner's broker a notice of exercise

with irrevocable instructions and consideration equal to the

exercise price.

The broker would then deliver the instructions

and consideration to petitioner.

Employees could elect to

exercise their options in either a "same-day-sale" or "buy-andhold" transaction.

In a same-day-sale, the employee does not

make a payment for the stock relating to the option.

Instead,

simultaneous execution of the option and sale of the stock

results in the excess of the stock's market price on the grant

date over the exercise price going to the employee and the amount

of the exercise price going to petitioner.

In a buy-and-hold

transaction, the employee pays the exercise price by presenting a

check or other form of consideration to petitioner's broker and

in exchange receives the shares of stock.

_9_

A.

1988 Stock Option Plan

In 1988, petitioner established the Xilinx 1988 Stock Option

Plan (1988 Stock Option Plan).

The 1988 Stock Option Plan

provided for the grant of ISOs and NSOs.

Under the 1988 Stock

Option Plan, petitioner granted options as part of the employee

hiring process and retention program.

Petitioner also granted

merit and discretionary stock options.

Merit options were based

on job performance and granted after an employee's annual review.

Discretionary stock options were a separate pool of options made

available to petitioner's vice presidents to reward their

subordinates for significant project achievements.

Under the 1988 Stock Option Plan, former employees generally

could exercise options if the exercise occurred within 30 days

after the -cessation of the employee's tenure at the company.

In

April of 1998, the 1988 Stock Option Plan was replaced by the

Xilinx, Inc. 1997 Stock Plan (1997 Stock Option Plan).

The 1997

Stock Option Plan provided for the grant of ESPP purchase rights

in addition to ISOs and NSOs.

B.

1990 Employee Qualified Stock Purchase Plan

The Xilinx, Inc. 1990 Employee Qualified Stock Purchase Plan

(ESPP) allowed full-time employees to purchase petitioner's stock

at a discount.

Beginning January 1,

1990, the ESPP provided 24-

month offering periods which commenced during the beginning of

-10January and July.

Eligible employees could participate in the

ESPP by completing a Subscription Agreement authorizing payroll

deductions.

During a 24-month offering period, employees could

contribute to the plan through payroll deductions in any amount

between 2 and 15 percent of their total compensation.

Upon

exercise, petitioner woüld deduct the exercise price from the

employee's accumulated payroll deductions.

The exercise price

was equal to the lower of 85 percent of the stock's market price

on the offering date (i.e., the first day of each offering

period), or 85 percent of the stock's market price on the

exercise date.

Stock could be purchased twice a year (i.e., on

June 30 and December 31).

Petitioner also maintained a stock buy-back program.

Pursuant to the program, petitioner, during 1997, 1998, and 1999,

purchased stock from stockholde.rs and transferred such stock

(i.e., treasury shares) to employees who had exercised options or

purchased stock pursuant to petitioner's ESPP.

IV.

Petitioner's Stock Option Intercompany Agreements With XI

On March 31, 1996, petitioner and XI entered into The Xilinx

Ireland/Xilinx, Inc. Stock Option Intercompany Agreement.

The

purpose of the Stock Option Intercompany Agreement was to allow

XI employees to acquire stock in petitioner.

The Stock Option

Intercompany Agreement provided that the cost incurred by

petitioner for the grant or.exercise of options by XI employees

-11would be borne by XI.

The cost equaled the stock's market price

on the exercise date over the exercise price.

Upon receipt of

petitioner's notice specifying the appropriate amount, XI was

required to pay petitioner.

On March 31, 1996, petitioner and XI also entered into the

Xilinx, Inc./Xilinx Ireland Employee Stock Purchase Plan

Reimbursement Agreement (ESPP Reimbursement Agreement), which

allowed XI employees to purchase, with payroll deductions,

petitioner's stock.

XI was required to pay petitioner the cost

associated with the exercise of the options.

Pursuant to the

agreement, the cost equaled the stock's market price on the

exercise date over the exercise price.

Upon receipt of

petitioner's notice specifying the appropriate amount, XI was

required to pay petitioner.

042

V.

Financial Accounting Disclosure Rules

A.

Background

The Financial Accounting Standards Board (FASB)

is the

professional organization primarily responsible for establishing

financial reporting standards in the United States.

FASB's

standards are known as Generally Accepted Accounting Principles

(GAAP).

For more than 30 years, FASB has recognized certain ESOs

as an expense to the issuing corporation.

-12B.

Accounting Principles Board Opinion No. 25, "Accounting

for Stock Issued to Employees" (APB 25)

In 1972, FASB authorized APB 25, which required ESOs tô be

valued using the "intrinsic value method" (IVM).

From 1972 to

December 15, 1995, the IVM was the only authorized financial

accounting method for valuing ESOs.

Under the IVM, the value of

ESOs is the excess of the stock's market price on the grant date

over the exercise price.

This value is reported directly on the

employer's income statement relating. to the year in which the

ESOs are granted.

ESOs granted at-the-money have no intrinsic

value because the stock's market price on the grant date is equal

to the exercise price.

C.

Statement of Financial Accounting Standard No. 123,

"Accounting for Stock-Based Compensation" (SFAS 123)

In October of 1995, FASB issued SFAS 123, which is effective

for fiscal years ending after December 15, 1995.

SFAS 123.added

the "fair value method" (FVM) as the preferred method for valuing

ESOs.

Pursuant to SFAS 123, companies continuing to use the IVM

were required to "make pro forma disclosures of net income and,

if presented, earnings per share, as if the * * * [FVM] had been

applied."

The value of an ESO is composed of two components:

intrinsic value and the call premium.

the

While the intrinsic value

is equal to the stock's market price on the grant date over the

-13-

exercise price, the call premium is the amount, in excess of an

ESO's intrinsic value, that a purchaser would be willing to pay

for the ESO.

An ESO's call premium is difficult to measure

because it, unlike the call premium of a publicly traded option,

cannot be valued daily based on market transactions.

FASB

readily recognized that the IVM fails to measure adequately the

call premium relating to ESOs.9

Nevertheless, the IVM remained a

permissible accounting method during the years in issue.

Although the EVM was added as the preferred method in 1996, most

companies continued to use the IVM during the years in issue.

Pursuant to the FVM, a corporation must measure the amount

of the expense as equal to the fair value of the ESO on the grant

date and amortize such expense over the vesting period.

Under

SFAS 123, fair value is measured using option pricing models that

042

consider the following six attributes of equity-based

instruments:

the option,

(1) The exercise price,

(2) the expected life of·

(3) the current price of the underlying stock,

the expected price volatility of the underlying stock,

(4)

(5)

expected dividends, and (6) the risk-free interest rate for the

expected life of the option.

The FVM utilizes option pricing models, such as the Black

9 FASB, in SFAS 123, stated: "Zero is not within the range

of reasonable estimates of the value of employee stock options at

the date they are granted, the date they vest, or at other dates

before they expire."

-14Scholes model

ESOs.

(BS model), for purposes of measuring the value of

The BS model was originally designed to measure publicly

traded options and, as a result, fails to adequately take into

account numerous differences between ESOs and publicly traded

options.

For example, ESOs are nontransferable and have terms to

maturity that are usually longer than those of publicly traded

options.

The extended term of an ESO complicates the task of

estimating the volatility of the stock price, which is an

essential input in the pricing of any option.

Furthermore, ESOs

cannot be traded, so they must be discounted to account for the

difference in value between tradeable and nontradeable options

(i.e., tradeable options are worth more than nontradeable

options).

Yet, the appropriate discount is difficult to

determine with reasonable accuracy because the discount is based

on the value of the ESO to an employee.

Moreover, an ESO's value

is affected by whether an employee forfeits the option by failing

to exercise it or exercises the option prior to the expiration of

the ESO's maximum life.

reliably modeled.

These employee decisions cannot be

Thus, FAS 123 requires companies to make

certain adjustments to take into account the differences between

ESOs and publicly traded options.

op.tion forfeiture,

For example, to account for

SFAS 123 requires that an ESO's value be

discounted to reflect the amount of forfeitures expected

annually.

With respect to early exercise, thé expected life of

-15the option is used instead of the ESO's actual or maximum life.

During the years in issue, petitioners, on their Securities

and Exchange Commission Forms 10-K, elected to use the IVM, as

prescribed in APB 25, to measure expenses attributable to ESOs.

As required by SFAS 123, petitioners disclosed net income and

earnings per share as if the FVM had been applied.

In

determining the fair value of ESOs, petitioners used an adjusted

BS model.

VI.

Procedural History

A.

Petitioners' Federal Income Tax Returns

Petitioners are accrual basis taxpayers and timely filed

consolidated Federal income tax returns for their taxable years

ended March 29,

3, 1999.

1996, March 29, 1997, March 28, 1998, and April

During the years in issue, GAAP, pursuant to APB 25,

provided that the issuing company did not incur an expense

related to options granted at-the-money.

25, petitioner did not,

In accordance with APB

for purposes of its cost-sharing

agreement with XI, include any costs related to ESOs issued to

employees.

On December 28, 2000, and October 17, 2002, respondent

issued notices of deficiency relating to 1996 through 1998 and

1999, respectively.

In his notices of deficiency, respondent

determined that petitioners were required, pursuant to its cost-

-16sharing agreement, to share with XI the costs of certain ESOs.

Respondent determined that the cost required to be taken into

account equaled the spread (i.e., the stock's market price on the

exercise date over the exercise price) relating to ESOs exercised

by petitioner's employees (spread theory).

Respondent defined

the spread as the amount of petitioners' section 83 deduction

relating to the exercise of NSOs and disqualifying dispositions

of ISOs and ESPP purchase rights.1°· Respondent's determination

resulted in the following deficiencies and penalties:¹¹

Year

1996

1997

1998

1999

Deficiency

$24,653,660

25,930,531

27,857,516

27,243,975

Penalty

Sec. 6662(a)

$4,935,813

5,189,389

5,573,412

5,448,795

On March 26, 2001, and January 14, 2003, respectively,

petitioners timely filed their petitions with the Court seeking.a

redetermination of the deficiencies set forth in the December 28,

2000, and October 17, 2002, notices.

Petitioner's principal

place of business was San Jose, California, at the time the

¹° ISOs and ESPP purchase rights meeting the requirements

of secs. 422 and 423, however, were not included in respondent's

definition because they are not subject to tax under sec. 83 (see

supra note 5).

¹¹ Respondent's reallocation of petitioner's expenses, in

turn, reduced petitioner's deductible business expenses and

increased petitioner's taxable income.

-17petitions were filed.

On April 4, 2002, the parties stipulated

that no amount relating to ESOs would be included in petitioner's

1996 cost-sharing pool.

B.

Summary Judgment Motions

The Court filed petitioners' motion for partial summary

042

judgment on February 4, 2002, and on March 6, 2002, filed

respondent's cross-motion for partial summary judgment.

On

October 28, 2003, we denied both parties' motions, addressed

whether the spread is a cost pursuant to section 1.482-7(d)(1),

Income Tax Regs., and concluded:

respondent has not established that the spread is

indeed a cost or that the exercise date is the

appropriate time to determine and measure such cost.

* * * In addition, * * * petitioner has not

sufficiently established that it did not incur an

expense upon the employee's exercise of the options at

issue.

The Court also addressed whether respondent's lack of knowledge

of comparable transactions

(i.e., where unrelated parties agree

to share the spread), or a finding that uncontrolled parties

would not share the spread, would have any effect on respondent's

authority to make allocations pursuant to section 1.482-1(a)(2),

Income Tax Regs.

We concluded:

Section 1.482-1(b)(2), Income Tax Regs., does not

require respondent to have actual knowledge of an

arm's-length transaction as a prerequisite to

determining that an allocation should be made.

See

Seagate Technology, Inc. v. Commissioner, T.C. Memo.

2000-388.

If, however, it is established that

-18uncontrolled parties would not share the spread, we may conclude

that respondent's determination is arbitrary, capricious, or

unreasonable. * * * neither party has presented 'sufficient

evidence or established facts adequately addressing whether the

arm's-length standard has been met.

C.

Promulgation of Regulations Addressing Cost Sharing of

Stock-Based Compensation

On July 29, 2002, the U.S. Department of the Treasury

(Treasury) issued proposed regulations regarding the treatment of

ESOs for cost-sharing purposes.

In the preamble accompanying

these proposed regulations, Treasury stated:

The proposed regulations provide that in determining a

controlled participant's operating expenses within the

meaning of § 1.482-7(d)(1), all compensation, including

stock-based compensation, * * * must be taken into

account.

67 Fed. Reg. 48999 (July 29, 2002).

As a result of this change

(i.e., the inclusion of stock-based compensation) to section

1.482-7(d)(1), Income Tax Regs., Treasury stated that it was

adding:

express provlsions coordinating the cost sharing rules

of § 1.482-7 with the arm's length standard as set

forth in § 1.482-1. New § 1.482-7(a)(3) clarifies that

in order for a qualified cost sharing arrangement to

produce results consistent with an arm's length result

within the meaning of § 1.482-1(b)(1), all requirements

of § 1.482-7 must be met, including the requirement

that each controlled participant's share of intangible

development costs equal its share of reasonably

anticipated benefits attributable to the development of

intangibles.

The proposed regulations also make

amendments to § 1.482-1 to clarify that § 1.482-7

provides the specific method to be used to evaluate

whether a qualified cost sharing arrangement produces

-19results consistent with an arm's length result, and to

clarify that under the best method rule, the provisions

of § 1.482-7 set forth the applicable method with

respect to qualified cost sharing arrangements.

Id. at 49000.

Sections 1.482-1 and 1.482-7, Income Tax Regs.,

were modified as follows:

SEC. 1.482-1. Allocation of Income and Deductions Among

Taxpayers.

*

*

*

*

*

*

*

(2) * * * Section 1.482-7 provides the specific method

to be used to evaluate whether a qualified cost sharing

arrangement produces results consistent with an arm's

length result.

*

*

*

*

*

*

*

*

*

SEC. 1.482-7. Sharing of Costs.

*

*

*

*

*

(3) Coordination with § 1.482-1.--A qualified cost

sharing arrangement produces results that are

consistent with an arm's length result within the

meaning of § 1.482-1(b)(1) if, and only if, each

controlled participant's share of the costs (as

determined under paragraph (d) of this section) of

intangible development under the qualified cost sharing

arrangement equals its share of reasonably anticipated

benefits attributable to such development (as required

by paragraph (a)(2) of this section) and all other

requirements of this section are satisfied.

*

*

*

*

*

*

*

(2) Stock-based compensation.--(i)* * * a controlled

participant's operating expenses include all costs

attributable to compensation, including stock-based

compensation.

* * * stock-based compensation means any

compensation provided by a controlled participant to an

employee * * * in the form of equity instruments,

options to acquire stock (stock options), or rights

with respect to (or determined by reference to) equity

instruments or stock options, including but not limited

to property to which section 83 applies and stock

options to which section 421 applies, regardless of

whether ultimately settled in the form of cash, stock,

or other property.

-20(ii) * * * all stock-based compensation that is granted

during the term of the qualified cost sharing

arrangement and is related at date of grant to.the

development of intangibles * * * is included as an

intangible development cost * * *.

(iii) Measurement and timing of stock-based

compensation expense.--(A) In general.-Except as

otherwise provided in this paragraph (d)(2)(iii), the

operating expense attributable to stock-based

compensation is equal to the amount allowable to the

controlled participant as a deduction for federal

income tax purposes with respect to that stock-based

compensation (for example, under section 83(h)) and is

taken into account as an operating expense under this

section for the taxable year for which the deduction is

allowable.

(1) Transfers to which section 421 applies.--Solely for

purposes of this paragraph (d)(2)(iii) (A), section 421

does not apply to the transfer of stock pursuant to the

exercise of an option that meets the requirements of

section 422(a) or 423(a).

Id. at 49001.

On August 26, 2003, Treasury finalized its

proposed regulations without modifying the above-referenced

provisions.

The final regulations are applicable to stock-based

compensation provided to employees in taxable years beginning on

or after August 26, 2003.

D.

Respondent's Amendments to Answer

In the December 28, 2000, notice of deficiency, respondent

determined that the cost-sharing pool included ESOs granted to

petitioner's research and development employees prior to and

after April 2,

1995 (i.e., the cost-sharing agreement's execution

date), and exercised during 1997 and 1998.

On August 4, 2003,

the Court filed respondent's motion for leave to file an

-21amendment to the answer in docket No. 4142-01 (i.e., relating to

1997 and 1998).

On October 21, 2003, the Court granted the

motion and filed respondent's amendment to answer which asserted

that the only ESOs at issue were those granted on or after April

2, 1995, and exercised during 1997 and 1998.

As a result of this

amendment, respondent's adjustments to petitioner's cost-sharing

pool, relating to ESOs exercised in 1997 and 1998, decreased from

$4,504,781 to $389,037 and $5,195,104 to $1,263,006,

respectively.

On November 25, 2003, the Court granted the parties' joint

motion to consolidate docket No. 4142-01 and docket No. 702-03

(i.e., relating to 1999)

for purposes of trial, briefing, and

opinion.

The Court, on February 6, 2004, filed respondent's motion

for leave to file a second amendment to the answer in docket No.

4142-01 and an amendment to the amended answer in docket No. 70203.

In this motion, respondent sought permission to contend that

ESOs provided to petitioner's research and development employees

be valued as of the date those options were granted (grant date

theory).

On April 8, 2004, the Court denied respondent's motion

because the motion failed to provide sufficient information

(i.e., the number of options at issue or the amounts of the

revised deficiencies)

relating to respondent's grant date theory.

The Court, on May 11, 2004,

filed respondent's motion for

-22leave to file a second amendment to the answer in docket No.

4142-01 and an amendment to the amended answer in docket No. 702-

03.

In this motion, respondent included the number of options at

issue and the amounts of the revised deficiencies.

Pursuant to

his grant date theory, the amounts of the revised deficiencies

relating to 1997, 1998, and 1999 are $25,121,951, $27,854,698,

and $24,784,465, respectively.

On June 3, 2004, the Court

granted respondent's motion but concluded that respondent's

amendment raised a new matter because "the grant date theory

requires different evidence (i.e., includes additional options

and utilizes a different method of valuation)" and alters the

original deficiency.

On July 14, 2004, the trial commenced.

Discussion

I.

Applicable Statute and Regulations

A.

Purpose and Scope of Section 482

Section 482 was enacted to prevent tax evasion and ensure

that taxpayers clearly reflect income relating to transactions

between controlled entities.

It accomplishes this purpose by

authorizing respondent:·

[to] distribute, apportion, or allocate gross income,

deductions,. credits, or allowances between or among

* * * [controlled entities], if he determines that such

distribution, apportionment, or allocation is necessary

* * * to prevent evasion of taxes or clearly to reflect

the income of * * * [such entities].

-23Section 482 places a controlled taxpayer on a tax parity

with an uncontrolled taxpayer by determining the true taxable

income of the controlled taxpayer.

Tax Regs.

Sec. 1.482-1(a)(1), Income

In determining true taxable income, "the standard to

be applied in every case is that of a taxpayer dealing at arm's

length with an uncontrolled taxpayer."

See United States Steel

042

Corp. v. Commissioner, 617 F.2d 942, 947 (2d Cir. 1980)

(stating

the "'arm's length' standard is * * * meant to be an objective

standard that does not depend on the absence or presence of any

intent on the part of the taxpayer to distort his income."),

revg. T.C. Memo. 1977-140; sec. 1.482-1(b)(1), Income Tax Regs.

Because identical transactions are rare, the arm's-length result

will "generally * * * be determined by reference to the results

of comparable transactions under comparable circumstances."

Sec.

1.482-1(b) (1), Income Tax Regs.

B.

Application of Section 482 to Qualified Cost-Sharing

Agreements

Section 482 provides that "In the case of any transfer * * *

of intangible property * * * the income with respect to such

transfer * * * shall be commensurate with the income attributable

to the intangible."

agreement (QCSA)

Participants in a qualified cost-sharing

relinquish exclusive ownership of all

exploitation rights in new intangibles they individually develop

and agree to share ownership of, and costs associated with, such