# UNITED STATES TAX COURT > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Atax-court%3Aa44955222f19235b ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text SR 155 T.C. No. 10 UNITED STATES TAX COURT THE COCA-COLA COMPANY & SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 31183-15. Filed November 18, 2020. P, a U.S. corporation, was the legal owner of the intellectual property (IP) necessary to manufacture, distribute, and sell some of the best-known beverage brands in the world. This IP included trademarks, product names, logos, patents, secret formulas, and proprietary manufacturing processes. P licensed foreign manufacturing affiliates, called "supply points," to use this IP to produce concentrate that they sold to unrelated bottlers, who produced finished beverages for sale to distributors and retailers throughout the world. P's contracts with its supply points gave them limited rights to use the IP in performing their manufacturing and distribution functions but gave the supply points no ownership interest in that IP. During 2007-2009 the supply points compensated P for use of its IP under a formulary apportionment method to which P and R had agreed in 1996 when settling P's tax liabilities for 1987-1995. Under that method the supply points were permitted to satisfy their royalty obligations by paying actual royalties or by remitting dividends. During 2007-2009 the supply points remitted to P dividends of about $1.8 billion in satisfaction of their royalty obligations. The 1996 agree- SERVED Nov 18 2020 -2ment did not address the transfer pricing methodology to be used for years after 1995. Upon examination of P's 2007-2009 returns R determined that P's methodology did not reflect arm's-length norms because it overcompensated the supply points and undercompensated P for the use of its IP. R reallocated income between P and the supply points employing a comparable profits method (CPM) that used P's unrelated bottiers as comparable parties. See sec. 1.482-5, Income Tax Regs. These adjustments increased P's aggregate taxable income for 2007- 2009 by more than $9 billion. 1. Held: R did not abuse his discretion under I.R.C. sec. 482 by reallocating income to P by employing a CPM that used the supply points as the tested parties and the bottlers as the uncontrolled comparables. 2. Held, further, R did not err by recomputing P's I.R.C. sec. 987 losses after the CPM changed the income allocable to P's Mexican supply point, a branch of P. 3. Hel_d, further, P made a timely election to employ dividend offset treatment with respect to dividends paid by the supply points during 2007-2009 in satisfaction of their royalty obligations. R's reallocations to P must accordingly be reduced by the amounts of those dividends. John B. Magee, Kevin L. Kenworthy, Sanford W. Stark, Saul Mezei, Steven R. Dixon, Carl Terrell Ussing, Lisandra Ortiz, Lamia R. Matta, Michael D. Kummer, Hans D. Gerling-Ritters, and John F. Craig III, for petitioner. -3Jill A. Frisch, Anne O'Brien Hintermeister, Julie Ann P. Gasper, Heather L. Lampert, Curt M. Rubin, Lisa M. Goldberg, and Huong T. Bailie, for respondent. CONTENTS FINDINGSOFFACT.............................................. 12 I. II. International Structure ... . . . . . ... . . . . . .... . . . . ... . . . . . .... . . . . . 12 A. SupplyPoints...........................................13 B. Service Companies.......................................15 C. Bottlers................................................16 TheCoca-ColaSystem................................ .........18 A. IntegratedManagement...................................18 B. Functions Performed ... . . . . .... . . . . .... . . . . .... . . . . .... . .20 1. 2. III. Manufacturing.....................................20 a. R&D....................................... 21 b. Quality Assurance............................. 22 c. Concentrate Production . . . . . . . . . . . . . . . . . . . . . . . . .24 d. Beverage Production and Bottling. . . . . . . . . . . . . . . . . 25 e. Supply Chain Management . . . . . . . . . . . . . . . . . . . . . .26 Marketing/Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 a. Consumer Marketing........................... 31 b. Trade Marketing and Distribution . . . . . . . . . . . . . . . . 37 Contractual Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 A. Supply Point Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 1. B. Rights and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 a. Production and Sale of Concentrate . . . . . . . . . . . . . . . 43 b. Trademarks.................................. 44 2. Term Length and Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . 46 3. Remuneration..................................... 47 Service Company Agreements .. . . . . .... . . . . .... . . . . .... . . . 49 1. Standard Terms.................................... 49 -4- C. IV. OtherProvisions....................................52 3. Invoicing......................................... 54 BottlerAgreements.......................................57 1. Rights and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 a. Production and Sale of Finished Beverages . . . . . . . . . 57 b. Trademarks.................................. 59 2. Term Length and Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . 59 3. Remuneration......................................61 AssetsandIncome............................................66 A. B. C. V. 2. Assets.................................................68 1. HQ..............................................68 2. SupplyPoints......................................69 IncomeandExpenses.....................................70 1. HQ..............................................71 2. SupplyPoints......................................72 Brazilian Trademarks.....................................76 Tax Reporting and IRS Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 OPINION........................................................ 85 I. Burden ofProof.............................................. 85 II. StandardofReview............................................86 III. Threshold Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 IV. A. The 1996 Closing Agreement.............................. 93 B. Relevant Parties and Transactions.......................... 98 C. The"Best Method Rule" .................................102 Respondent's Bottler CPM .. . . . . .... . . . . .... . . . . .... . . . . .... . . .109 A. Reasonableness of CPM Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . 115 B. C. Selection of Bottlers as Comparable Parties. . . . . . . . . . . . . . . . . . .120 Data, Assumptions, and Comparability Adjustments . . . . . . . . . . . 133 1. SelectionofBottlers............................... 134 2. Computational Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . 137 -5- 3. a. OperatingAssets.............................137 b. OperatingProfit..............................140 Implementation of CPM/ROA . . . . . . . . . . . . . . . . . . . . . . . .143 V. "SplitInvoicing".............................................147 VI. Petitioner's Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 A. Supposed "Marketing Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . 150 1. LegalOwnership...................................154 2. Economic Substance................................159 a. Setting Aside Contract Terms .. . . . . . . . . . . . . . . . . . 160 b. Consistency With Economic Substance . . . . . . . . . . . 167 B. Supposed "Long-Term Licenses". . . . . . . . . . . . . . . . . . . . . . . . . . . 172 C. Royalties Payable by Brazilian Supply Point . . . . . . . . . . . . . . . . . 175 1. Ownership of Brazilian Trademarks . . . . . . . . . . . . . . . . . . . 175 2. Brazilian "Blocked Income". . . . . . . . . . . . . . . . . . . . . . . . . .184 D. Bottlers' Ownership of Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . 1 86 E. Proposed Alternative Transfer Pricing Methodologies . . . . . . . . . . 191 1. Proposed CUT Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 2. Proposed "Residual Profit Split Method" . . . . . . . . . . . . . . 197 3. Proposed "Unspecified Method" . . . . . . . . . . . . . . . . . . . . . .206 VII. Collateral Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 A. Recomputation of Section 987 Loss . . . . . . . . . . . . . . . . . . . . . . . . 209 B. DividendOffset........................................218 APPENDIX......................................................230 LAUBER, Judge: The Coca-Cola Co. (TCCC) is the ultimate parent of a group of entities (Company) that do business in more than 200 countries throughout the world. TCCC and its domestic subsidiaries (petitioner) joined in filing consolidated Federal income tax returns for 2007, 2008, and 2009. Upon exami- -6nation of those returns, the Internal Revenue Service (IRS or respondent) made adjustments that increased petitioner's aggregate taxable income by more than $9 billion, resulting in tax deficiencies as follows: Year Deficiency 2007 2008 2009 $1,114,116,873 1,069,425,951 1,121,220,625 By amendment to answer, respondent determined additional deficiencies attributable to the use of "split invoicing" by certain of petitioner's foreign affiliates. M infra pp. 64-66. The additional deficiencies are as follows: Year Increase in deficiency 2007 2008 2009 $28,124,719 43,314,595 63,465,860 These deficiencies result from transfer pricing adjustments under section 482 by which the IRS reallocated substantial amounts of income to petitioner, chiefly from its foreign manufacturing affiliates.¹ These affiliates had plants in ¹Unlessotherwise indicated, all statutory references are to the Internal Revenue Code (Code) in effect at the relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. We round most monetary amounts to the nearest dollar. Dollar amounts appearing in tables occasionally do not sum exactly because of rounding. -7Brazil, Chile, Costa Rica, Egypt, Ireland, Mexico, and Swaziland.2 The plants produced "concentrate"--syrups, flavorings, powder, and other ingredients--used in the production of petitioner's branded soft drinks (including Coca-Cola, Fanta, and Sprite) and other nonalcoholic, ready-to-drink beverages. These affiliates sold and distributed concentrate to hundreds of Coca-Cola bottlers in Europe, Africa, Asia, Latin America, and Australasia. The bottlers, most of which were independent of petitioner, ranged from small family-owned businesses to large multinational companies. The bottlers used this concentrate to produce finished beverages that they marketed (directly or through distributors) to millions of retail establishments throughout the world (excluding the United States and Canada). Because the foreign manufacturing affiliates supplied concentrate to bottlers, these affiliates are often called "supply points," and we will generally refer to them as such. To enable the supply points to manufacture and sell concentrate, petitioner licensed them to use petitioner's intangible property, including trademarks, brand names, logos, patents, secret formulas, and proprietary manufacturing processes. This intangible property is extremely valuable: Coca-Cola is the best known 2Swaziland has since changed its name to the Kingdom of Eswatini. We refer to it as Swaziland in this Opinion to match the parties' terminology. -8brand in the world, recognized by more of the planet's 7.7 billion inhabitants than any other English word but "OK." The gist of respondent's position is that the supply points paid insufficient compensation to petitioner for the rights to use petitioner's intangible property. The Irish and Brazilian supply points account for roughly 85% of the disputed income adjustments.3 For 2007-2009 petitioner reported income from its foreign supply points using the "10-50-50 method," as it had done for the previous 11 years. This was a formulary apportionment method to which petitioner and the IRS had agreed in a closing agreement executed in 1996, which resolved petitioner's tax liabilities for 1987-1995. This method permitted the supply points to retain profit equal to 10% 3All of the supply points except the Mexican supply point were controlled foreign corporations (CFCs). See sec. 957(a). The Mexican supply point operated as a branch, and its income was reported on petitioner's U.S. consolidated return. As applied to the Mexican supply point, therefore, the transfer pricing adjustment did not increase petitioner's gross income. Rather, the IRS sought to reduce petitioner's foreign tax credits on the theory that the Mexican branch had reported insufficient royalty expenses for use of petitioner's intangible property, thus artificially inflating the branch's income and the Mexican corporate tax paid thereon. Respondent contended that the Mexican taxes were to that extent noncompulsory payments ineligible for the foreign tax credit. See sec. 901; sec. 1.901-2(a)(2)(i), Income Tax Regs. We resolved that issue in petitioner's favor on summary judgment. See Coca-Cola Co. & Subs. v. Commissioner, 149 T.C. 446 (2017). The tax liabilities attributable to the Mexican supply point for 2007-2009 have thus been resolved, with the exception of a foreign currency adjustment under section 987. See infra pp. 209-218. But the operations of the Mexican supply point are relevant to the overall transfer pricing analysis and were the subject of extensive testimony at trial. -9of their gross sales, with the remaining profit being split 50%-50% with petitioner. The closing agreement did not address what transfer pricing methodology would be used for years after 1995. But petitioner continued to employ the 10-50-50 method, from 1996 onwards, to report income from its foreign supply points unless an advance pricing agreement or competent authority proceeding dictated otherwise. Because the closing agreement specified the compensation due petitioner for use of its intangible property, the amounts due petitioner under the 10-50-50 method were in the nature of royalties. However, the closing agreement permitted the foreign supply points to satisfy their royalty obligations by paying actual royalties or by repatriating funds to petitioner in other ways, e.g., by paying dividends. During 2007-2009 more than $1.8 billion of the income petitioner received from its foreign supply points pursuant to the 10-50-50 method took the form of dividends rather than royalties. Petitioner claimed "deemed paid" foreign tax credits (FTCs) under section 902 with respect to these dividends, as the closing agreement had permitted for 1987-1995. Upon examination of petitioner's 2007-2009 returns the IRS concluded that the 10-50-50 method did not reflect arm's-length pricing because it overcompensated the supply points and undercompensated petitioner for the use of its intan- - 10 gible property. Invoking section 482, the IRS reallocated income to petitioner using a comparable profits method (CPM), treating independent Coca-Cola bottlers as comparable parties. The IRS regarded these bottlers as comparable to the supply points because they operated in the same industry, faced similar economic risks, had similar contractual relationships with petitioner, employed many of the same intangible assets (petitioner's brand names, trademarks, and logos), and ultimately shared the same income stream from sales of petitioner's beverages. To implement its bottler CPM, the IRS determined the average return on operating assets (ROA) for a group of independent Coca-Cola bottlers that it deemed comparable. It applied that average ROA to the operating assets of each supply point, generating a deemed arm's-length operating profit. The IRS then reallocated to petitioner all income received by each supply point in excess of that benchmark. This methodology produced very substantial reallocations from the Irish and Brazilian supply points and somewhat smaller reallocations from the Costa Rican, Chilean, and Swazi supply points. The IRS methodology generated a reverse allocation of income from petitioner to the Egyptian supply point, which for historical reasons had endured many years of economic underperformance. Petitioner challenges respondent's section 482 reallocations as arbitrary and capricious. It contends that the IRS acted arbitrarily by abandoning the 10-50-50 - 11 method, having acquiesced in the use of that method during five prior audit cycles spanning a decade. In any event, petitioner argues that the IRS erred in employing the bottler CPM to reallocate income. Petitioner contends that independent Coca-Cola bottlers are not comparable to the supply points because the latter own immensely valuable intangible assets that do not appear on their balance sheets or in any written contract. These assets, which petitioner calls "marketing intangibles" or "IP associated with trademarks," allegedly were created when the supply points financed consumer advertising in foreign markets. Petitioner urges that the bottlers by comparison are "marketinglight" businesses that operate at a different level of the market. Petitioner urges that the supply points owned (in substance if not in form) local rights to petitioner's valuable brands and should thus enjoy supranormal returns as "master franchisees" or long-term licensees. To implement that theory petitioner offers, as alternatives to respondent's bottler CPM, a comparable uncontrolled transaction (CUT) model and a residual profit split method (RPSM) as the best methods for determining the supply points' true economic income. Alternatively, if a bottler ROA is applied to the supply points, petitioner contends that each supply point's asset base should be increased to reflect the value of its supposed "marketing intangibles." - 12 If we sustain respondent's position in whole or part, petitioner urges that the transfer pricing adjustments should be reduced to reflect dividends paid by the supply points, to the extent those amounts were repatriated to satisfy the supply points' royalty obligations. Although petitioner elected "dividend offset" treatment on timely filed returns for 2007-2009, it did not include in those returns ex- planatory statements as directed by Rev. Proc. 99-32, 1999-2 C.B. 296. Respondent contends that petitioner's failure to include these statements is fatal to its claim to dividend offsets. Petitioner urges that it substantially complied with the revenue procedure's requirements and that substantial compliance was sufficient.4 FINDINGS OF FACT I. International Structure In 1886 TCCC produced the first Coca-Cola beverage, which it sold initially at soda fountains. In 1899 it transferred to third parties, for $1, the exclusive rights to bottle and distribute finished Coca-Cola beverages throughout the United States. This created the "Coca-Cola System," comprising the Company and its 4Petitioner concedes that allowing dividend offsets would cause the dividends to lose their character as such, necessitating forfeiture of the deemed-paid FTCs petitioner had claimed with respect to those dividends. Respondent has amended his answer to allege that FTCs of $40,717,804 for 2007, $65,941,179 for 2008, and $49,977,463 for 2009 should be disallowed in the event we permit petitioner to offset, against a reallocation of royalty income, the dividends paid by the supply points in satisfaction of their royalty obligation. - 13 (largely independent) bottlers. At all relevant times petitioner has had its headquarters (HQ) and principal place of business in Atlanta, Georgia. Petitioner expanded internationally in the early 1900s, arriving in Europe and Latin America during the 1920s. As a vehicle for this growth petitioner established in 1930 the Coca-Cola Export Corp. (Export), a wholly-owned domestic subsidiary of TCCC. Export expanded aggressively, creating branches in 27 foreign countries by 1975. By 2008, 74% of the Company's sales were made outside the United States. A. Supply Points Petitioner engaged in significant restructuring as its international market matured. During World War II it had built numerous plants in Europe and Asia to supply Coca-Cola to U.S. soldiers. After the war petitioner sold the bottling facilities to private-sector companies. As bottlers were divested to third parties, Export began contributing its concentrate plants and other branch assets to foreign subsidiaries. Export's contributions to these subsidiaries generally consisted of tangible operating assets, associated goodwill, and similar items. The subsidiaries acquired via these transactions no meaningful intangible property in the form of trademarks, tradenames, copyrights, franchises, licenses, or bottler agreements. - 14 Export initially established affiliates in virtually every country to manufacture and supply concentrate to local bottlers. Before 1988, for example, Export had a fully integrated concentrate plant in every Western European country. Over time the Company gradually consolidated its concentrate manufacturing into larger plants that supplied concentrate to bottlers in diverse national markets. The Irish supply point, which reported average annual gross revenues of $6.89 billion during 2007-2009, ultimately sold concentrate to bottlers in more than 90 countries, some as distant as New Zealand and Papua New Guinea. Export owned (directly or indirectly) the seven supply points involved here. The Mexican supply point was a branch of Export and its income was reported on petitioner's U.S. consolidated return. The Brazilian supply points and the Chilean supply point6 were CFCs wholly-owned by Export. The Costa Rican, Egyptian, 5The Brazilian supply point, Coca-Cola Indústrias Ltda. (CCIL), was the parent of Recofarma Indústria do Amazonas Ltda. (Recofarma), which operated the Brazilian manufacturing facilities. In August 2009 Recofarma acquired CocaCola Concentrados e Refrigerantes Ltda. (CCRL), which it thereafter operated as a flavoring plant. For U.S. tax purposes Recofarma and CCRL elected to be treated as disregarded entities of CCIL, and we will refer to CCIL and its subsidiaries collectively as the Brazilian supply point. 6 The Chilean supply point, Coca-Cola de Chile, S.A., formed Nuevas Bebidas de Colombia Ltda. as a wholly owned subsidiary in March 2009, and the latter elected for U.S. tax purposes to be treated as a disregarded entity. We will refer to these entities collectively as the Chilean supply point. - 15 Irish, and Swazi supply points were branches or disregarded subsidiaries of Atlantic Industries (Atlantic), a Cayman Islands CFC wholly-owned by Export. B. Service Companies As concentrate manufacturing became consolidated into fewer and fewer supply-point affiliates, the Company's other foreign activities were typically taken over by local service companies (ServCos). During 2007-2009 the Company appears to have had at least 60 foreign ServCos, each serving one or more national markets. The ServCos were responsible for local advertising and in-country consumer marketing, which they carried out with assistance from third-party media companies and creative design firms. The ServCos were also responsible for liaison with local bottlers, a function petitioner called "franchise leadership." A few ServCos had research and development (R&D) centers, which served multiple national markets. The supply points had little or no direct ownership interest in the ServCos that served these national markets. Most of the ServCos were owned by Export, generally through a chain of subsidiary CFCs. Atlantic owned two ServCos (both Irish entities) and 48% of the Mexican ServCo. TCCC itself owned (directly or indirectly) CFCs that operated ServCos in Panama, Costa Rica, and Peru. -16C. Bottlers The vast bulk of the Company's beverages were (and are) produced and distributed by independent Coca-Cola bottlers. At the outset many bottlers were small, often family-owned, enterprises that distributed to retailers within a narrow geographic market. But bottlers were likewise transformed by consolidation, and many became large multinational companies. During 2007-2009 the Company had about 300 independent bottlers that served (directly or indirectly) about 20 million retailers. The three largest independent bottlers were Coca-Cola Enterprises (CCE), Coca-Cola FEMSA, and Coca-Cola Hellenic (Hellenic). CCE, which operated in Western Europe and North America, sold about 42 billion units of Coca-Cola beverages annually. Coca-Cola FEMSA served more than 1.5 million retailers throughout Latin America.7 Hellenic served 28 national markets in Western and Central Europe, the Balkans, Russia, and Ukraine. The bottlers produced numerous nonalcoholic ready-to-drink (NARTD) beverages, generally (but not exclusively) under petitioner's brands. These included the Company's iconic carbonated soft drinks (CSDs): original Coca-Cola 7TCCC held minority equity interests in Coca-Cola FEMSA and certain other bottlers. In no case did these stock holdings permit petitioner to control those bottlers' activities or dictate their decisions. - 17 (Coke Red), Fanta, Sprite, and variations and extensions of these brands (such as Diet Coke and Coke Zero). In more recent years, as the Company expanded its beverage portfolio, the bottlers produced an increasing array of noncarbonated drinks (non-CSDs), including juices, teas, bottled waters, energy drinks, and coffee-flavored beverages. The bottlers produced most of these beverages using concentrate manufactured by the supply points. As appropriate to the particular drink, the bottlers mixed the concentrate with purified water, carbon dioxide, sweeteners, and/or flavorings; injected the finished beverages into bottles and cans of various serving sizes; packaged and warehoused these items pending distribution; and delivered the beverages to retail establishments that included supermarkets, small retail stores, bars, and restaurants. In certain European markets bottlers relied on intermediate distributors to deliver the beverages to those retail customers. Although independent bottlers were crucial for the Coca-Cola System, petitioner occasionally acquired bottlers and brought them temporarily "in house." This occurred (for example) when a bottler encountered financial difficulty or had to be divested in a merger. In 2006 TCCC grouped these controlled bottlers into a single management unit--the Bottling Investments Group (BIG), colloquially known as the "bottler hospital"--and supervised their activities directly from - 18 Atlanta. Generally, petitioner's objective was to divest ownership of these controlled bottlers as soon as they had recovered their footing operationally and financially. At any point in time, however, controlled bottlers could account for 10% or more of the Company's unit volume in foreign markets. II. The Coca-Cola System The Company and its authorized bottlers coordinated their functions in or- der to manufacture, market, and distribute--every day of the year--about 1.6 billion servings of NARTD beverages. This daily coordination created a shared identity and synergistic relationship between the Company and its bottlers. Each regarded itself as an integrated component of the Coca-Cola System. A. Integrated Management The Company used a flexible management structure that permitted local adaptation and encouraged close coordination with bottlers. By 2007 the Company had adopted a governance model called "Freedom within a Framework." Through its HQ function in Atlanta, TCCC set detailed guidelines for brand identity, visual identity of products, quality assurance, business goals, and marketing strategies. But it permitted local units to adapt these rules (within limits) to the cultural, religious, linguistic, and culinary traditions of their particular foreign markets. - 19 During 2007 TCCC delegated authority to regional operating groups (OGs) for the following territories: North America, Latin America, the European Union (EU), Eurasia, Africa, and the Pacific. (Eurasia and Africa were merged in 2008.) Each geographical OG supervised multiple business units (BUs), formerly called divisions, which typically had responsibility for one or more national markets, depending on their size. The OGs and BUs were not legal entities. Rather, they identified lines of managerial reporting from smaller to larger geographical territories and ultimately to HQ in Atlanta. Almost all Company personnel involved in the manufacture of concentrate worked for the supply points.8 The Irish, Mexican, Costa Rican, and Swazi supply points had virtually no workers other than those engaged in producing concentrate and their support staff. Most other personnel, including those holding leadership positions in the OGs and BUs, were employed by the ServCos. During the years at issue, the ServCos employed all of the OG leadership and about 90% of the 200 officers who made up the BU leadership. The ServCo leadership teams acted as the liaison between the Company and local bottlers. These teams acted in a day-to-day advisory role to bottlers, facilitat8Personnel who worked for the Mexican supply point were nominally on the payroll of the Mexican ServCo. This was apparently done to solve a Mexican labor-law problem. - 20 ing bottlers' access to the Company's statistical data, consumer insights, advertising plans, and marketing strategies. They shared with bottlers the responsibility for creating coordinated annual business plans that fulfilled TCCC's global strategy and the needs of the local market. These annual business plans reflected detailed discussions with bottlers concerning beverage pricing, packaging, marketing, and distribution channels. The ServCos and the bottlers relied on Company data and guidelines for the granularlevel details of these plans. But the budgets and overall strategies were reviewed and approved by TCCC and the top leadership of each bottler. B. Functions Performed The Coca-Cola System required that its participants discharge two principal functions: manufacturing and marketing/distribution. The Company and the bot- tiers jointly discharged these functions, performing complementary tasks in a synergistic way. 1. Manufacturing The Coca-Cola System relied on an integrated manufacturing supply chain that employed personnel from all of the entities discussed above. TCCC, assisted by the ServCos, took principal responsibility for R&D and quality assurance. Actual production was split between the supply points and the bottlers: The supply - 21 points manufactured concentrate, and the bottlers used the concentrate to produce Coca-Cola beverages. TCCC was chiefly responsible for supply chain management regarding concentrate, and the bottlers were responsible for supply chain management regarding finished products. a. R&D Much of the system's value rested on familiar, consistently flavored drinks delivered by well-established production processes. Perhaps for that reason, the Company's R&D budget was smaller (as a percentage of revenues) than the R&D budgets of some of its competitors. But the Company maintained an active R&D program to explore new beverages, ingredients, sweeteners, and packaging. The annual budget for this program during 2007-2009 averaged about $200 million, roughly 1% of the Company's worldwide revenues. The Company divided its R&D projects into two major subsets: research projects and development projects. Most research projects were undertaken by TCCC's central R&D laboratory in Atlanta. These projects consisted of new, unproven methods that, if successful, could be implemented across many countries and product lines. Examples included research into new sugar substitutes and environmentally friendly packaging materials. - 22 Development projects usually focused on customizing global products and concepts for local implementation, taking account of local regulations, taste preferences, and other variables. These projects were undertaken primarily by the Company's six regional R&D centers. Two of these were in the United States. As far as the record reveals, the other four--located in Belgium, Brazil, China, and Japan--were operated by ServCos. TCCC and the ServCos were responsible for virtually all of the Company's R&D. TCCC owned and staffed the three domestic R&D centers and employed roughly 60% of the Company's researchers. ServCos employed all other R&D personnel except for 20 employees who worked for the Brazilian supply point. The other supply points had no R&D personnel on their staffs. b. Quality Assurance TCCC personnel discharged most of the Company's quality control functions. The Ingredient Quality Department, part of the HQ function in Atlanta, worked with the regional R&D centers to ensure consistent production quality by codifying recipes, creating global ingredient standards, and approving third-party suppliers of raw materials. Because TCCC was ultimately responsible for all formulations of Coca-Cola products, any reformulations of these beverages (e.g., to use new sweeteners) had to be approved by HQ. TCCC published quality assur- - 23 ance information on a central database (Optiva in 2007 and Picasso in 2008 and 2009) that supply points and bottlers could easily access. TCCC personnel, with assistance from outside professionals, performed regular quality control audits of supply points, flavoring plants, and other manufacturing facilities, including plants owned by bottlers. TCCC audited supply point facilities every two or three years. Although the bottlers relied on the Company for quality assurance with respect to concentrate, they were responsible for quality assurance with respect to their own production processes. Bottlers engaged in extensive testing of finished products in their own on-site laboratories. The supply points, using their production personnel, engaged in day-to-day quality control, e.g., by performing in-process and product release testing. They performed this testing by following the Coca-Cola Management System, which provided an outline of the Company's quality control expectations. None of the supply points (apart from the Brazilian supply point) had any employees specifically dedicated to quality assurance.9 °During 2007-2009 the Brazilian supply point employed (on average) about 50 workers identified by petitioner as primarily engaged in quality assurance. - 24 c. Concentrate Production The supply points manufactured concentrate. Their manufacturing activity consisted of procuring raw materials and using TCCC's guidelines and production technologies to mix and convert raw materials into concentrate. Their procurement activities were limited: Many ingredients could be obtained only through Company-owned flavor plants, and other ingredient purchases were negotiated by bulk procurement specialists employed by TCCC or the ServCos. Only three supply point employees (one in Chile and two in Brazil) were specifically dedicated to procurement. After completing the manufacturing process, the supply points packaged the concentrate into kits tailored to the needs and capacities of the bottiers to whom they distributed. The manufacturing process entailed various forms of extraction, filtration, mixing, blending, aging, and precision filing. In performing these activities the supply points employed TCCC's secret formulas, confidential ingredients, and proprietary mixing specifications. All of these steps were governed by a detailed manufacturing protocol dictated by TCCC. Petitioner's experts agreed that this manufacturing activity was a routine activity that could be benchmarked to the activities of contract manufacturers. Two of petitioner's experts, Drs. Michael - 25 Cragg and Sanjay Unni, applied an 8.5% markup on costs to determine an appropriate return for the supply points' concentrate manufacturing function.¹° The vast majority of the people who worked at the supply points were engaged solely in concentrate production. In 2009 the Irish supply point had 599 employees, at least 588 of whom were engaged in concentrate production. The Costa Rican supply point had 60 employees, all of whom were engaged in concentrate production. The Swazi supply point had 153 employees, 135 of whom were engaged in concentrate production. The Brazilian, Chilean, and Egyptian supply points performed other business activities, including marketing, sales, and finance. To the extent supply point employees engaged in such nonproduction activities, they generally performed functions similar to those performed by ServCo employees and overseen by BU leadership. As explained infra p. 50, ServCos were compensated for their services on a cost-plus basis. d. Beverage Production and Bottling Bottlers performed all finished product manufacturing. Having procured concentrate from supply points, the bottlers prepared finished beverages by mixing the concentrate with purified water, carbon dioxide (for sparkling drinks), sugar or ¹°Analphabetical listing of the parties' expert witnesses, together with a brief résumé of each, appears in an appendix to this Opinion. - 26 other sweeteners, and additional ingredients obtained from Company-approved suppliers. The Company imposed strict standards for water quality, and each bottling facility was equipped with an advanced water treatment system. As a rule, each class of beverage (CSDs, juices, and table waters) ran on a specialized, highspeed production line that typically could handle only one product in one package size at a time. Bottlers thus needed multiple production lines to cover all beverages in all forms of packaging. Bottlers printed and appended brand labels to the cans and bottles before distributing or warehousing the products. e. Supply Chain Management The Company and the bottlers each performed supply chain management over their respective shares of the production and distribution cycle. The Company managed the supply chain from the sourcing of raw ingredients through the production of concentrate to the allocation of concentrate to bottlers. Bottlers managed the supply chain from that point forward. TCCC performed virtually all supply chain management for the Company during 2007-2009. Many years earlier, when concentrate production was widely dispersed on a country-by-country basis, the Company had delegated supply chain management to local BUs. But that form of supervision became inefficient as con- - 27 centrate manufacturing was consolidated into fewer plants that sold to hundreds of bottlers worldwide. In a bid to rationalize this system and reduce production costs, the Company in the late 1990s centralized supply chain management into the Commercial Product Supply (CPS) group. During the tax years at issue CPS was a subdivision of BIG and (like it) was centrally managed by HQ in Atlanta. A Supply Point Committee, including CPS managers and top officials from TCCC's tax and treasury departments, made key recommendations about concentrate supply. CPS leadership regularly shifted and reorganized concentrate production to enhance efficiency, reduce costs, and ensure backup sources of concentrate in the event of a supply disruption. On the basis of recommendations from CPS, the Company constructed new supply points or expanded existing plants, often in countries with low tax rates and favorable tariff regimes. CPS then shifted concentrate production away from established plants to these newer (and typically larger) facilities. CPS sometimes shifted production among supply points to reflect its assessments of risks from political unrest and natural disasters (such as earthquakes and typhoons). The Company, which had 52 concentrate plants in the 1980s, has pursued a steady policy of consolidating concentrate production. Between 1986 and 2006 - 28 the Company closed (or shifted substantial production away from) 15 concentrate plants on five continents. During 2007-2009 the Company closed three concentrate plants (in Australia, Morocco, and Peru), leaving it with only 18 foreign supply points as of2010. These closures and production shifts caused the supply points that lost production to suffer a reduction in (or the total elimination of) their manufacturing income. In virtually none of these instances was the losing supply point compensated--by TCCC or by the supply point that took over its production--for this loss of economic value." CPS leadership often shifted production to supply points located in jurisdictions that offered tax or tariff incentives. The Irish supply point, which reported an income tax rate of 1.4% during the period at issue, built a state-of-the-art plant at Ballina in 1999. In 2001 the Company shifted to the Irish supply point, from the Mexican supply point, roughly 50% of the latter's production of concentrate for Coke Red. The Irish supply point then exported that concentrate back to bottiers in the Mexican market. CPS directed numerous other shifts of production to the Irish supply point between 1984 and the tax years at issue. During 2007-2009 "On three occasions between 1962 and 1994, when concentrate production was shifted from supply points owned by Export, Export received some stock in the supply point that took over its production. On no other occasion was the losing supply point compensated when its production was shifted elsewhere. - 29 the Irish supply point had by far the largest production of any foreign concentrate plant, supplying bottlers in more than 90 national markets.¹² On CPS' recommendation the Company in 2008 began construction of a new concentrate plant in Singapore. CPS caused the Irish supply point to ship to Singapore 30 containers of second-hand equipment, including mixing tanks, drum fillers, conveyers, racking systems, pumps, piping, and valves. The new Singapore plant was completed in two years at a cost of about $60 million. The Company consolidated concentrate production in Singapore to gain economies of scale, leverage free trade agreements, and take advantage of tax and tariff incentives. To qualify for these benefits, the Singapore plant had to meet local authorities' targets for production volume. TCCC satisfied these requirements by shifting concentrate production to Singapore from other supply points. The Singapore supply point thereafter supplied concentrate to bottlers in 16 markets that had previously been served by 14 supply points in Asia and elsewhere. The bottlers were responsible for supply chain management from their receipt of concentrate through distribution of finished beverages to wholesalers ¹²Although production shifts involving the Irish supply point show the hand of centralized supply chain management, it is not always obvious what agenda CPS was pursuing. For example, the Irish supply point was the primary supplier of the French market during 1985-1990. In 1990 that market was given to a French supply point, only to be given back to the Irish supply point in 1999. - 30 and retailers. TCCC identified approved suppliers for most raw materials, as for concentrate. But bottlers had responsibility for securing those materials, which included aluminum, steel, plastic, and carbon dioxide. Each bottler generally had a geographic territory within which it was the exclusive supplier of Company products. This exclusivity allowed the bottlers to cultivate an intimate understanding of the thousands of local retailers and wholesalers, anticipate their needs, and build bottling and storage capacity to match. 2. Marketing/Distribution To stimulate demand for its beverages the Coca-Cola System relied in part on consumers' past consumption experiences. But the Company and the bottlers also conducted aggressive advertising and marketing campaigns to keep their products fresh and at the top of consumers' minds. During the tax years at issue the System expended billions of dollars annually for marketing, split about evenly between the Company and its bottlers. TCCC and its bottlers implemented an informal "true up" strategy to ensure that marketing expenses were split roughly 50-50 between them. In the NARTD business, where purchases are often impulse driven, two types of marketing are needed to stimulate new demand: consumer marketing and trade marketing. Consumer marketing, coupled with past consumption experi- - 31 ences, creates in the minds of consumers favorable associations with the product. Trade marketing, which includes efficient distribution and product placement in stores, makes the product readily available to consumers, reinforces their favorable associations with the product, and stimulates purchase at the point of sale. a. Consumer Marketing The Company took principal responsibility for consumer marketing, that is, advertising and other messages directed toward the individuals who were the final consumers of its products. The Company aimed to create demand by maintaining and exploiting its brands. The Company's most important brand was Coca-Cola, including Coke Red, Diet Coke, Coke Zero, and their lines and extensions (collectively Trademark Coke). Trademark Coke products accounted for more than 50% of the Company's profits. The Company's core brands consisted of Trademark Coke, Fanta, Sprite, and their lines and extensions. These core brands accounted for about 85% of total net revenue and 86% of total profits for the seven supply pomts at issue. Consumer marketing began with TCCC, which created a uniform system for all global branding. With a few exceptions (mainly in Canada) TCCC was the registered legal owner of all worldwide trademarks related to Trademark Coke, Fanta, Sprite, and their lines and extensions. For Trademark Coke products these trade- - 32 marks covered the "Spencerian script," the dynamic ribbon, the red-and-white color palette, and the contour bottle shape. TCCC sustained and perpetuated each global brand by maintaining rigorous standards for its core visual design elements and messaging. These standards provided detailed guidance that ensured a consistent look and feel for all global marketing. TCCC maintained for each global brand a "brand vision and architecture" that articulated what the brand aspired to stand for in consumers' minds. The brand vision included a visual identity system (VIS), a brand strategy, core design principles, and a detailed marketing strategy. TCCC specified requirements concerning the use of existing designs (e.g., the Coke logo and the Spencerian Script) as well as instructions for the creation of new materials. TCCC uploaded all permissible designs and model photographs to an online database called the "Design Machine." It provided instructions concerning appropriate advertising copy (e.g., how to write an ad "in the Brand Voice") and imaging (e.g., how photographs should display condensation and ice). Major deviations from these standards required explicit review and approval by TCCC. Global marketing campaigns were designed by TCCC in Atlanta, with input from ServCo personnel in various markets. A global campaign package typically included a brand representation accompanied by suggested visual images and ad- - 33 vertising messages. Each campaign had a "core creative idea" or "underlying conceptual structure" that expressed what the brand stood for in the marketplace. Some global campaigns, incorporating TV ads and memorable tag lines, were launched to "refresh" Coke Red and other global brands. These included the "Coke Side of Life" campaign, launched in 2006, and the "Open Happiness" campaign, launched in 2009. The "Coke Side of Life" campaign ran in 200 national markets that together represented 85% of worldwide Coke Red volume. Other global campaigns centered on the Company's sponsorship of major sporting events, including the Olympics and the World Cup. TCCC negotiated the financial terms of these sponsorships and set parameters for recommended slogans, graphics, and visual images. TCCC then created a package of promotional and advertising material that could be used on a global scale in association with these events. One witness estimated that this toolkit gave local marketers "70% to 80% of the solution" but allowed them space to customize the campaign to their local audience. TCCC made these global campaign materials available to its marketing personnel around the world. The local marketers, nearly all of whom were employed - 34 by ServCos,¹³made the initial decision (in conjunction with bottlers) whether to "activate" a particular campaign in their marketplace. Assuming an affirmative answer to that question, they worked to customize the global campaign to meet local conditions. A global ad would be customized (for example) by hiring local actors who spoke the local language, substituting songs and music that would be popular in that country, and avoiding themes and images that might offend local cultural and religious sensitivities. Marketing personnel in the ServCos generally took responsibility for marketing material that promoted local brands (such as Kuat, a Brazilian beverage derived from an Amazon fruit). Although TCCC generated material for most global campaigns, ServCos often played a leading role in regional marketing efforts. Under the "charter model," a BU with a special interest in a particular subject or event often developed platform material, including TV ads and point-of-sale promotions, that would eventually be shared with other BUs. A campaign focused on the Christmas holiday, for example, might be generated by the Mexican ServCo; a campaign focused on Ramadan might be generated by the Egyptian ServCo; a campaign focused on Latin American teens might be generated by the Brazilian ServCo; and a campaign ¹³Foursupply points employed no marketing personnel whatever. The Brazilian, Egyptian, and Chilean supply points employed an average of 44, 15, and 13 marketing-designated employees, respectively. - 35 focused on a major soccer event might be generated by the ServCo in the host country. In such cases TCCC would appoint a charter team, handle negotiations with major stakeholders, and coordinate efforts between the charter team and other BUs desiring to use the material. Those other BUs would then adapt the charter campaign to suit their local needs. TCCC provided local marketers with various tools to help them craft local ads and improve local decision-making. The Knowledge & Insights unit (K&I) in HQ performed data analysis about consumer behavior and made these data available to bottlers and ServCos (e.g., by disseminating monthly "brand health performance" reports to local managers). Customized marketing designs and tactics were uploaded to the Design Machine. Spark City, created in 2007, was a compilation of various training and information portals including Marketing Xchange, CSD Portal, and "the DNA of Marketing." These portals supplied local marketers with access to an extensive database of processes and standardized frameworks for marketing each of the Company's global brands. TCCC provided ServCos and bottlers with market research tools to help them gauge the success of their advertising efforts. K&I created protocols and metrics for measuring changes in "brand equity," enabling marketers to assess local consumers' brand awareness and the effectiveness of advertising messages. - 36 TCCC packaged these metrics into user-friendly tools such as the Marketing Variance Analysis, Beverage Brand Barometer, and Consumer Beverage Landscape. These tools were implemented throughout the Company's global distribution network, allowing ServCos and bottlers to spot trends discernible only from a global perspective. TCCC also provided tools and frameworks for training local marketers. The Integrated Marketing Communications unit (IMC) at HQ developed the curriculum for training marketers around the world. IMC maintained an online learning platform--Coca-Cola University--that was used by ServCos to train marketers in the field. IMC also supervised the Company's contracts with the Olympics, FIFA (which organizes the World Cup), and the National Basketball Association. The ServCos generally hired third-party consultants (such as Nielsen) to perform local market research and testing. They delegated to outside creative firms the production of consumer advertisements. Outsourced functions included hiring actors, selecting music, filming commercials, providing voiceovers for global marketing materials, and purchasing advertising time in local media. Outside consultants often convened focus groups to assess whether a new ad hit the desired spot. TCCC maintained a list of approved agencies (such as Ogilvy) with - 37 whom it had negotiated master service agreements. Local managers generally used approved agencies but were permitted to use others if necessary. Consumer marketing budgets were set in the Company's annual business plans. Following intense negotiations with local bottlers, each BU proposed a marketing budget on a TCCC-mandated template. That proposal was reviewed by the OG and ultimately approved by HQ in Atlanta. Local management generally pegged direct marketing expenses (DME) to grow in line with gross profit targets. b. Trade Marketing and Distribution The bottlers took principal responsibility for trade marketing, that is, communications and other efforts directed toward (and undertaken through) the retail establishments (supermarkets, mom-and-pop stores, bars, and restaurants) that sold the Company's beverages to consumers. Trade marketing, often called "push marketing," increased consumers' awareness of the Company's brands and stimulated consumer demand. It covered a wide range of activities designed to ensure that the Company's products were always "within arm's reach of desire." Bottlers expended efforts to acquire and retain retail customers, sometimes by creating loyalty programs. To ensure that the Company's products were continuously available to consumers, bottlers had to manage inventory and ensure timely delivery. Bottlers were responsible for securing advantageous product placement - 38 in stores, arranging point-of-sale promotions (such as floor decals and end-of-aisle displays), and offering in-store samples of new products. Bottlers managed most trade promotions (including coupons, product discounts, and digital redemption codes), which often keyed off holidays and sporting events. Bottlers often integrated these retail promotions with the Company's global sponsorship activities and consumer marketing themes. In Europe, where third-party distributors delivered most beverages to retailers, bottlers sent merchandisers into stores to assure proper product placement and point-of-sale displays. Responsibility for managing relationships with retail customers was divided among TCCC, the ServCos, and the bottlers. For historical reasons, the relationship with McDonald's was managed directly by the Company's chief operating officer at HQ. TCCC's Global Customer and Commercial Leadership group maintained relationships with the system's top 50 other customers, including WalMart, Tesco, and 7-Eleven. Management of smaller multinational accounts was generally shared between the bottlers and marketing personnel in the ServCos. The bottlers had sole responsibility for managing most customer relationships at the country level. Bottlers created marketing plans for key accounts, which aligned consumer marketing with point-of-sale marketing. Bottler field service representatives, who - 39 lived in the residential communities where retailers were located, formed close relationships with mom-and-pop stores, enabling them to suggest marketing innovations that included coolers, plasma TVs, and end-of-aisle displays. None of the supply points--apart from the Brazilian and Chilean supply points--had any staff devoted to sales. Through the ServCos TCCC supplied bottlers with a variety of tools to assist them with in-store marketing. Marketing professionals at HQ designed most point-of-sale materials; by accessing the Design Machine, bottlers could secure these images and photographs, then customize them for local consumption. The "picture of success," the apparent precursor to "Right Execution Daily" (RED), supplied an ideal image of how a particular store should look to maximize sale of the Company's beverages. RED, which was developed by Coca-Cola FEMSA in collaboration with the Company, provided bottlers with recommended point-ofsale materials, suggested price points, inventory management tools, and metrics for measuring the quality of bottler execution against set standards. To encourage impulse purchases--which provided much higher margins than purchases for future consumption--bottlers invested in coolers that were strategically placed in retail outlets. These investments were significant: At one point, coolers represented about one-third of CCE's annual capital expenditures. - 40 These coolers were typically used to chill and display the Company's beverages exclusively. About two-thirds of the System's global sales were for immediate consumption, and coolers were essential in stimulating impulse purchases in warmer climates. The bottlers owned all Coca-Cola coolers in retail stores. Larger cooler capacity became necessary as the Company's product line grew to include many non-CSD beverages. To incentivize investment in coolers, the Company provided financial support to bottlers through its "Jump Start" program, under which it paid a percentage of the coolers' cost. When negotiating marketing budgets with the Company, bottlers generally viewed their costs of purchasing coolers (net of the Company's subsidy) as marketing expenses on their side of the ledger. Bottlers also negotiated financial incentives to push sales. Price promotions for the Company's beverages were a sensitive subject, and such decisions were generally made jointly by bottlers and ServCo marketing personnel. For large retailers with greater market power, relationship managers negotiated discounts on targeted product lines. Bottlers regularly engaged in trade promotions to encourage retailers to give the Company's products optimal shelf space. For restaurants and mom-and-pop retailers, bottlers promoted Coca-Cola products by supplying in-kind benefits, such as coolers and Coca-Cola-branded awnings and napkins. - 41 Bottlers reflected their marketing expenses in different ways, depending on local accounting conventions. Such expenses might be shown as "marketing deductions from revenue" or as "direct marketing expenses," or they could be included among "selling, delivery, and administrative" costs. However characterized, they were significant. During 2008 CCE had "marketing deductions from revenue" of $2.5 billion, an amount equal to 11.5% of its net revenue. Other bott1ers showed marketing deductions as high as 18% of their net revenue. III. Contractual Relationships Understanding the rights and obligations of entities within the Coca-Cola System requires an examination of both written contracts and the parties' course of dealing. TCCC operated synergistically with its supply point and ServCo affiliates, and it had aligned financial interests with its independent bottlers. The parties often did not spell out the details of their relationships in formal contracts but left these details to be governed by mutual understanding. In some cases, System participants operated under outmoded contracts that included terms inconsistent with their actual behavior. A. Supply Point Agreements TCCC was the ultimate parent of the supply points, and the contracts it executed with them often seem terse and incomplete. (Indeed, petitioner could not lo- - 42 cate any written agreement with the Egyptian supply point.) The agreements that existed during 2007-2009 reflected an amalgamation of several (often overlapping) prior contracts and amendments thereto. Over time the text of most contracts converged, making it possible to generalize about the parties' rights and obligations. We discuss below the prevailing terms of these agreements, noting deviations where appropriate. 1. Rights and Obligations The agreements granted the supply points the rights to produce and sell concentrate in accordance with TCCC's specifications. The supply points were authorized to use TCCC's intangible property in connection with their production and selling rights. They generally lacked any contractual ownership interests in TCCC's trademarks or other intangible property, and they owned little or no intangible property of their own.¹4 ¹4Atlantic,which owned the Costa Rican and Swazi supply points (as disregarded CFCs) and the Egyptian and Irish supply points (as branches), was the registered owner of some trademarks in some jurisdictions with respect to Canada Dry, Crush, and Dr. Pepper beverages. Atlantic was also the registered owner of the Schweppes and Cosmos trademarks in most jurisdictions. But none of these supply points had any ownership interest (direct or indirect) in any trademarks relating to the Company's core brands. The Brazilian supply point at one time had rights to sublicense TCCC's trademarks to select bottlers. See infg p. 46. - 43 a. Production and Sale of Concentrate Supply point production rights consisted of the right to produce intermediary "Products," variously defined as "concentrate," "syrups," and/or "beverage base." We use the terms "Products" and "concentrate" interchangeably. The agreements distinguish "Products" from "Beverages," which were produced by bottlers using Products as an ingredient. At no time did any supply point produce finished beverages.¹5 The supply points agreed to undertake production of concentrate in accordance with TCCC's standards and instructions. TCCC ensured compliance with its standards by reserving the right to inspect "the methods of preparation and packaging on the premises of [the supply point] at all reasonable times." Compliance with TCCC's standards required the supply points to obtain secret ingredients, formulas, and specifications from TCCC. Most contracts expressly granted the supply point the right to purchase secret ingredients, but no agreement specified any maximum price that TCCC could charge therefor. Most of the agreements included a covenant requiring the supply point to protect the secrecy of TCCC's production know-how: ¹5TCCC'sagreements with its Irish and Mexican supply points included a provision nominally authorizing them to manufacture finished beverages. In practice neither they nor any other supply point ever did this. - 44 [The supply point] shall not at any time reveal any information with reference to the formulae or ingredients of the Products without the prior written approval of the Company, and shall keep confidential all such formulae, specifications, standards and instructions. The contracts also authorized the supply points to sell concentrate. As a rule, however, they were permitted to sell concentrate only to bottlers that had an existing contract with TCCC.¹6 The contracts with the Mexican, Chilean, and Costa Rican supply points permitted them to sell concentrate only as "requested by the Company and at prices set and/or revised by the Company." The contracts themselves did not specify any formula or guidelines for pricing concentrate; we discuss that subject in connection with TCCC's agreements with its bottlers. See infä pp. 61-66. Each supply point agreed to "keep a full and accurate account" of "all Products sold by it" and to make that account and relevant invoices available for inspection by TCCC "at all reasonable times." b. Trademarks Except in the case of the Brazilian affiliate, the agreements granted the supply points no rights or ownership interest in TCCC's trademarks. The agreements identified TCCC as the "owner" or "registered proprietor" of the trademarks, and ¹6TheIrish and Swazi supply points were also permitted to sell concentrate to "other parties authorized by the Company to use the Products and the Trademarks in connection therewith." - 45 TCCC expressly "reserve[d] the right to control all things and acts related to or involving the use of [the] Trademarks." The supply point agreed "not to do any act or thing which may impair the ownership and protection" of the trademarks owned by the Company. The supply point, in short, received only a limited right to use the trademarks in connection with its production and sales activities. Unlike the other supply points, the Brazilian supply point was originally allowed to contract with bottlers, and to that end it was permitted to sublicense the use of TCCC's trademarks.¹7 The Brazilian supply point was authorized, with "the approval of the Company and * * * Export," to make contracts with bottlers "in which the right to bottle the Beverage is granted, but only in conformity with the specifications, formulae, instructions and standards given from time to time by the Company." Upon termination of the Brazilian supply point agreement, all contracts and sublicenses executed with bottlers involving the use of the Company's trademarks were to "vest and inure to the benefit of the Company." The Brazilian supply point explicitly acknowledged that a sublicense "will not in any way affect ¹7TCCCand the Brazilian supply point executed a number of agreements (and amendments thereto) beginning in 1963. The terms of these agreements are mutually inconsistent in some respects. In the text we express our understanding of the salient terms prevailing during the tax years in issue. - 46 the property rights of the Company concerning its * * * trademarks, which continue to be the Company's exclusive property." The Brazilian supply point was the only supply point that executed agreements sublicensing to bottlers the use of TCCC's trademarks. In each case, TCCC was listed in the agreement as a "Parte Interveniente" or "intervening party," thus acknowledging its consent to the sublicense. In October 2007 TCCC executed new agreements with all bottlers that held outstanding contracts showing the Brazilian supply point as a counterparty. These new agreements, which show TCCC as the sole counterparty, appear to have displaced those earlier agreements and thus effectively canceled the Brazilian supply point's sublicensing authority. 2. Term Length and Exclusivity The Brazilian supply point agreement ran indefinitely but could be terminated by TCCC's unilateral action or either party's breach of contract. The other supply point agreements had an initial 12-month term (except the Costa Rica agreement, which had an initial two-month term), and all of them renewed automatically for one-year periods absent prior notice from TCCC or the supply point. Agreements with three of the supply points (Mexico, Swaziland, and Ireland) provided that, during any 12-month term, either party could terminate the agreement, for any reason, upon giving 30 or 60 days' notice to the other party. - 47 No supply point was granted exclusive territorial rights. Each agreement described a territory--usually the supply point's domestic market--in which the supply point was expected to operate.¹8 But during the tax years at issue (and for many years previously) no supply point limited its concentrate sales to the geographical territory in which its manufacturing facility was located. Supply points regularly sold concentrate to bottlers in other supply points' domestic markets. And due to the Company's aggressive consolidation of concentrate production, the seven supply points during 2007-2009 sold concentrate to bottlers doing business in 150 different countries and autonomous regions (such as Hong Kong). No supply point was granted any right, express or implied, to guaranteed production of Coca-Cola products. The record reflects dozens of production shifts among supply points between 1980 and 2011. In hardly any cases was the entity that lost production compensated--by TCCC or by the supply point that took over its production--for the loss of income it thus suffered. 3. Remuneration Although TCCC used the 10-50-50 method to compute royalties payable by the supply points, it never incorporated any aspect of that formula into its written ¹80nlythe Swazi agreement described a multinational territory, covering much of sub-Saharan Africa. In practice, bottlers in that region purchased concentrate from the Irish and Egyptian supply points as well. - 48 supply point agreements. Agreements with the Chilean and Costa Rican supply points included no discussion of payment whatever. The Mexican supply point agreement specified a royalty computed as a percentage of operating profit. The Irish and Swazi supply point agreements specified a royalty computed as a percentage of concentrate sales. The Brazilian supply point had agreements that inconsistently recited a one-time royalty of $100 (this version was registered with the Brazilian trademark office) and an ongoing de facto royalty embedded in the cost of ingredients purchased from TCCC. It does not appear that TCCC or the supply points paid much if any attention to these remuneration clauses. Several supply points paid petitioner a headquarters fee, dubbed "pro-rata." To calculate these payments petitioner quantified all HQ expenses that supported multiple foreign affiliates." Petitioner then allocated these expenses to participating supply points under a complex formula, subject to the proviso that no supply point would be allocated pro-rata in excess of the amount that would be tax-deductible in its local jurisdiction. The Brazilian and Egyptian supply points did not participate in the pro-rata regime at all. The Irish supply point paid about $1 billion, and the other four sup- "Headquarters expenses that supported a specific foreign affiliate were generally excluded from pro-rata and charged directly to that entity. - 49 ply points collectively paid about $500 million, of pro-rata during the tax years at issue. Petitioner credited all of these payments against the supply point's royalty obligation under the 10-50-50 method, as had been permitted under its 1996 closing agreement with the IRS. The details of the pro-rata arrangement were not spelled out--and sometimes were not even mentioned--in the supply points' agree- ments with TCCC. B. Service Company Agreements TCCC contracted (typically through Export) with at least 60 ServCos doing business throughout the world. The ServCos performed local consumer marketing and supervised relationships with local bottlers. TCCC or Export generally executed with each ServCo a written agreement employing a standard template that was modified slightly over the years. Neither party disputes that these contracts reflected arm's-length terms and compensation. 1. Standard Terms Virtually all of the agreements run between the ServCo and TCCC or Export.2° The standard template for these agreements included a boilerplate pream- 2°The only apparent exception to this rule involved the Costa Rican supply point, which had agreements with eight ServCos through the end of 2009. One of its counterparties, the Costa Rican ServCo, subcontracted to provide services to the Ecuadorian ServCo and to receive services from the Colombian ServCo. - 50 ble, a generic description of services provided, and a confidentiality clause. The preamble typically stated that TCCC or Export engaged the ServCo because of its "expertise and know-how on the production and marketing of the Beverages, including sales, advertising, promotion and business development." Most agreements specified a one-year term, which was renewed indefinitely absent notice from either party of its intent to terminate. The ServCo typically agreed to supply services that included advice regarding "marketing, advertising and sales promotion." Most agreements executed after 2006 stated explicitly that the ServCo would discharge these tasks by "working with third party marketing service providers." ServCos agreed to make recommendations as to whether the Company should participate in (i.e., make a financial contribution to) bottlers' trade marketing expenditures, and to perform research concerning "regulatory, technical and marketing conditions" that might affect beverage sales in the local jurisdiction. They also agreed to perform a variety of computer-related and other back-office functions. The standard agreement included two remuneration clauses, which together provided ServCos with cost-plus compensation. The first clause generally stated that the service recipient (typically Export) would "reimburse or cause to be reimbursed at cost the expenses incurred by * * * [the ServCo] attributable to the ser- - 51 vices under this Agreement." Generally speaking, expenses were netted against any income of similar character before being reimbursed. Reimbursable expenses were determined in accordance with local accounting principles and generally excluded any income taxes incurred by the ServCo. The second remuneration clause stated that the ServCo would be paid a markup on certain expenses described in the first clause. These percentage markups varied among the agreements from a low of 5% to a high of 12%, with the average markup being between 6% and 7%. These marked-up expenses, when charged to Export or other service recipient, were typically denominated "fees and CommiSSiOnS." Most agreements provided that the ServCo would be paid no markup on "direct marketing expenses," which included amounts paid to third-party marketing professionals such as advertising agencies, media companies, and creative design firms. The effect of this provision was generally to deny the ServCo any markup on third-party marketing costs, which typically constituted its largest category of expenses. For reasons not explained in the record, this provision is absent from many Latin American ServCo agreements. In 2008 the Company contracted with Ernst & Young (E&Y) to analyze the services provided by ServCos to Export. E&Y agreed to prepare a "master plat- - 52 form document" that would provide a basis for transfer pricing reports that ServCos were required to file with their local taxing jurisdictions. E&Y ultimately produced two master platform documents from which it prepared about 30 local transfer pricing reports. E&Y concluded in these documents that the cost-plus compensation outlined in the ServCo agreements was within an arm's-length range. In support of this conclusion E&Y noted that TCCC controlled the ServCos' annual budgets, provided major inputs to their marketing efforts, and supplied final approval for all business plans. At trial an E&Y partner testified that all of these transfer pricing reports "were written based on the [ServCo] contract[s] and the cost-plus nature of the service provided" by the ServCos, which he described as "the exact standard required [under the] transfer pricing analysis paradigm in effect in every country at the time." 2. Other Provisions Shortly before the tax years in issue, several new provisions were introduced into ServCo agreements, chiefly in Europe. Petitioner attributed these variations to local tax planning undertaken by the Company. Many agreements executed after 2003 include a new clause explaining the level of risk assumed by the ServCo and clarifying the ownership of assets gener- - 53 ated by its marketing efforts and those of the third-party marketing professionals with whom it contracted. A typical version of the clause read as follows: ServCo acknowledges that it does not take entrepreneurial risk in developing marketing concepts because the marketing advice provided by ServCo is within the strategic guidelines established by Export for the brands. ServCo also acknowledges that any marketing concepts developed by third party vendors are the property of Export. A variation of the first sentence, appearing in the more recent agreements, states that the ServCo assumed no entrepreneurial risk "because the marketing is contracted for by ServCo with third party service providers and is within [TCCC's] strategic guidelines." Petitioner's witnesses testified that this reservation clause was added to the agreements in order to minimize the risk that the ServCo would be treated by local tax authorities as creating, in that country, a "permanent establishment" of TCCC or a foreign supply point. Whatever its purpose, this reservation clause ultimately appeared in 29 of the 37 ServCo agreements executed after 2004. The Company added another layer of tax planning to agreements executed with ServCos in the EU. Those companies were generally subject to value added tax (VAT) in their home country and were required to include VAT on their in- voices to Export (a U.S. company). Export would generally be eligible for refund of the VAT, but such refunds could often be delayed for months or years. - 54 To mitigate this problem Export internalized its intra-EU service transactions by interposing a Belgian affiliate, S.A. Coca-Cola Services N.V. (CCS), between it and other ServCos in the EU. Export executed a "master service agreement" with CCS, and CCS executed subcontracts with the ServCos doing business in the EU. Steven Whaley, the Company's general tax counsel during 1996-2008, testified that the interposition of CCS between the ServCos and Export allowed ServCos to "zero rate" their services, thus avoiding the need to file VAT refund claims. Export's master service agreement with CCS generally resembled TCCC's standard ServCo contract. However, CCS was allowed no markup on the fees it paid to the local ServCos for their services. And the master agreement included a robust reservation clause concerning ownership of intangible assets generated by the local ServCos' marketing efforts and by the Belgian R&D unit: ServCo [CCS] * * * acknowledges that any marketing concepts developed by third party vendors or any affiliate of Coca-Cola that provides services to ServCo * * * are the property of EXPORT. * * *. Any intangibles arising out of the research and development activities of ServCo are the property of EXPORT. 3. Invoicing Petitioner employed a complicated (and not entirely transparent) system to make inter-company charges on account of services rendered by the ServCos. - 55 Most ServCo agreements stated that the ServCo "shall invoice" the service recipient--typically Export--in the former's local currency. The agreements specify no deadlines, and it is unclear whether any actual invoices were ever prepared. In practice, BU leadership and finance personnel initiated inter-company charges that placed on the books of each supply point, as they determined to be appropriate, an allocated portion of the amounts that the ServCos (including CCS) charged to Export. Supply points were thus charged an allocated share of the ServCos' "fees and commissions" (marked-up costs) plus an allocated share of the ServCos' third-party marketing expenses. Petitioner has pointed to no document in the record by which any supply point (except perhaps the Irish supply point) explicitly agreed to bear financial responsibility for these charges.2¹ 2¹Therecord includes a January 1, 1998, agreement whereby Atlantic agreed, on behalf of the Irish supply point (its branch), "to make available funds to * * * [Export] for reimbursement of the expenses of the ServCos and for payment of the service fees charged by the ServCos." The agreement also stated that "Atlantic shall act as paymaster for defraying expenses such as marketing, advertising and promotional expenses incurred or to be incurred within the territory serviced." There is no evidence establishing that this agreement, which had a oneyear term, remained in effect during 2007-2009. As petitioner notes, the agreement "is less than two pages long and [is] composed largely of WHEREAS clauses." Petitioner acknowledges that the agreement "does little to explain * * * [the parties'] relationship or Atlantic Industries' role" and asserts that it "was not a valid contract because it lacked consideration." - 56 The method for allocating ServCo fees and DME to supply points is not explained in any document. Petitioner's witnesses testified that allocations were based on "the matching principle," i.e., on the principle that expenses should be matched to revenues. In theory, a supply point was supposed to be allocated fees and DME charged by a particular ServCo depending on how much concentrate that supply point sold to bottlers in the geographic market(s) for which that ServCo was responsible. Thus, if a supply point sold concentrate to bottlers in 30 geographic markets, it might be allocated fees and DME charged to Export by 30 separate ServCos. In practice, the allocations of "fees and commissions" and DME to the seven supply points, as percentages of their gross revenue, varied widely. See infia pp. 74-75. The record does not explain these discrepancies. One way or another, most ServCo charges eventually found their way onto the books of one or more supply point. But there is no evidence that the supply points received invoices for these services, reviewed the propriety of the amounts they were charged,22 or had any role in selecting or evaluating the services for 22Petitioner cites only one instance of a supply point's exercise of review over ServCo charges billed to it. In that case the supply point had been billed for charges from the Russian ServCo even though it sold no concentrate in Russia. As one witness noted, this "really stood out and caused them to question." - 57 which they were made financially responsible. In essence, the supply points were passive recipients of charges that HQ and BU leadership put on their books. C. Bottler Agreements Petitioner executed formal agreements with hundreds of Coca-Cola bottlers throughout the world. In virtually all of the agreements TCCC is shown as the legal counterparty to the bottler.23 These agreements, like the supply point agreements, were based on templates that reflected standard terms and conditions. The principal variations among the bottler agreements involved the length of the contract term, notice periods, choice of law, and the exclusivity of rights granted. Unlike the supply point agreements, TCCC's contracts with its bottlers explicitly granted them long-term and generally exclusive rights to produce and sell TCCC's products within their respective territories. 1. Rights and Obligations a. Production and Sale of Finished Beverages Through the bottler agreements TCCC licensed bottlers to use its trademarks and other intangible property to produce, sell, and distribute finished bever- 23As noted supra pp. 45-46, the Brazilian supply point was shown as the counterparty in certain agreements executed with Brazilian bottlers before October 2007, with TCCC appearing as a "Parte Intervenente." - 58 ages.24 Like the supply points, bottlers covenanted to adhere strictly to TCCC's production standards and to grant TCCC access to their facilities for periodic quality-assurance inspections. Like the supply points, bottlers were required to buy in- gredients from TCCC affiliates or TCCC-approved suppliers. And like the supply points, bottlers enjoyed no right to purchase these inputs at any predetermined price. Whereas the supply points were permitted to sell concentrate only to TCCCapproved bottlers, bottlers had complete freedom to sell finished beverages to any wholesaler or retailer within their respective territories. The bottler agreements granted TCCC the right to review and approve bottlers' annual business plans, which were usually developed in coordination with the local BU. Once a business plan was approved by HQ in Atlanta, the bottler agreed to "prosecute diligently" the details of the plan and to update TCCC regularly on plan implementation (e.g., by submitting sales reports in a format specified by TCCC). Bottlers also made softer commitments, e.g., "to satisfy fully the demand for each of the Beverages within the [bottler's] Territory" and "to spend such funds for the advertising and 24Although some bottlers were authorized to produce "syrups," such syrups were used by the bottler internally in the course of producing finished beverages. Bottlers invariably covenanted not to sell syrups or concentrate to third parties. - 59 marketing of the Beverages as may be required to maintain and to increase the demand * * * in the Territory." b. Trademarks Bottlers had limited trademark rights similar to those granted to the supply points. While bottlers could use TCCC's trademarks in connection with the production, sale, and distribution of finished beverages, they expressly acknowledged that TCCC owned the trademarks together with any goodwill generated by the bottiers' use of the trademarks. TCCC reserved the right to control most aspects of trademark use, and bottlers covenanted to seek approval from TCCC for most advertising, promotions, or other marketing that employed these trademarks. In practice the local ServCo generally supplied such approval. 2. Term Length and Exclusivity The specified term of most bottler agreements was between five and ten years. The largest independent bottlers, including CCE, Coca-Cola FEMSA, Hellenic, and Coca-Cola Amatil (which did business in Australia), had agreements with ten-year terms. Explicit approval by TCCC was required to renew a bottler agreement at the expiration of its stated term; the agreements generally precluded automatic renewal based on tacit approval. As with supply point agreements, TCCC reserved rights that allowed it to terminate bottler agreements on no more - 60 than a few months' notice. Bottlers would have preferred longer term contracts granting TCCC more limited termination rights, but TCCC consistently refused to agree to such modifications. In practice, the mutual dependence between the Company and its bottlers ensured that bottler agreements were almost always renewed. When a bottler performed badly or encountered financial difficulties, TCCC's solution typically was not to terminate the bottler, but to acquire it, put it into the "bottler hospital," and supervise its operations from Atlanta until it had recovered its footing financially and operationally. See supra pp. 17-18. TCCC would then divest the bottler to new owners with its bottler contract intact. Many of the Company's major bottlers were public companies required to disclose financial information in annual reports and public filings. CCE, one of the top three Coca-Cola bottlers, described its relationship with TCCC as follows: While the [bottler] agreements contain no automatic right of renewal * * * we believe that our interdependent relationship with TCCC and the substantial cost and disruption to that company that would be caused by nonrenewals ensure that these agreements will continue to be renewed. For this reason most major bottlers, including CCE, Coca-Cola FEMSA, and Hellenic, assigned to their bottling contracts an indefinite useful life for accounting and financial statement purposes. - 61 Bottler agreements also differed from supply point agreements in the exclusivity of the rights they granted. Supply points enjoyed no exclusivity whatever: They were always at risk of having TCCC shift their production to another supply point, which could then sell to bottlers in their home country. By contrast, TCCC's agreements with most bottlers included a geographically defined market in which the bottler was granted exclusive rights to produce and sell beverages. The legal landscape was different in the EU and the European Economic Area, where the Treaty of Rome guaranteed the free movement of goods among member states. For that reason, explicit exclusivity clauses are generally absent from European bottler agreements. But in practice bottlers respected each other's notional territories and rarely attempted to sell into them. As explained by John Brock, a longtime industry veteran who formerly led CCE, there was within the EU "an implied geographic exclusivity, but it was not spelled out." 3. Remuneration The bottlers remunerated the Company through the price they paid for concentrate. That price in effect bundled all of the Company's valuable inputs into a single bill, ostensibly for concentrate. By paying this bill, bottlers secured not only the physical beverage base, but the entire package of rights and privileges they needed to operate efficiently as Coca-Coca bottlers. This package included - 62 the right to use TCCC's trademarks, access to TCCC-approved suppliers, access to critical databases and marketing materials, and the expectation of ongoing consumer marketing support from TCCC and the ServCos. TCCC reserved the unilateral right to set the concentrate price, which in theory enabled it to determine the bottler's profitability. But "in the real world," as petitioner notes, "concentrate prices were established through local negotiations." These local negotiations "aimed to equitably share System operating profit," i.e., the total pre-tax operating profit accruing to the Company and the bottler from that bottler's sales of the Company's beverages. Generally, the parties' goal was to achieve something like a 50%-50% split of the System profit. In practice, the division usually ranged between 45% and 55% in favor of one party or the other. The bottler might negotiate for a share near the high end of this range if (for example) it faced economic headwinds or expected to incur large capital expenditures. By using estimates of future revenues and expenses contained in budgets and business plans, TCCC and the bottler could negotiate a concentrate price that was expected to deliver the intended share of System profit to each party. Adjustment to the concentrate price was a major undertaking that required ultimate approval by HQ in Atlanta. An officer of one BU described it as "the - 63 mother of all negotiations with a bottler." Such negotiations were typically undertaken only once every few years. Between those revisions, unexpected fluctuations in consumer demand, local inflation rates, or currency exchange rates could occur. If those risks materialized, use of a fixed concentrate price could throw off the intended division of System profit. TCCC and its bottlers devised two solutions to this problem. One solution was some form of variable pricing. In Latin America and Eastern Europe in particular, bottler agreements increasingly adopted "incidence pricing," whereby the concentrate price was initially determined at a fixed price and then "trued up" to reflect actual sales (incidences) when more complete financial data became available. In Western Europe, where currencies and inflation rates were generally less volatile, TCCC and its bottlers employed a subtler version of variable pricing, keyed to bottlers' prior-year sales or projected current-year revenues. A second solution was to adjust, as compared with the original business plan, the marketing expenditures that the Company and its bottlers were going to make. For example, if the System profit split moved unexpectedly in the Company's direction, it might agree to reimburse the bottler for certain trade marketing expenses. Or the Company might agree to increase its consumer marketing expenses in the bottler's territory, which would be expected to increase the bottler's - 64 sales and profits. In 2005, for example, TCCC appeased calls by Latin American bottlers for lower concentrate prices by (among other things) agreeing to reinvest an additional 20% of concentrate revenues in mutually agreed marketing projects. Conversely, if the System profit split moved unexpectedly in the bottler's direction, the Company might reduce its support for local trade marketing, or the bottler might increase its marketing expenditures, e.g., by accelerating placement of coolers in retail stores. Generally speaking, bottlers paid the full concentrate price to the supply point(s) from which they purchased concentrate. In some markets, however, the Company engaged in "split invoicing." Under this practice, the supply point invoiced the bottler for a portion of the concentrate price, and the local ServCo issued a separate invoice to the bottler for the remainder of the concentrate price. Where split invoicing occurred, the ServCo wound up receiving a portion of the revenues that the supply point would otherwise have received as payments for concentrate. "Split invoicing" was used chiefly with bottlers in countries that were susceptible to high inflation or exchange-rate volatility. By having the bottler direct a portion of the concentrate price to a ServCo in the same country, the Company - 65 was able to mitigate the effects of currency controls, delayed VAT refunds, and related fiscal problems.25 ServCos used their "split invoicing" revenues to offset expenses that otherwise would have been reimbursed (with markup where applicable) by Export under a ServCo agreement. The Brazilian, Chilean, and Irish supply points, which supplied concentrate to the bottlers in question, lost revenue as a result of this practice. But they also avoided having the corresponding expenses of the ten ServCos charged to their books. During the tax years at issue, the total "split invoicing" revenues received by the ServCos and the expenses they allocated to these revenues were as follows: Affected supply point Revenue recipient Total revenue (2007-2009) Total expenses Markup on total (2007-2009) expenses (%) Brazil Venezuelan ServCo $445,752,031 Colombian ServCo 227,660,409 $158,607,901 176,822,070 181.04 28.75 Ireland Mexican ServCo Turkish ServCo Moroccan ServCo Bulgarian ServCo 420,224,666 84,028,435 70,298,612 7,183,562 424,563,141 45,405,027 66,359,121 8,138,222 -1.02 85.06 5.94 -11.73 Chile Peruvian ServCo-1 Peruvian ServCo-2 Ecuadorian ServCo Bolivian ServCo 69,365,968 15,572,164 49,051,552 7,053,548 58,558,956 10,730,629 46,745,900 5,168,272 18.45 45.12 4.93 36.48 1,396,190,946 1,001,099,239 39.47 Total 25Ten ServCos received "split invoicing" revenues during 2007-2009: two ServCos in Peru and the ServCos in Venezuela, Bolivia, Ecuador, Colombia, Mexico, Bulgaria, Turkey, and Morocco. - 66 The markups that ServCos received from bottlers under split invoicing were significantly higher (on average) than the markups ServCos normally enjoyed under their contracts with Export. The average markup under Export's contracts was 6% to 7%. And this markup generally did not apply to amounts ServCos paid for third-party marketing services. M supra p. 51. As shown in the table above, the average markup ServCos received under split invoicing was almost 40%. Five of the ServCos had agreements with the bottlers from which they received split-invoicing payments. These agreements required the ServCo to provide the bottler with services resembling those specified in contracts that ServCos typically executed with Export. The agreements executed by the Venezuelan and Ecuadorian ServCos specified no compensation formula. The agreement between the Mexican ServCo and its bottler (Coca-Cola FEMSA) called for a 5% markup on expenses other than DME. The agreement between the Turkish ServCo and its bottler called for an 8% markup on expenses other than DME, plus a "success fee" calculated on increases in year-over-year sales. IV. Assets and Income In 2000 the Company began using the Data Collection, Consolidation and Reporting System (DACCARS) for its worldwide operations. DACCARS tracked the financial performance of each subsidiary, branch, or other entity that prepared - 67 and submitted data to HQ for consolidation purposes. Income and assets reported in DACCARS were aggregated and reported under one or more data codes and submitted as financial statements for various managerial units. In the ordinary course of its business, the Company did not prepare financial statements for the supply points, the most relevant units for purposes of transfer pricing analysis. However, the DACCARS data codes can be manipulated to generate separate balance sheets and income statements for the supply points. The parties have prepared and stipulated pro forma balance sheets and income statements, for 2007-2009, for each of the seven supply points involved here. At the parent level, the relevant unit is a consolidation of TCCC and Export that excludes the operations of the BUs that conducted the U.S. and Canadian beverage businesses. We will refer to this consolidated unit as HQ. HQ owned the trademarks and other intangible property at issue in this case, and it received the royalties paid by the supply points. In the ordinary course of its business, the Company did not prepare distinct financial statements for HQ, but the DACCARS data codes can be manipulated to generate balance sheets and income statements for it. The parties have prepared and stipulated pro forma balance sheets and income statements for HQ for 2007-2009. - 68 The ServCos presumably prepared financial statements in the ordinary course of their business. But the parties have not introduced any ServCo financial statements into evidence or made any stipulations concerning their assets or income (apart from income earned by ServCos that received split invoicing revenues). Most ServCos were compensated on a cost-plus basis, and it is a fair inference that their reported assets and income were generally quite modest. A. Assets 1. IJQ During 2007-2009 HQ showed average book assets of about $15 billion. The bulk of these assets ($11.7 billion on average) consisted of investments in subsidiaries and other affiliates. HQ's balance sheets showed trademarks and other intangible assets of about $500 million. This figure does not reflect the market value of the Company's self-developed intangibles and beverage brands. During 2007-2009 HQ was the registered owner of virtually all trademarks covering the Coca-Cola, Fanta, and Sprite brands and of the most valuable trademarks covering the Company's other products. HQ was the registered owner of nearly all of the Company's patents, including patents covering aesthetic designs (such as bottle shapes and caps), packaging materials, beverage ingredients, and production processes. HQ owned all intangible property resulting from the Com- - 69 pany's R&D concerning new products, ingredients, and packaging. And most ServCo agreements executed after 2003 explicitly provided that "any marketing concepts developed by third party vendors are the property of Export," thus cementing ownership in HQ of subsequently developed marketing intangibles. 2. Supply Points The table below shows the average book assets appearing on the pro forma balance sheets of the seven supply points during 2007-2009: Average Assets Per Book (US$ millions) Brazil Chile Costa Rica Egy_p_t Cash and cash equivalents Trade accounts receivable Inventories 724 183 38 102 57 15 27 24 7 31 37 10 196 348 129 61 56 45 76 122 20 Prepaid exp. and other current assets Investment in investees Investments in consolidated affiliates 57 53 320 3 479 7 3 -0-0- 25 -0-0- 42 -0-0- 82 -05 5 -0-0- Other assets Property, plant & equipment Trademarks and other IP 82 70 190 -1 55 37 2 8 -0- 28 17 -0- 113 382 -0- 63 35 60 3 23 -0- Total assets 1,715 753 70 148 1,209 407 249 Ireland Mexico Swaziland As shown in the table, all of the supply points held significant amounts of cash and trade accounts receivable. Virtually all of their trade receivables were from Coca-Cola bottlers. The risk of bottler default was very low, and the supply points on average reported allowances for doubtful accounts equal to 0.25% of - 70 these receivables. The Brazilian, Chilean, and Irish supply points reported average allowances for doubtful accounts of less than 0.1%. The Irish supply point showed an unusually large investment in property, plant, and equipment (PPE), apparently attributable to the construction of the Ballina plant in 1999. The Brazilian and Chilean supply points showed unusually large investments in affiliates and investees, apparently attributable to acquisitions they made in 2009. See supra notes 5 and 6. Four of the supply points--in Ireland, Costa Rica, Egypt, and Swaziland--showed no trademarks or other intangible property on their balance sheets. Only the Brazilian supply point showed significant intangible property, representing about 11% of its book assets. B. Income and Expenses The Company derived its share of System profit through bottlers' payments for concentrate. The supply points received and retained the bulk of this income, remitting to TCCC only what was needed to satisfy their royalty obligations as determined under the 10-50-50 method. Most administrative and marketing expenses were incurred by HQ or the ServCos. These expenses were placed on the books of the supply points through inter-company charges. Five of the supply points were charged pro-rata, which reimbursed HQ for headquarters expense. All of the supply points were charged DME (incurred by - 71 the ServCos) and most were charged "fees and commissions" (marked-up ServCo expenses). These inter-company charges reimbursed Export for amounts that the ServCos had billed to it. Although the supply points' pro forma income statements show DME as a direct expense, petitioner has not identified any supply point that actually incurred out-of-pocket costs for DME. As far as the record reveals, all of the DME shown on the supply points' pro forma income statements reflects inter-company charges for DME incurred by the ServCos. 1. IJ_Q HQ's income stream reflected its role as brand owner and administrator. Its gross receipts for 2007-2009 consisted primarily of pro-rata and royalties for use of its intangible property. HQ's gross receipts for these years (in U.S. dollars rounded to the nearest million) included the following: Year IP royalties Pro-rata 2007 2008 2009 $1,394 1,536 1,473 $501 513 497 Total 4,403 1,511 These figures include royalties paid by 11 foreign supply points not at issue in this case but exclude any dividends paid by supply points in partial satisfaction of their royalty obligations under the 10-50-50 method. - 72 HQ incurred numerous operating expenses, most of which were typical of the costs one would expect to be incurred by a headquarters unit. After deduction of these expenses and adjustments for nonoperating income and taxes, HQ reported net income (in U.S. dollars rounded to the nearest million) as follows: 2. Year Net income 2007 2008 2009 $1,684 1,425 1,202 Total 4,311 Supply Points The supply points showed fairly steady increases in revenue before and during the tax years in issue. That revenue consisted almost entirely of payments from bottlers for concentrate. (Occasionally supply points also sold concentrate to one another.) The table below shows the revenues reported by the supply points for 2001 through 2009: Supply point revenue (US$ millions) Year 2001 2002 2003 2004 2005 2006 2007 2008 2009 Brag;il $626 447 409 481 646 849 1,138 1,286 1,306 Cllile $177 167 159 170 186 223 261 313 345 Costa Rica $8 93 119 130 135 157 186 220 231 Egyp_t $111 104 96 100 115 129 147 216 265 Ireland $3,184 3,586 4,510 5,075 5,334 5,760 6,596 7,276 6,799 Mexico $935 930 752 647 689 772 883 941 872 swaziland $284 359 478 638 690 696 800 773 863 Total $5,324 5,685 6,523 7,242 7,795 8,586 10,011 11,025 10,680 - 73 Against these revenues the supply points offset their "cost of goods and services" (COGS) and certain minor items. Generally speaking, their COGS was modest compared to their revenues: The supply points had relatively few manufacturing employees, and the materials needed to produce concentrate were inexpensive and often procured by the Company in bulk. After offsetting COGS and other items the supply points reported gross profits (in US dollars rounded to the nearest million) and gross profit margins for 2007, 2008, and 2009 as follows: 2007 2007 2008 2008 2009 2009 Supply point G/P Margin (%) G/P Margin (%) GP Margin (%) Brazil Chile Costa Rica Egypt Ireland Mexico Swaziland $930 217 149 98 5,282 668 725 81.7 83.3 80.0 66.3 80.1 75.6 90.7 $1,044 254 176 154 5,829 707 699 81.2 81.1 79.9 71.5 80.1 75.2 90.4 $1,028 278 172 193 5,430 631 780 78.7 80.7 74.6 72.9 79.9 72.4 90.3 Total 8,069 8,863 8,512 From these gross profits the supply points deducted their business expenses. These consisted of inter-company charges and direct expenses. Inter-company charges, which varied greatly among the supply points, included royalties, prorata, "fees and commissions," and DME. Direct expenses, which were significant only for the Brazilian supply point, included general and administrative expenses (G&A), sales/service costs, and marketing expenses other than DME. The table - 74 below shows the average annual business expenses, by category, reported by the supply points during 2007-2009: Average annual business expenses (US$ millions) Supply p_oint Direct expenses DME Brazil $121 Chile 16 Costa Rica 2 Egypt 27 Ireland 85 Mexico -0Swaziland Total 11 Fees & comms Inter-co Pro-rata royalties Total $150 29 53 47 1,104 170 -0-0$39 83 777 82 -0$8 11 -0350 46 -0$2 -0-0807 114 $271 55 104 157 3,123 412 2 326 46 123 508 4,630 As shown in the table above, the Brazilian, Costa Rican, Chilean, and Egyptian supply points recorded minimal or no royalty payments to TCCC. Petitioner represents that they fully satisfied their royalty obligations under the 10-50-50 method in other ways (i.e., by paying dividends and/or pro-rata). The Brazilian and Egyptian supply points did not participate in the pro-rata regime, see supra p. 48, so they showed no payments in this category. The charges for "fees and commissions" and DME varied widely among the supply points, with no clear relationship to their gross revenues. The Egyptian and Swazi supply points during 2007-2009 were allocated "fees and commissions" that averaged 40% of their gross revenue, whereas the Brazilian and Chilean supply - 75 points reported zero "fees and commissions."26 The DME charged to the supply points during 2007-2009, as a percentage of their average gross revenues (GR), likewise ranged widely, from 0.3% to 24.8%, as follows: Supply point Brazil Chile Costa Rica Egypt Ireland Mexico Swaziland DME as % of GR 12.1 9.5 24.8 22.4 16.0 18.9 0.3 After deducting inter-company charges and direct expenses as shown above, the supply points reported operating profit for 2007, 2008, and 2009 as follows: Supply point Operating profit (US$ millions) 2007 2008 2009 2007-2009 Brazil Chile Costa Rica Egypt Ireland Mexico $668 167 60 (45) 2,185 254 $762 197 72 1 2,530 267 $758 220 51 18 2,456 248 $2,188 584 184 (25) 7,172 769 Swaziland 189 190 302 680 Total 3,478 4,019 4,054 11,551 26The allocation of zero "fees and commissions" to the Brazilian and Chilean supply points might be explained in part by the local ServCos' receipt of "split invoicing" revenues from Venezuelan and Colombian bottlers. See supra pp. 6566. Where "split invoicing" occurred, the supply point(s) that sold to those bottiers lost revenue, but they avoided having an equivalent amount of ServCo expenses charged to their books. Petitioner has not quantified these effects. - 76 The seven supply points involved here had a weighted average income tax rate of 6.3%. After adjustments for taxes and nonoperating income, these seven supply points reported total net income of $11.36 billion for 2007-2009. That total (which excludes the income realized by the Company's 11 other foreign supply points) equaled 264% of the net income of $4.31 billion recorded by HQ during 2007-2009 (which included all royalties paid by all foreign affiliates). C. Brazilian Trademarks TCCC initially did business in Brazil through a branch. It conducted branch operations in Brazil beginning in 1945 or earlier. Those branch operations included the manufacture of concentrate beginning in 1949 or earlier. Coca-Cola bottlers have done business in Brazil since at least 1942. TCCC registered its first Brazilian trademark in 1912. Between 1912 and 1962, when the Brazilian supply point was incorporated, TCCC registered nine trademarks in Brazil. Five related to Coca-Cola, covering the product names Coca-Cola and Coke, the stylized label, and the Spencerian script. Two related to Fanta and two to Sprite, covering those product names and their stylized labels. In February 1963 TCCC executed an agreement authorizing the Brazilian supply point to manufacture concentrate and to use TCCC's trademarks in doing so. This agreement, which related solely to Coca-Cola products, stated that the - 77 trademarks continued to be TCCC's "exclusive property" and that TCCC had "the exclusive right and jurisdiction * * * to control the use" of the trademarks. The agreement did not require the Brazilian supply point to perform marketing activities or incur marketing expenditures. Between 1963 and November 17, 1985, TCCC registered an additional six trademarks in Brazil. Five related to Coca-Cola, covering the dynamic ribbon and the product names Coke Light, Coca-Cola Light, and Coke Classic. The sixth was a seemingly duplicative trademark for Sprite. Between November 17, 1985, and the tax years at issue, TCCC registered at least 53 additional trademarks in Brazil. These covered the Coca-Cola contour bottle shape, secondary design features for TCCC's core products, advertising slogans, and composites of existing trademark elements. They also covered dozens of newer products including Coke Zero, Diet Fanta, Dasani, Minute Maid, Powerade, Kuat, and numerous other local Brazilian brands. The February 1963 agreement was amended often between 1981 and 1996 to refer to products other than Coca-Cola and to authorize the Brazilian supply point to use the other trademarks described above. These amendments made clear that all trademarks were TCCC's "exclusive property" and that the Brazilian supply point was granted only a limited right to use them to manufacture and distri- - 78 bute concentrate. None of the agreements as thus amended required the Brazilian supply point to perform any marketing activities or incur any marketing expenses. V. Tax Reporting and IRS Examination During 2007-2009 petitioner used the 10-50-50 method to determine the royalty obligations of its supply points. Under that method, supply points were permitted to satisfy their royalty obligations by a combination of actual royalties, dividends, and pro-rata payments. The Brazilian and Chilean supply points remitted during these years, in satisfaction of their royalty obligations, aggregate dividends of about $887 million and $233 million, respectively. Atlantic, which operated the Costa Rican, Egyptian, Irish, and Swazi supply points as branches (directly or indirectly), remitted aggregate dividends of about $682 million in satisfaction of those supply points' royalty obligations. For this purpose petitioner treated Atlantic's four supply points as a consolidated entity. Although petitioner elected "dividend offset" treatment on timely filed returns for 2007-2009, it did not include in those returns explanatory statements as directed by Rev. Proc. 99-32, 1999-2 C.B. 296. The IRS selected petitioner's 2007-2009 returns for examination. It determined that the 10-50-50 method did not reflect arm's-length pricing because that method overcompensated the supply points and undercompensated TCCC for the - 79 use of its intangible property. The IRS retained an economist, Dr. Scott Newlon, to analyze petitioner's inter-company pricing and determine the best method to reallocate income. Dr. Newlon concluded that TCCC, as the legal owner of virtually all the Company's trademarks and intangible property, owned the vast bulk of its brand value. But he found that the supply points, which functioned essentially as contract manufacturers, retained most of the profits generated by sales of concentrate to foreign bottlers. He concluded that a reallocation of income was necessary in order to reflect clearly the income of TCCC and its supply-point affiliates. Concluding that no uncontrolled transaction could accurately capture the value of licensing the Company's unique brands, Dr. Newlon rejected the "comparable uncontrolled transaction" (CUT) method as a transfer pricing methodology. He likewise rejected a "profit split" method, finding it unreliable where one party (TCCC) owned valuable intangible assets and the other parties (the supply points) owned virtually none. Instead, he elected to apply a "comparable profits method" (CPM) using independent Coca-Cola bottlers as parties comparable to the supply points. In the initial report that he prepared for the IRS, Dr. Newlon selected 18 independent Coca-Cola bottlers, headquartered in 10 different countries, that had - 80 qualified auditors' opinions for 2007-2009.27 He concluded that a "return on operating assets" (ROA) derived from these bottlers' operations would yield appropriate adjustments to the supply points' income. He believed that such adjustments would be conservative because the bottlers, which "possessed distribution networks and customer relationships," had more bargaining power than the supply points, which could be (and often were) terminated by petitioner at will. Dr. Newlon began his analysis by calculating the 18 bottlers' operating income and operating assets, all of which he stated in their local currencies. He then divided operating income by operating assets to determine an ROA for each bottler. His results appear in the following table:28 Bottler home Bottler Chile Embotelladora Andina S.A. Mexico Coca-Cola FEMSA, S.A.B. de C.V. Mexico Grupo Continental, S.A.B. Chile Coca-Cola Embonor S.A. Mexico Embotelladoras Arca S.A.B. de C.V. Australia Coca-Cola Amatil Limited A B C Operating income Operating assets ROA% (% of net revenue) (% of net revenue) (A÷B) 18.0 17.5 18.1 19.5 18.8 18.4 41.2 43.1 50.0 60.2 59.1 67.1 43.6 40.6 36.2 32.5 31.8 27.3 Spain Compania Nortena de Bebidas Gaseosas, S.A. 9.3 38.2 24.5 Chile Embotelladoras Coca-Cola Polar S.A. 13.7 57.1 24.0 USA Coca-Cola Enterprises, Inc. 8.6 47.2 18.1 27As discussed infra p. 136, Dr. Newlon in his expert witness report expanded his analysis to include six additional independent Coca-Cola bottlers. 28To avoid showing results in ten different currencies, the table shows each bottler's operating income and operating assets as a percentage of its net revenue. - 81 Turkey Coca-Cola Icecek A.S. Greece Coca-Cola Hellenic Bottling Company S.A. USA Coca-Cola Bottling Co. Consolidated Nigeria Nigerian Bottling Co. PLC Japan Mikuni Coca-Cola Bottling Co., Ltd. Japan Coca-Cola West Holdings Company, Ltd. Japan Shikoku Coca-Cola Bottling Co., Ltd. Thailand Haad Thip Public Company Ltd. Japan Hokkaido Coca Cola Bottling Co., Ltd. 12.3 I 1.1 6.1 68.4 66.2 42.4 17.9 16.8 14.4 6.8 3.4 2.6 2.0 1.8 0.5 60.3 45.9 54.2 55.1 60.8 46.2 11.2 7.4 4.8 3.7 2.9 1.6 Dr. Newlon observed that the five East Asian bottlers had the lowest ROAs, suggesting that they might be subject to uniquely local market conditions. He also observed that Latin American bottlers tended to have very high ROAs. To test the sensitivity of his analysis to regional differences, he segmented the bottlers as follows: (1) all 18 bottlers; (2) non-East Asian bottlers; (3) Latin American bottlers; and (4) non-East Asian bottlers outside Latin America. He determined interquartile range ROAs for the bottlers in each segment as follows: Bottler segment All bottlers (18) Non-East Asian bottlers (13) Latin American bottlers (6) Non-East Asian bottlers outside Latin America (7) Interquartile range ROA (2007-2009) 25th Percentile Median 75th Percentile 7.4% 17.9% 31.8% 18.0% 24.5% 34.3% 31.8% 32.5% 40.6% 14.4% 17.9% 24.5% Dr. Newlon then calculated ROAs for the supply points. He determined their operating assets in essentially the same manner as for the bottlers but added an imputed asset equal to an estimated average of the supply point's inter-com- - 82 pany receivables. He then divided operating income by operating assets to yield ROAs as follows: Return on operating assets (ROA) 2007-2009 Supply point 2007 2008 2009 Average Ireland Brazil Chile Costa Rica Swaziland Mexico Egypt 189.5% 175.4% 150.7% 128.0% 103.7% 86.8% -38.8% 227.3% 198.4% 159.2% 168.0% 118.5% 100.2% 2.5% 227.9% 167.5% 138.9% 132.7% 161.8% 96.1% 17.9% 214.4% 179.7% 148.6% 143.0% 128.5% 94.1% -4.3% Because the first six supply points had ROAs that dwarfed those of their bottling counterparts, Dr. Newlon concluded that the supply points had received compensation in excess of an arm's-length amount. He accordingly recommended that the IRS: (1) adjust the income of the Brazilian, Chilean, Costa Rican, and Mexican supply points downward to reflect an ROA consistent with the ROAs of the Latin American bottler segment; (2) adjust the income of the Irish and Swazi supply points downward to reflect an ROA consistent with the ROAs of the bottiers generally; and (3) adjust the income of the Egyptian supply point upward for 2007 and 2008. The IRS implemented adjustments consistent with Dr. Newlon's recommendations. It adjusted the income of the Brazilian, Chilean, Costa Rican, and Mexi- - 83 can supply points downward to reflect the median ROA of the Latin American bottler segment. And it adjusted the income of the Irish and Swazi supply points downward to reflect the median ROA of the 13 non-East Asian bottlers. To the extent a supply point reported income that exceeded its benchmark, the IRS determined that additional royalty income should be allocated to petitioner from that supply point. The IRS calculated the additional royalties due to petitioner (in millions of U.S. dollars) as follows: From supply point 2007 2008 2009 2007-2009 Ireland Brazil Swaziland Mexico Chile Costa Rica Egypt $1,862 535 146 155 126 42 (67) $2,223 629 150 180 152 59 (28) $2,105 604 257 160 161 41 -0- $6,190 1,768 554 496 439 141 (95) Total 2,799 3,366 3,329 9,494 The IRS issued petitioner a timely notice of deficiency reflecting these adjustments, and petitioner timely sought review in this Court. Following discovery, respondent amended his answer to assert additional deficiencies related to petitioner's practice of "split invoicing." The ServCos that benefited from split invoicing received compensation from the participating bottlers at rates that were higher (on average) than the rates specified in the agreements those ServCos had executed with Export. See supra p. 66. Concluding that the ServCo agreements - 84 with Export reflected arm's-length norms, the IRS alleged that any "excess income" that a ServCo received from a bottler--i.e., compensation in excess of a modest markup on non-DME expenses--should be reallocated to petitioner. In his amended answer respondent asserted increased deficiencies with respect to six ServCos that had received split invoicing payments, were not branches of TCCC or Export, and had received "excess income" from bottlers.29 For the Turkish ServCo, respondent defined "excess income" as income in excess of t [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/documents/agency%3Atax-court%3Aa44955222f19235b. Public record. Not legal advice.