UNITED STATES TAX COURT

JRN

147 T.C. No. 15

UNITED STATES TAX COURT

ANALOG DEVICES, INC. & SUBSIDIARIES, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 17380-12.

Filed November 22, 2016.

P is a corporation that is a U.S. shareholder of a controlled

foreign corporation (CFC). P repatriated cash dividends from the

CFC and claimed an 85% I.R.C. sec. 965 dividends received

deduction (DRD) for 2005. P reported no related party indebtedness

during its testing period pursuant to I.R.C. sec. 965(b)(3) when it

claimed the DRD.

R determined, and P agreed, that the annual 2% royalty from

CFC to P should be increased to 6% for 2001-05 to reflect arm'slength pricing. See I.R.C. sec. 482. In 2009 P and R executed a

closing agreement pursuant to Rev. Proc. 99-32, 1999-2 C.B. 296, to

effect the secondary adjustments required after a primary I.R.C. sec.

482 allocation. The closing agreement established accounts

receivable as described in Rev. Proc. 99-32, sec. 4.01, 1999-2 C.B. at

299, for 2001-05 and deemed them created as of the last day of the

taxable year to which they relate. R subsequently determined that the

accounts receivable constituted an increase in related party

SERVED Nov 22 2016

-2indebtedness under sec. I.R.C. 965(b)(3) during P's testing period,

which R determined decreased P's I.R.C. sec. 965 DRD.

Held: The parties did not reach an agreement in the closing

agreement with respect to the treatment of the accounts receivable

under I.R.C. sec. 965.

IJe]4, further, I.R.C. sec. 965(b)(3) does not provide that the

accounts receivable constituted related party indebtedness arising

during P's testing period.

Held, further, the accounts receivable did not increase CFC's

related party indebtedness during the testing period.

Held, further, P is entitled to the full amount of its claimed

DRD.

Kenneth B. Clark, James P. Fuller, Jennifer L. Fuller, Andrew J. Kim, and

Larissa B. Neumann, for petitioner.

Michele J. Gormley and Curt M. Rubin, for respondent.

OPINION

MARVEL, Chief Judge: Respondent determined deficiencies in petitioner's

Federal income tax of $3,997,804 and $22,112,640 for taxable years 2006 and

2007, respectively. The issue for decision is whether the accounts receivable that

the parties established in a 2009 closing agreement pursuant to Rev. Proc. 99-32,

-31999-2 C.B. 296, created retroactive indebtedness between petitioner and its

controlled foreign corporation (CFC) under section 965(b)(3).¹ If so, the amount

of petitioner's section 965(a) dividends received deduction (DRD) for 2005 would

be reduced.2

Background

The parties submitted this case fully stipulated under Rule 122. The

stipulated facts and facts drawn from the stipulated exhibits are incorporated

herein by this reference.3 Petitioner is a U.S. corporation with its principal place

of business in Norwood, Massachusetts.

¹Unless otherwise indicated, all section references are to the Internal

Revenue Code (Code) as amended and in effect for the years at issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

2Although petitioner claimed the DRD for its 2005 taxable year, only the

2006-07 taxable years are before us because of credit carryovers. The Court may

consider facts relating to tax years that are not otherwise within the Court's

jurisdiction where necessary to correctly redetermine the amounts of the tax

deficiencies for the years at issue. M sec. 6214(b). Petitioner's 2005-07 tax

years ended on October 29, 2005, October 28, 2006, and November 3, 2007,

respectively.

3Respondent reserved relevancy objections with respect to certain stipulated

facts. To the extent that we include a stipulated fact subject to a relevancy

objection in the background section, we will discuss respondent's objection.

Stipulated facts not included in the background section do not inform our holding,

and objections to them are denied as moot.

-4Analog Devices, Inc. (petitioner), was founded in 1965. It is the common

parent of a group of subsidiaries that joined in the timely filing of consolidated

Federal income tax returns for the 2006-07 tax years. It is also the parent of

nonconsolidated foreign affiliates.

Petitioner, its subsidiaries, and its affiliates design, develop, manufacture,

and sell high-performance analog, mixed-signal, and digital signal processing

integrated circuits. In 1976 petitioner incorporated Analog Devices B.V. (ADBV),

which then built a fabrication facility of complementary metal oxide

semiconductor technology. ADBV is organized under the laws of the Netherlands

with its principal place of management and business in Limerick, Ireland. For all

relevant times, petitioner owned 100% of the issued and outstanding shares of

ADBV, which was a CFC pursuant to section 957(a).

I.

The Intercompany Royalty

In 1982, in connection with a section 482 adjustment, petitioner entered into

a closing agreement with the Internal Revenue Service (IRS) Appeals Office

establishing an annual royalty from ADBV to petitioner equal to 2% of ADBV's

net sales.4 ADBV paid the 2% royalty to petitioner every year through the end of

4Respondent objects to facts regarding the 1982 and 1995-96 transfer

pricing adjustments and the 1998 license agreement, infra. Although we do not

(continued...)

-5petitioner's 1994 taxable year, at which time petitioner and ADBV concluded that

the royalty was no longer necessary. After the IRS had conducted an audit and

determined to reinstate the royalty, petitioner and ADBV entered into a crosslicense agreement in 1998 (1998 license agreement) again reflecting a 2% royalty

from ADBV to petitioner effective November 3, 1996. By its terms, the 1998

license agreement was valid for 20 years.

The IRS regularly conducted examinations for petitioner's tax years

following the 1998 license agreement. In 2006 the IRS conducted an examination

for petitioner's 2001-03 tax years. As a result of that examination, the IRS

proposed under its authority pursuant to section 482 to increase the intercompany

royalty to 6% beginning with the 2001 tax year. Petitioner's chief financial officer

agreed to the proposed increase for 2001-03 by executing Form 4549, Income Tax

Examination Changes, on May 22, 2006.

Petitioner filed an amended 2004 Federal income tax return on July 18,

2006, to reflect the increased royalty rate. Petitioner timely filed its 2005 Federal

4(...continued)

base our holding on these transfer pricing adjustments, these facts provide context

and useful background information. Respondent's objections with respect to this

background information are overruled.

-6income tax return on July 13, 2006, and reported a 6% royalty from ADBV.5 For

2001-05 the total increase in petitioner's royalty income due to the application of a

6% royalty as opposed to a 2% royalty was $429,175,634 (additional royalty

amount). The transfer pricing adjustments giving rise to the additional royalty

amount did not create indebtedness for Federal income tax purposes.

In July 2006 ADBV and petitioner credited and debited their respective

intercompany accounts by the royalty adjustment amount. ADBV paid the

additional royalty amount in a series of payments to petitioner between July 25

and October 26, 2006. Petitioner did not make an election under Rev. Proc. 99-32,

supra,6 in 2006 with respect to the payments.

5Petitioner applied the 6% rate for 2004-05 before the IRS had concluded its

examinations with respect to those years. However, adjustments for those years

were pending before the IRS at that time.

6Rev. Proc. 99-32, 1999-2 C.B. 296, permits qualifying U.S. taxpayers to

make the secondary adjustments required by sec. 1.482-1(g)(3)(i), Income Tax

Regs., after a sec. 482 adjustment by establishing an interest-bearing account

receivable from, or payable to, a related person in the amount of the transfer

pricing primary adjustment in lieu of treating the allocated amount as a deemed

dividend or a capital contribution. Rev. Proc. 99-32, secs. 1, 4.01, 1999-2 C.B. at

297, 299; see infra pp. 15-17.

-7II.

Petitioner's Repatriation and Section 965 Election

In 2005 petitioner's and ADBV's boards of directors approved a domestic

reinvestment plan to repatriate a cash dividend to take advantage of a limited 85%

DRD under section 965. See

pp. 13-14. Petitioner's representatives at this

time were aware of guidance that the IRS had issued in the form of three IRS

notices with respect to section 965. See infra p. 18 (describing the IRS notices).

ADBV declared the dividend and paid it to petitioner on October 24, 2005.7

At the time of the payment of the dividend, ADBV's cash balance, including

marketable securities and short-term investments, was approximately $1.6 billion.

Its cash balance at the end of its 2005 taxable year, after it paid the dividend, was

$485,306,732.

Petitioner attached a Form 8895, One-Time Dividends Received Deduction

for Certain Cash Dividends from Controlled Foreign Corporations, to its timely

filed Federal income tax return for 2005. On the Form 8895 petitioner claimed a

section 965 DRD of $879,629,844. Form 8895 requires the taxpayer claiming a

section 965 DRD to report the related party indebtedness of its CFCs as of the

beginning and end of the testing period. Generally, an increase in the related party

7After consideration of the sec. 965(b)(2) base period limitation, the total

qualifying dividend that ADBV distributed to petitioner equaled $1,034,858,640.

-8indebtedness of its CFCs during the testing period decreases the amount of the

dividends eligible for the DRD. See sec. 965(b)(3). Petitioner's testing period

was between October 3, 2004, and October 29, 2005.8 Petitioner reported zero

related party indebtedness for both the beginning and the end of the testing period.

III.

The IRS' Examination for Petitioner's 2004-05 Taxable Years, Petitioner's

Rev. Proc. 99-32 Election, and the Notice of Deficiency

The IRS commenced an examination for petitioner's 2004 and 2005 taxable

years in May 2006. The IRS commenced an examination for petitioner's 2006-07

taxable years around May 2006 and April 2007, respectively.9

On May 3, 2007, the IRS faxed to petitioner an issue resolution agreement

stating that ADBV's payments of the additional royalty amount resulted in a

8Pursuant to Notice 2005-38, sec. 7.01(b)(vi), 2005-1 C.B. 1100, 1111, a

taxpayer may choose an alternative initial measurement date. Nothing in the

record suggests that petitioner chose one of the alternative dates.

°The examinations were conducted with petitioner's participation in the IRS

Compliance Assurance Process (CAP) beginning for taxable year 2006. Under the

IRS CAP program, the IRS and the participating taxpayer work to achieve Federal

tax compliance before the taxpayer files a return for the year. Petitioner's 2004-05

taxable years were considered "transition years", and the examinations for 200405 were simultaneous with the CAP examination for 2006. To the extent that

respondent objects to these statements on relevancy grounds, the objection is

overruled.

-9constructive dividend to petitioner.¹° In a letter to the IRS dated July 17, 2007,

petitioner's chief financial officer requested relief under Rev. Proc. 99-32, supra,

with respect to the additional royalty amount (Rev. Proc. 99-32 election). The

election would permit petitioner to establish interest-bearing accounts receivable

from ADBV instead of treating the transfer pricing adjustments as a constructive

dividend to petitioner. See infra pp. 16-18.

Petitioner's treasurer, William Martin, also attached a "Statement Pursuant

to Revenue Procedure 99-32" to petitioner's timely filed 2006 tax return to ensure

that the IRS would not treat ADBV's payment of the additional royalty amount as

a dividend. The statement reiterated petitioner's Rev. Proc. 99-32 election and

stated that petitioner was permitted to establish interest-bearing accounts

receivable from ADBV.

In October 2007, during the course of the examinations, the IRS raised

section 965(b)(3) as an issue. On or around December 5, 2007, respondent issued

a notice of proposed adjustment (NOPA) asserting that the Rev. Proc. 99-32

election resulted in an increase in related party indebtedness of $162,166,710

¹°Absent a Rev. Proc. 99-32 election, the conforming adjustments required

by sec. 1.482-1(g)(3)(i), Income Tax Regs., are made by treating the allocated

amounts as a dividend or capital contribution as appropriate.

- 10 during petitioner's testing period, which required a reduction of the amount of the

DRD that petitioner had claimed of $137,841,704."

In May 2009 petitioner and the IRS signed a Form 906, Closing Agreement

on Final Determination Covering Specific Matters, finalizing petitioner's Rev.

Proc. 99-32 election. Petitioner's chief financial officer signed the closing

agreement on petitioner's behalf. He did not have signatory authority for ADBV,

and no one with signatory authority for ADBV signed the agreement.

The parties' closing agreement is titled "Closing Agreement on Final

Determination Covering Specific Matters" (sometimes, Rev. Proc. 99-32 closing

agreement). The first section of that agreement includes the recitals, which are

introductory, explanatory clauses beginning with the word "whereas". Some

recitals in the closing agreement are specifically negotiated, while others borrow

standard terms from the IRS' Rev. Proc. 99-32 Pattern Agreement. See Internal

Revenue Manual (IRM) pt. 8.13.1-22 (Nov. 9, 2007). One of the specifically

negotiated recitals states: "The Parties desire to enter into this closing agreement

to resolve with finality certain issues identified below that the IRS reviewed

"A copy of the NOPA is not in the record, but it apparently did not mention

any closing agreement under Rev. Proc. 99-32, supra.

- 11 during CAP, which impact the taxpayer's tax year ended October 28, 2006".¹² The

recitals with standard terms address the primary adjustments under section 482

(i.e., the 6% royalty), petitioner's Rev. Proc. 99-32 election, and respondent's

decision that the provisions of Rev. Proc. 99-32, supra, should apply.

After the recitals is a caption that states: "NOW IT IS HEREBY

DETERMINED AND AGREED, for all Federal income tax purposes that". This

is standard wording from the IRS' Rev. Proc. 99-32 Pattern Agreement. See IRM

pt. 8.13.1-22; see also Rev. Proc. 68-16, sec. 6.05(3), 1968-1 C.B. 770, 779

(stating that the caption emphasizes the transition from the recitals to matters upon

which the parties have agreed).

The "determined" clauses--those to which the parties agreed to be bound-follow the caption and include both standard and specifically negotiated terms.

One of the determined clauses establishes five accounts receivable between

petitioner and ADBV reflecting the difference between the 2% and 6% royalty

rates for 2001-05. Each account was deemed to have been created as of the last

day of petitioner's taxable year to which it relates. The determined clause

establishing the accounts receivable states: "Taxpayer has established

¹²Two other specifically negotiated recitals state that "the Parties identified

certain issues for IRS review" and that "the Parties agreed to work diligently and

in good faith to arrive at a resolution of all issues identified for review".

- 12 intercompany Accounts Receivable, set forth below, which were recorded on

Taxpayer's books and treated as tenu loans to Controlled Entity [ADBV]

reflecting the following balances, each such Account Receivable being deemed to

have been created as of the last day of the taxable year to which it relates."

These deemed accounts receivable did not come into existence until the execution

of the closing agreement.

Other determined clauses discuss, inter alia, payment of the accounts

receivable,¹³ the tax implications of the payments,¹4 and the calculation of interest

on the accounts. The closing agreement does not mention section 965(b)(3), and

we infer from this that the parties did not reach an agreement with respect to

section 965(b)(3) in the closing agreement.

¹³Certain distributions that petitioner received from ADBV in 2002-04 were

treated as prepayments of the accounts receivable. At the time of the execution of

the closing agreement, the accounts had been fully paid. The closing agreement

also states that "[p]ayment of the accounts receivable and interest thereon * * *

will be free of the Federal income tax consequences of the secondary adjustments

that would result from the primary adjustments * * * had Taxpayer and the

Commissioner not entered into this agreement."

¹#The closing agreement states that the payments and prepayments of the

accounts shall not be treated as dividends under sec. 316 or for any other Federal

income tax purpose and are therefore not eligible for a foreign tax credit under

secs. 901-902 or a DRD under secs. 241-247.

- 13 The IRS subsequently issued a notice of deficiency dated April 19, 2012,

determining that the accounts receivable established under Rev. Proc. 99-32,

supra, constituted an increase in related party indebtedness during petitioner's

testing period under section 965(b)(3). The IRS therefore determined to decrease

the amount of the 2005 dividend eligible for the section 965 DRD. Respondent

would not have detennined that section 965(b)(3) applies to the accounts

receivable absent petitioner's Rev. Proc. 99-32 election and the closing agreement.

Petitioner timely filed a petition in this Court for redetermination.

Discussion

I.

Applicable Law and IRS Guidance

A.

Section 965

Section 965 was enacted in October 2004 by the American Jobs Creation

Act of2004, Pub. L. No. 108-357, sec. 422(a), 118 Stat. at 1514-1515. It was

subsequently amended by the Gulf Opportunity Zone Act of2005, Pub. L. No.

109-135, sec. 403(q)(3), 119 Stat. at 2627. Section 965(a) provides that a

corporation that is a U.S. shareholder of a CFC may elect a one-time 85% DRD for

eligible cash dividends received from the CFC.¹5 Generally, a taxpayer makes a

¹5The DRD was available only for a limited time and is now expired. See

sec. 965(f) (providing the years for which a taxpayer could have made the

(continued...)

- 14 section 965 election by filing a Form 8895 with its timely filed Federal income tax

return for the year. See Notice 2005-10, sec. 7, 2005-1 C.B. 474, 480-481.

Although section 965 imposes several limitations on the availability and the

amount of the DRD, this case concerns only the limitation provided by section

965(b)(3). Section 965(b)(3) reduces the amount of the eligible dividend by any

increase in the amount of indebtedness of the CFC to any related party during the

testing period (related party indebtedness). The testing period is generally the

period between October 3, 2004, and the close of the taxable year for which the

taxpayer makes the election. Sec. 965(b)(3)(A) and (B).

The Commissioner has carved out an exception to the related party

indebtedness rule for intercompany trade payables. Indebtedness arising in the

ordinary course of business from sales, leases, licenses, or the rendition of services

that a related person provides to or for a CFC is not related party indebtedness

under section 965(b)(3), provided that the indebtedness is actually paid within 183

days. See Notice 2005-64, sec. 10.08, 2005-2 C.B. 471, 489; Notice 2005-38, sec.

7.02(b), 2005-1 C.B. 1100, 1111.

"(...continued)

election).

- 15 B.

Secondary Adjustments Under Section 482

Section 482 authorizes the Secretary to adjust the items of entities owned or

controlled by the same interests. When the Secretary¹6 makes an allocation under

section 482, the adjustment of the controlled taxpayer's income is known as a

primary allocation. See sec. 1.482-1(g)(2)(i), Income Tax Regs. The regulations

require corresponding adjustments with respect to the income of members of the

group that were affected by the primary allocation. See 4 These corresponding

adjustments are known as correlative allocations. See 4 For example, if a

primary allocation increases a U.S. parent corporation's income, the correlative

allocation would decrease the income of its CFC by the same amount. M id.

Because the primary and correlative allocations shift taxable income from

one related party to the other, the entities must make so-called secondary or

conforming adjustments to reconcile the entities' cash accounts with their adjusted

tax positions. See 4 subpara. (3)(i). The regulations under section 482 provide

two methods of making the secondary adjustments. See 4 Where, as here, a U.S.

parent corporation's income has been increased and its CFC's income has been

decreased as a result of a transfer pricing adjustment, the methods include:

¹6The term "Secretary" means the Secretary of the Treasury or his delegate.

Sec. 7701(a)(11)(B); see sec. 1.482-1(a)(2), Income Tax Regs.

- 16 treating the allocated amount as a deemed dividend from the CFC to the U.S.

parent; or "in appropriate cases, pursuant to such applicable revenue procedures as

may be provided by the Commissioner * * * repayment of the allocated amount

without further income tax consequences." I_d.

The Commissioner promulgated Rev. Proc. 99-32, supra, pursuant to the

above-quoted regulation." Rev. Proc. 99-32, supra, permits qualifying U.S.

taxpayers to make secondary adjustments by establishing an interest-bearing

account receivable from, or payable to, its CFC in the amount of the primary

transfer pricing adjustment in lieu of treating the adjustment as a deemed dividend

or a capital contribution. Rev. Proc. 99-32, secs. 1, 4.01, 1999-2 C.B. at 297, 299.

For cases pending before the IRS, a taxpayer may elect treatment under Rev.

Proc. 99-32, supra, by requesting the election in writing signed by a person with

authority to sign the U.S. taxpayer's Federal income tax returns and submitting the

request before "closing action is taken on the primary adjustment." Id. sec.

5.01(1), 1999-2 C.B. at 300. If the taxpayer qualifies, the IRS and the U.S.

"Rev. Proc. 99-32, supra, superseded Rev. Proc. 65-17, 1965-1 C.B. 833.

- 17 taxpayer will enter into a closing agreement under section 7121 of the Code.¹ª Id.

sec. 5.01(3) and (4).

Rev. Proc. 99-32, sec. 4.01, describes the features of an account established

under these procedures. The account may be established and paid "without the

Federal income tax consequences of the secondary adjustments that would

otherwise result from the primary adjustment." The account is deemed to have

been created as of the last day of the taxable year for which the primary adjustment

was made. It bears interest computed pursuant to section 1.482-2(a)(2), Income

Tax Regs., from the day after the deemed establishment date. For purposes of

section 1.482-2(a)(2)(iii), Income Tax Regs., dealing with safe haven interest

rates, the account "shall be considered to be a loan or advance having a term

extending from the day after the date the account is deemed to have been created

through the expiration of" 90 days after execution of the closing agreement on

behalf of the Commissioner. Rev. Proc. 99-32, secs. 4.01(2), 5.01(4)(e).

Rev. Proc. 99-32, sec. 4.03, clarifies that electing treatment under that

revenue procedure does not affect the primary adjustment but affects the

¹8For taxpayer-initiated adjustments under sec. 1.482-1(a)(3), Income Tax

Regs., a U.S. taxpayer may elect Rev. Proc. 99-32, supra, treatment by filing a

statement with the Federal income tax return that reports the primary adjustment.

Rev. Proc. 99-32, sec 5.02, 1999-2 C.B. at 300-301. Petitioner's 2001-05 taxable

years were pending before the IRS.

- 18 taxpayer's taxable income and credits to the extent indicated in Rev. Proc. 99-32,

sec. 4.01." Rev. Proc. 99-32, sec. 4.03, further states that the election eliminates

"the collateral effects of secondary adjustments, such as those described in section

2 [regarding deemed dividend treatment]."

C.

IRS Guidance on the Intersection of Section 965 and

Rev. Proc. 99-32

No statutory or regulatory authority addresses the intersection of section

965 and Rev. Proc. 99-32 closing agreements. However, in 2005 the IRS issued

three notices relating to section 965. See Notice 2005-64, supra; Notice 2005-38,

supra; Notice 2005-10, supra. Notice 2005-64, sec. 10.06, includes one sentence

stating that "[a]ccounts payable" established under Rev. Proc. 99-32, supra, are

treated as related party indebtedness for purposes of section 965(b)(3). The notice

does not include any analysis of this statement.

In September 2008 the IRS Associate Chief Counsel (International) released

Advice Memorandum AM 2008-010 (advice memorandum). The advice

"Rev. Proc. 99-32, sec. 4.01(4), discusses the Federal tax consequences of

payment of the account. The account must be paid or treated as prepaid by offset

within a 90-day period, and such payment "shall be treated as a payment of the

account for all Federal income tax purposes, regardless of its characterization

under foreign law." Id. For example, payment by an offset that would otherwise

constitute a dividend will not qualify as a dividend for any Federal income tax

purpose. See id.

- 19 memorandum stated that an account receivable established under Rev. Proc. 9932, supra, is treated as debt for purposes of section 965(b)(3). It recommended

that "all closing agreements under Rev. Proc. 99-32 covering a taxable year in

which the taxpayer elected the benefit of * * * [section] 965 include language

confirming that the account receivable established in the closing agreement

constitutes related party indebtedness for purposes of * * * [section] 965(b)(3)."

However, the advice memorandum asserted that a failure to include such wording

in a closing agreement did not preclude related party indebtedness treatment of an

accountreceivable. See id.

II.

BMC Software, Inc. v. Commissioner

We first addressed the intersection of section 965(b)(3) and Rev. Proc.

99-32 closing agreements in BMC Software, Inc. v. Commissioner (BMC

Software I), 141 T.C. 224 (2013), rev'd, 780 F.3d 669 (5th Cir. 2015). BMC

Software, Inc. (BMC), a U.S. corporation, had claimed a section 965 DRD for its

2006 taxable year. R at 226, 228. Unrelated to the DRD, BMC had paid

royalties to its CFC for 2002-06 with respect to software that the entities had

collaboratively developed. R at 226. In 2007 BMC and the Commissioner

entered into a transfer pricing closing agreement for 2003-06 reflecting the

Commissioner's determination that the royalty amount should be reduced to reflect

- 20 arm's-length pricing. See id. Also in 2007 BMC and the Commissioner entered

into a closing agreement under Rev. Proc. 99-32, supra, to conform the entities'

cash accounts with the primary adjustment. See id. at 227. The Rev. Proc. 99-32

closing agreement created two accounts receivable from the CFC to BMC "for

Federal income tax purposes", which were deemed established as of the close of

BMC's 2005 and 2006 taxable years. See 4 The CFC paid the accounts

receivable in full within 90 days of the closing agreement. R The Commissioner

subsequently issued BMC a notice of deficiency for 2006 determining that the

accounts receivable constituted a retroactive increase in related party indebtedness

under section 965(b)(3) that reduced BMC's claimed section 965 DRD. See 4 at

228.

A.

Our Holding in BMC Software I

We began our analysis in BMC Software I with section 965. After

determining that section 965(b)(3) does not include an intent requirement, we

referred to dictionary definitions of the word "indebtedness" and concluded that,

for purposes of section 965(b)(3), indebtedness means "the condition of owing

money or being indebted." See BMC Software I, 141 T.C. at 232. We next

determined that an account receivable established under Rev. Proc. 99-32, supra,

meets the definition of indebtedness because an account receivable is "defined as

- 21 '[a]n account reflecting a balance owed by the debtor.'" See 4 at 232-233

(quoting Black's Law Dictionary 18 (8th ed. 2004)).

We then analyzed the effect of the parties' Rev. Proc. 99-32 closing

agreement on our analysis of section 965(b)(3). See 4 at 234. Relying on

Schering Corp. v. Commissioner, 69 T.C. 579 (1978), we stated that Rev. Proc.

99-32, supra, does not preclude all collateral Federal income tax consequences.

We held that the Rev. Proc. 99-32 closing agreement relieved the taxpayer of the

consequences that would have resulted absent the election but that "the accounts

receivable are deemed established for all Federal tax purposes". See BMC

Software I, 141 T.C. at 237. Because the closing agreement provided that the

accounts receivable were deemed to have been established during BMC's section

965(b)(3) testing period, we held that the accounts receivable qualified as a

retroactive increase in related party indebtedness during the testing period. We

therefore sustained the Commissioner's determination.2° See id. at 237-238.

2°We also held that the accounts receivable did not qualify for the trade

payables exception under Notice 2005-38, sec. 7.02(b), and Notice 2005-64, sec.

10.08, 2005-2 C.B. 471, 489.

- 22 B.

The U.S. Court of Appeals for the Fifth Circuit's Holding in BMC

Software II

BMC appealed our decision to the U.S. Court of Appeals for the Fifth

Circuit. The Court of Appeals first considered section 965(b)(3). See BMC

Software, Inc. v. Commissioner (BMC Software II), 780 F.3d at 674-675. The

Court concluded that: (1) because section 965(b)(3) provides that the final

calculation of the amount of related party indebtedness is to be made "as of the

close of the taxable year for which the election * * * is in effect" and (2) because

BMC's accounts receivable did not exist until the parties executed the closing

agreement in 2007, the accounts receivable were not related party indebtedness

under section 965(b)(3). See 4 at 675. Moreover, the Court of Appeals stated

that "[t]he fact that the accounts receivable * * * [were] backdated does nothing to

alter the reality that they did not exist during the testing period" because the

accounts were secondary adjustments to correct cash account imbalances and not a

correction of a prior year's accounts. M id.

The Court of Appeals then considered whether the parties contractually

agreed in the Rev. Proc. 99-32 closing agreement to treat the accounts receivable

as related party indebtedness despite the plain language of section 965(b)(3). See

at 676. Noting that the closing agreement did not mention section 965, the

- 23 Court of Appeals concluded that the standard closing agreement phrase "for

Federal income tax purposes" did not expand the scope of the contract to include

section 965. Otherwise, the Court of Appeals reasoned, the provisions in the

closing agreement regarding foreign tax credits and the tax implications of interest

payments would be surplusage. See id. Additionally, the Court of Appeals

applied the canon expressio unius est exclusio alterius, which means that "the

specificity and apparent comprehensiveness of an agreement's enumeration of a

category of things (here, tax implications) implies that things not enumerated are

excluded". Id. Because the closing agreement listed several tax implications with

specificity but did not mention others, such as section 965, the Court held that the

closing agreement "excluded those tax consequences which it failed to

enumerate."2¹ Id. at 676-677.

The Court of Appeals also distinguished Schering. The Court stated that

Schering involved a collateral tax consequence that flowed from an action that the

taxpayer had taken on the basis of a closing agreement, i.e., the payment of

accounts receivable established under the predecessor of Rev. Proc. 99-32, supra.

2¹Although the Court of Appeals did not find the closing agreement to be

ambiguous, it found that the extrinsic evidence proved that the parties did not

intend for the closing agreement to alter the plain meaning of sec. 965(b)(3). See

BMC Software, Inc. v. Commissioner, 780 F.3d 669, 677 (5th Cir. 2015), rev'g

141 T.C. 224 (2013).

- 24 However, the issue in BMC Software, Inc. was the tax consequences of the

establishment of the accounts receivable themselves, not any action that BMC had

taken as a result of the closing agreement. See BMC Software II, 780 F.3d at 678.

Therefore, the Court of Appeals reversed our holding in BMC Software I.

Absent a stipulation to the contrary, this case is appealable to the U.S. Court

of Appeals for the First Circuit, which has not yet considered the issue. See sec.

7482(b)(1)(B), (2). BMC Software II is therefore not binding on us in the instant

case. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970), afÕl, 445 F.2d 985

(10th Cir. 1971). However, given the reversal and the parties' arguments, the

instant case requires us to revisit our analysis in BMC Software I.

III.

Stare Decisis

The doctrine of stare decisis is important to this Court, and we are mindful

of its role in this case. In Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986), the

Supreme Court stated:

[T]he important doctrine of stare decisis * * * [is] the means by which

we ensure that the law will not merely change erratically, but will

develop in a principled and intelligible fashion. * * * While stare

decisis is not an inexorable command, the careful observer will

discern that any detours from the straight path of stare decisis in our

past have occurred for articulable reasons, and only when the Court

has felt obliged "to bring its opinions into agreement with experience

and with facts newly ascertained." Burnet v. Coronado Oil & Gas

CS, 285 U.S. 393, 412 (1932) (Brandeis, J., dissenting).

- 25 Our history does not impose any rigid formula to constrain the

Court in the disposition of cases. Rather, its lesson is that every

successful proponent of overruling precedent has borne the heavy

burden of persuading the Court that changes in society or in the law

dictate that the values served by stare decisis yield in favor of a

greater objective. * * *

This case presents issues on which a Court of Appeals has reversed our

prior decision. In such a scenario, "[c]learly * * * [we] must throughly reconsider

the problem in the light of the reasoning of the reversing appellate court and, if

convinced thereby, the obvious procedure is to follow the higher court."22 Bayer

v. Commissioner, 98 T.C. 19, 22 (1992) (quoting Lawrence v. Commissioner, 27

T.C. 713, 716-717 (1957), rev'd on other grounds, 258 F.2d 562 (9th Cir. 1958));

see also Trout v. Commissioner, 131 T.C. 239, 245 n.6 (2008) ("But nothing in

Golsen or in Lawrence precludes us from revisiting an issue, as we do here, when

the issue on which there has been an intervening reversal arises anew."). By

revisiting the issues in BMC Software I, we are not capriciously disregarding our

prior analysis but rather examining the issues in the light of a Court of Appeals'

opinion, which deserves careful attention and reflection.

22We apply this reasoning only when the current case is not appealable to

the reversing court. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff d,

445 F.2d 985 (10th Cir. 1971).

- 26 Moreover, the principles in BMC Software I are not entrenched precedent.

The issues in this case have come before us only once before, and no other

opinions rely on or cite our previous holding. See Estate of Bradley v.

Commissioner, 1 T.C. 518, 527 (1943) (holding that stare decisis was not an

impediment to overruling a prior opinion when only two other cases relied on it),

a_B, 140 F.2d 87 (2d Cir. 1944); cf Hesselink v. Commissioner, 97 T.C. 94, 99

(1991) (stating that the application of stare decisis was "particularly apropos"

because there were "numerous and consistent court opinions interpreting and/or

applying" the previous holding). To our knowledge, no other Court of Appeals

has spoken on the issues we consider today. Therefore, the important goals of

stare decisis to ensure the "evenhanded, predictable, and consistent development

of legal principles" and to "foster[] reliance on judicial decisions", see Payne v.

Tennessee, 501 U.S. 808, 827 (1991), are not served by our continued adherence

to our previous Opinion. There has been no predictable or consistent development

of the legal principles affecting this case. M Jefferson v. Commissioner, 50 T.C.

963, 967 (1968) (stating that stare decisis, "which arose from a necessity to

preserve the harmony and stability of the law, requires adherence by courts to a

principle of law [original emphasis] settled by a series of decisions" (last emphasis

added)); cf Stewart v. Commissioner, 127 T.C. 109, 114-116 (2006) (overturning

- 27 a prior Tax Court opinion when a Court of Appeals had reversed our earlier

opinion and we had examined the issue only once before); Lunsford v.

Commissioner, 117 T.C. 159, 164 (2001) (overruling a case that the Court had

decided in the early stages of its section 6320/6330 jurisprudence).

Generally, stare decisis is of particular importance in cases involving

contract rights, because reliance interests are involved, Payne, 501 U.S. at 828,

and cases involving statutory construction, because of the possibility of legislative

intervention, John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 131

(2008). Although contract rights are at issue here, we find it unlikely that the

Commissioner would have relied to his detriment on our Opinion in BMC

Software I by deciding to leave a section 965 provision out of future Rev. Proc.

99-32 closing agreements, especially given the advice memorandum and BMC's

appeal. We also find the possibility of congressional action on this issue to be low

because the section 965 election has expired.

On balance, we conclude that the importance of reaching the right result in

this case outweighs the importance of following our precedent. But ef. Burnet v.

Coronado Oil & Gas Co., 285 U.S. at 406 (Brandeis, J., dissenting) ("[I]n most

matters it is more important that the applicable rule of law be settled than that it be

- 28 settled right."). We therefore conclude that stare decisis does not prevent us from

reconsidering BMC Software I, and we do so below.

IV.

Petitioner's Rev. Proc. 99-32 Closing Agreement

We first examine petitioner's Rev. Proc. 99-32 closing agreement to

determine whether the parties contractually agreed to treat the accounts receivable

as related party indebtedness for purposes of the DRD.23

A.

Closing Agreements Generally

The Secretary is authorized to enter into closing agreements with taxpayers

pursuant to section 7121(a). Although certain closing agreements settle the

taxpayer's total tax liability for a particular period, a Form 906 closing agreement,

which is the type at issue here, is used to settle specific matters affecting tax

liability. See Manko v. Commissioner, 126 T.C. 195, 202 (2006); Estate of

Magarian v. Commissioner, 97 T.C. 1, 5 (1991).

A closing agreement is "final and conclusive", and it is binding on the

parties "as to the matters agreed upon". See sec. 7121(b); Estate of Magarian v.

Commissioner, 97 T.C. at 4-6. "Under section 7121 a court may not include as

part of the agreement matters other than the matters specifically agreed upon and

23We limit our analysis to whether the parties agreed to treat the accounts

receivable as related party indebtedness for purposes of the DRD. We do not

opine on whether the accounts receivable constituted debt for any other purpose.

- 29 mentioned in the closing agreement." Zaentz v. Commissioner, 90 T.C. 753, 766

(1988). The scope of a closing agreement is therefore strictly construed to

encompass only the issues enumerated in the closing agreement itself. Any

recitals in a closing agreement are not binding on the parties. See id. at 762.

However, recitals are explanatory and can give insight into the intent of the

parties. See Estate of Magarian v. Commissioner, 97 T.C. at 5; see also Rev. Proc.

68-16, sec. 6.05(3) ("It is important to distinguish between matters which are

merely informative and explanatory and matters which are being agreed upon.

The former should be segregated from the latter and should ordinarily be reflected

in the introductory recitals contained in the WHEREAS clauses".).

Closing agreements are contracts, and they are subject to the rules of

Federal common law contract interpretation. M Long v. Commissioner, 93 T.C.

5, 10 (1989) (citing United States v. Lane, 303 F.2d 1, 4 (5th Cir. 1962)), aff'd

without published opinion, 916 F.2d 721 (11th Cir. 1990). Contracts are

construed according to the intent of the parties as of the time of entering into the

agreement. R Intent is inferred from the four corners of the agreement where the

contract is unambiguous; extrinsic evidence may be used to discern intent where

the contract has ambiguities. Rink v. Commissioner, 100 T.C. 319, 325 (1993),

a_f[d, 47 F.3d 168 (6th Cir. 1995). The starting point for ascertaining the parties'

- 30 intent is the contract itself. See Nault v. United States, 517 F.3d 2, 4 (1st Cir.

2008) (quoting Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 135 (1st Cir.

2001)). The contract must be read as a whole, and the contract must be interpreted

in context. See Kolbe v. BAC Home Loans Servicing LP, 738 F.3d 432, 439-440

(1st Cir. 2013) (and cases cited thereat). This is because "[t]he meaning of words

* * * commonly depends on their context[.] * * * When the parties have adopted a

writing as a final expression of their agreement, interpretation is directed to the

meaning of that writing in the light of the circumstances." 2 Restatement,

Contracts 2d, sec. 202, cmt. b (1981).

B.

Analysis of Petitioner's Rev. Proc. 99-32 Closing Agreement

1.

The Four Corners of the Agreement

In BMC Software I, we held that a closing agreement that established

similar accounts receivable "for Federal income tax purposes" created related

party indebtedness under section 965(b)(3).24 We acknowledge that, in this case,

the closing agreement states that the accounts receivable were established (and

that petitioner treated them as "term loans") "for all Federal income tax purposes".

24Like the Commissioner in BMC Software I, respondent does not contend

that petitioner intended to directly or indirectly finance the sec. 965 dividend by

electing Rev. Proc. 99-32 treatment or entering into the Rev. Proc. 99-32 closing

agreement.

- 31 However, in BMC Software I we did not consider the context in which the parties

used the caption, which the rules of Federal common law contract interpretation

require us to do. We therefore interpret the closing agreement by giving proper

weight to the section 7121 jurisprudence and the closing agreement as a whole.

The parties entered into the closing agreement against the backdrop of

longstanding caselaw holding that "a court may not include as part of the

agreement matters other than the matters specifically agreed upon and mentioned

in the closing agreement." See Zaentz v. Commissioner, 90 T.C. at 766.

Comments in the IRM accompanying the IRS' Pattern Agreement, from which

much of the closing agreement's wording is derived, recognize and incorporate

this principle. IRM pt. 8.13.1-22(E) para. (1) states: "Matters expressly

determined in closing agreements are accorded finality under section 7121 of the

Code. Though certain inferences and substantially automatic consequences may

appear to logically flow from such determinations, these results cannot be

considered to be matters determined with finality unless expressly provided for in

the closing agreement."25 Additionally, the closing agreement is self-limiting.

25The Internal Revenue Manual (IRM) pt. 8.13.1-22(E) (Nov. 9, 2007) gives

this explanation for why the IRS' Pattern Agreement includes an appended table

that reports the effect on earnings and profits directly resulting from the sec. 482

allocations.

- 32 One of the separately negotiated recitals, while not binding on the parties,

expressly conveys the parties' intent to limit the scope of the closing agreement to

"certain issues identified below".26 Therefore, both the recitals in the closing

agreement itself and the relevant jurisprudence restrict the closing agreement to

matters specifically enumerated.

A caption taken verbatim from the IRS' Pattern Agreement is not a matter to

which the parties specifically agreed. It is not a determined clause that binds the

parties, but rather an introductory phrase that signals the transition from the

recitals to the determined clauses.27 See Rev. Proc. 68-16, sec. 6.05(3). Therefore,

our giving the phrase "for all Federal income tax purposes" a literal application

would be to ignore our mandate to interpret a contract in context and would

26We note that the closing agreement in BMC Software, Inc. did not include

such a recital. However, we are not convinced that this distinction alone, or the

parties' contentions regarding differences between the two closing agreements,

distinguish the closing agreements in this context.

27Rev. Proc. 68-16, sec. 6.05(3), 1968-1 C.B. 770, 779, states that "[e]ach

such clause should ordinarily be drafted with the view that it is a continuation of

the" caption. However, it also states that the matters being determined and agreed

upon are preceded by the caption and that the caption emphasizes the transition

from the recitals. This implies that the caption is not part of the matters to which

the parties agreed but rather suggests that the caption informs the syntax of the

determined clauses and not the substance. We do not take Rev. Proc. 68-16,

supra, to support the view that the caption transforms a narrow closing agreement

to a broad, sweeping one.

- 33 broaden the scope of the closing agreement beyond what the parties intended.28

S_e_e 17A C.J.S., Contracts, sec. 399 (2011); c£ 11 Williston on Contracts, sec.

32:10 (4th ed. 1999) ("Even absent a true conflict, specific words will limit the

meaning of general words if it appears from the whole agreement that the parties'

purpose was directed solely toward the matter to which the specific words or

clause relate."); see also New Seabury Co. Ltd, P'ship v. New Seabury Props.,

LLC (In re New Seabury Co. Ltd. P'ship), 450 F.3d 24, 35 (1st Cir. 2006) ("Courts

will not read language into a contract where it does not appear."); Estate of

Magarian v. Commissioner, 97 T.C. at 5-6 (holding that the taxpayer and the

28To the extent that the recital limiting the closing agreement to "certain

issues identified below" and the caption "for all Federal income tax purposes" are

inconsistent, we give greater weight to the recital. Both of the clauses are

introductory, coming before the "determined" clauses of the closing agreement.

However, the recital is a separately negotiated contract term while the phrase "for

all Federal income tax purposes" is part of the standard wording of the IRS'

Pattern Agreement. See 2 Restatement, Contracts 2d, sec. 203(d) (1981)

("[S]eparately negotiated or added terms are given greater weight than

standardized terms or other terms not separately negotiated."). But ef. Silva v.

Encyclopedia Britannica, Inc., 239 F.3d 385, 389 (1st Cir. 2001) (stating that

boilerplate contract provisions are not ipso facto invalid). Additionally, the recital

is a specific clause that defines the scope of the contract. The phrase "for all

Federal income tax purposes" is general wording. Specific terms are more likely

to express the intent of the parties than general terms and are given greater weight.

S_e_e 2 Restatement Contracts 2d, sec. 203(c) and cmt. (e); 11 Williston on

Contracts, secs. 32:10, 32:15 (4th ed. 1999).

- 34 Commissioner did not agree to additions to tax when the closing agreement did

not specifically mention them).

The determined clauses--in which the parties specifically stated to what they

agreed--established the accounts receivable as described in Rev. Proc. 99-32, sec.

4.01; provided for the rates and amounts of interest; and described the methods by

which ADBV paid the accounts, including the tax implications of the payments.

Certain matters with respect to the accounts, such as the tax consequences of

ADBV's payment of the account, were specifically enumerated. Any tax

implication of the establishment of the accounts themselves was not, and the

closing agreement does not mention section 965. See BMC Software II, 780 F.3d

at 676-677 (finding that the closing agreement in that case did not extend to

section 965 because that agreement enumerated other specific tax consequences).

Because the parties enumerated in considerable detail the tax consequences

of the closing agreement, we find that these specific clauses must be interpreted to

limit the phrase "for all Federal income tax purposes". We therefore hold that

when the parties signed the closing agreement they did not manifest an intent with

respect to section 965(b)(3). Instead we find that the parties' intent was to

reconcile the cash accounts of petitioner and ADBV with their adjusted tax

- 35 positions as a result of the section 482 primary adjustment. This was completely

unrelated to the section 965 DRD.

The dissent would have us give the phrase "for all Federal income tax

purposes" a literal interpretation and ignore the intent of the parties. The parties

signed a closing agreement that enumerated specific tax consequences, and section

965 was not specifically enumerated.2° Although this phrase is conspicuously

presented and both parties could read it, a literal interpretation of the boilerplate

phrase "for all Federal income tax purposes" would render surplusage the

provisions of the closing agreement that "lists the transaction's tax implications in

considerable detail." See BMC Software II, 780 F.3d at 676 ("If the parties

2°The dissent contends that specifically enumerating all tax consequences

was unnecessary because the closing agreement is "for all Federal income tax

purposes". In addition to not referencing sec. 965, the dissent notes that the

closing agreement did not reference sec. I1 (tax imposed) and sec. 6601 (interest

on underpayment). See dissenting op. pp. 50-51. However, those provisions are

still applicable to the closing agreement, but specific references were not

necessary. The closing agreement created the accounts receivable under Rev.

Proc. 99-32, supra, which states that the interest by the obligee is taxable income.

Therefore a reference to sec. 11 would be redundant. Additionally, sec. 301.71211(d)(2), Proced. & Admin. Regs. provides that "[a]ny tax or deficiency in tax

determined pursuant to a closing agreement shall be assessed and collected * * *

in accordance with the applicable provisions of law." IRM pt. 8.13.1.2.18 (Nov.

9, 2007), and Rev. Proc. 68-16, sec. 6.16, 1968-1 C.B. at 786, state that a closing

agreement should not determine interest liability unless there is an issue with

respect to interest liability, but that the interest will be assessed and collected. In

this case there is no issue with the underpayment interest.

- 36 agreed, in the boilerplate provision, to treat the accounts receivable as retroactive

indebtedness for all Federal tax purposes, then these additional provisions would

be surplusage." (Alteration in original)). We focus our analysis on specific tax

implications enumerated in the closing agreement as evidence of the parties' intent

rather than a general provision that is intended as a transition from the recitals to

the determined clauses.

We also read the holding in Schering Corp. v. Commissioner, 69 T.C. 579,

to be consistent with our holding. In Schering a U.S. corporation entered into a

Rev. Proc. 65-17 closing agreement that established accounts receivable to effect

secondary adjustments between the corporation and its Swiss CFC. The taxing

authority in Switzerland considered the CFC's payment of the account receivable

to be a taxable dividend, and the CFC paid the tax as a withholding agent for the

U.S. corporation.

Although the U.S. taxpayer's closing agreement stated that the repatriation

would be free of Federal income tax consequences, we allowed the taxpayer a

section 901 foreign tax credit with respect to the entire Swiss dividend tax. In so

doing, we looked to the closing agreement as a whole and held that the phrase

"free of further Federal income tax consequences" showed only the parties' intent

that the taxpayer would not have gross income upon receipt of the CFC's payment

- 37 of the account "and that it was not intended to determine any collateral tax

consequences disadvantageous to petitioner which might ensue upon the payment

of that sum." Id. at 595. In other words, we read the disputed phrase in context

rather than applying a literal interpretation that would expand the closing

agreement past its intended scope. This is also the approach we take with

petitioner's closing agreement.

In BMC Software I, 141 T.C. at 236, we interpreted Schering to hold that

"[t]he closing agreement did not preclude all tax consequences" and therefore used

it as support for our holding that BMC's closing agreement established accounts

receivable "for all Federal income tax purposes", including under sec. 965(b)(3).

Schering, however, requires a more nuanced reading. The Court in Schering

looked to the structure and context of the closing agreement as a whole to

determine what the parties intended the scope of the contract to be, which is what

we do today.

We also held in Schering that Rev. Proc. 65-17, 1965-1 C.B. 833, which we

"construed to mean only that the United States parent is not required to recognize

gross income under section 301 upon receipt of payment of the account

receivable", did not preclude the taxpayer's ability to take a foreign tax credit. M.

at 597-598. Similarly, we do not read Rev. Proc. 99-32, supra, to engender a

- 38 particular result under section 965. Rev. Proc. 99-32, sec. 4.01, states that it

allows a U.S. taxpayer to establish and pay an account receivable to repatriate the

cash attributable to a primary adjustment "without the Federal income tax

consequences of the secondary adjustments that would otherwise result from the

primary adjustment." This phrase refers only to the revenue procedure's purpose

of allowing a taxpayer to avoid deemed dividend treatment. Although the revenue

procedure treats payment of the account receivable "as a payment of the account

for all Federal income tax purposes", see id. sec. 4.01(4), it does not address any

tax implications of establishing an account.

2.

Extrinsic Evidence of the Parties' Intent

Assuming arguendo that the parties' Rev. Proc. 99-32 closing agreement is

ambiguous, we examine extrinsic evidence of the parties' intent and apply

principles of contract interpretation to that evidence. See Elrod v. Commissioner,

87 T.C. 1046, 1066 (1986) (explaining that we consider extrinsic evidence to

interpret contract terms or to explain the purpose and intention of contracting

parties when the contract is ambiguous). Under the rules of Federal common law

contract interpretation, when contracting parties have attached different meanings

to a contract or a contract term, the ambiguous term "is interpreted in accordance

with the meaning attached by one of them if at the time the agreement was made

- 39 * * * that party did not know [or had no reason to know] of any different meaning

attached by the other, and the other knew [or had reason to know] the meaning

attached by the first party". 2 Restatement, Contracts 2d, sec. 201(2); see Rink v.

Commissioner, 100 T.C. at 326-327. Respondent contends that, if the closing

agreement is ambiguous, petitioner had reason to know of respondent's intent to

treat the accounts receivable as related party indebtedness because he stated that

position (1) in Notice 2005-64, sec. 10.06 and (2) to petitioner orally and in the

NOPA in 2007. Respondent therefore asserts that petitioner should be bound to

respondent's understanding of the closing agreement.

Assuming arguendo that petitioner knew or had reason to know of

respondent's position--despite the advice memorandum's recommendation that all

closing agreements under Rev. Proc. 99-32, supra, include a provision addressing

section 965(b)(3),3° and despite the fact that the NOPA was issued two years

before the closing agreement and apparently did not mention what respondent's

position would be if the parties entered into a closing agreement--we disagree with

respondent that petitioner should be bound to respondent's interpretation of the

closing agreement. By definition NOPAs are not final determinations but rather

3°The advice memorandum was issued after the execution of BMC's closing

agreement but before the execution of petitioner's.

- 40 explain proposed changes to a taxpayer's return. See IRM pt. 4.46.3.3.3.4(1)(d)

(Dec. 29, 2009). Under the IRM, "unless the taxpayer's agreement to an issue is

fully documented by the signing of Form 870, the issue will be treated as

unagreed". Id. Petitioner did not agree to the adjustments, which put respondent

on notice that petitioner did not agree with his position regarding section 965.

Under Federal common law, one party is bound to the other party's

understanding of an ambiguous term only if the other party did not know or have

reason to know of the first party's understanding of that term. Even assuming that

petitioner knew of respondent's interpretation of the closing agreement,

respondent had reason to know of petitioner's understanding as well. Both parties

were aware before the execution of the closing agreement that section 965(b)(3)

was an issue, yet the closing agreement did not include any provision addressing

it. The extrinsic evidence shows that the parties did not reach an agreement with

respect to section 965(b)(3), and we will not read a term into the closing

agreement to which the parties did not agree.

V.

Applicable Federal Law

Closing agreements do not preclude the imposition of otherwise applicable

law unless the parties explicitly agree on that point. Bush v. United States, 84

Fed. Cl. 90, 95 (2008) (citing Estate of Magarian v. Commissioner, 97 T.C. at 6-

- 41 7)). The Rev. Proc. 99-32 closing agreement does not provide for a particular

result under section 965(b)(3). We therefore consider whether section 965 itself

requires that the parties treat the accounts receivable as retroactive related party

indebtedness that reduces the amount of petitioner's claimed DRD.

Section 965(b)(3) is titled "Reduction of benefit if increase in related party

indebtedness" and provides, inter alia:

The amount of dividends which would (but for this paragraph) be

taken into account under subsection (a) shall be reduced by the excess

(if any) of-(A) the amount of indebtedness of the controlled foreign

corporation to any related person (as defined in section

954(d)(3)) as of the close of the taxable year for which the

election under this section is in effect, over

(B) the amount of indebtedness of the controlled foreign

corporation to any related person (as so defined) as of the close

of October 3, 2004.

In BMC Software I, 141 T.C. at 232-233, we determined that a Rev. Proc. 99-32

account receivable was "indebtedness" under section 965(b)(3) by reference to

Black's Law Dictionary, which defines indebtedness as "the condition of owing

money or being indebted" and an account receivable as an "account reflecting a

balance owed by a debtor". Because we held that the closing agreement for all

Federal income tax purposes created accounts receivable that were deemed

- 42 established within BMC's testing period, we held that the establishment of the

accounts constituted an increase in related party indebtedness under section

965(b)(3). See id. at 238.

The U.S. Court of Appeals for the Fifth Circuit, holding that the closing

agreement did not alter the application of section 965, focused on the timing

requirement in subsection (b)(3). It stated that "[t]he text of * * * [section]

965(b)(3) specifically requires that the determination of the final amount of

indebtedness be made 'as of the close of the taxable year for which the [section

965] election * * * is in effect.'" BMC Software II, 780 F.3d at 674-675. BMC's

election year was 2006. "[A]s of" 2006 the accounts receivable did not exist and

indeed could not have existed until the signing of the closing agreement in 2007,

which was after the testing period had closed. R at 675. Even though the closing

agreement deemed the accounts established in 2006, it did not change the reality

that the accounts did not actually exist in that year. Therefore, the Court held that

the accounts did not constitute an increase in related party indebtedness during

BMC's testing period. R at 676.

Upon consideration, we agree with the Court of Appeals' analysis that,

under the plain meaning of section 965(b)(3), a CFC has an increase in related

party indebtedness only if the indebtedness existed "as of" the close of the election

- 43 year. Petitioner's testing period closed long before the execution of its Rev. Proc.

99-32 closing agreement, and the accounts receivable did not exist before the

closing agreement. Respondent concedes that ADBV would not have an increase

in related party indebtedness if petitioner did not make an election under Rev.

Proc. 99-32, supra, and did not execute the closing agreement. Therefore, the only

way in which the accounts receivable could have been established "as of" the

close of petitioner's election year is if the closing agreement's deemed established

dates applied to the application of section 965(b)(3). We held supra that the

parties did not reach an agreement in their Rev. Proc. 99-32 closing agreement

with respect to section 965(b)(3), and we do not take the deemed establishment

dates of the accounts to alter subsection (b)(3).

We also find, as the Court of Appeals did, that Notice 2005-64, sec. 10.06,

in which the IRS states that "accounts payable" are treated as debt under section

965(b)(3), is wholly unpersuasive because it lacks any analysis and runs counter to

the plain meaning of subsection (b)(3). See BMC Software II, 780 F.3d at 676. It

also conflicts with Notice 2005-38, sec. 7.05(b), 2005-1 C.B. at 1112, which

- 44 comports with the statute, stating: "A U.S. shareholder determines the amount of

the related party indebtedness of its CFC on the last measurement date".3¹

Accordingly, we hold under section 965(b)(3) the accounts receivable did

not constitute an increase in related party indebtedness of ADBV during the

testing period.

VI.

Conclusion

We hold that the accounts receivable did not constitute indebtedness under

section 965(b)(3). Petitioner is therefore entitled to the entire amount of its

claimed DRD under subsection (a).32 BMC Software I is overruled.

3¹Moreover, a representative from ADBV did not sign the Rev. Proc. 99-32

closing agreement, and ADBV was not a party to that agreement. Parties are not

contractually bound until they mutually assent to bind themselves to an agreement.

Salem Laundry Co. v. New England Teamsters & Trucking Indus. Pension Fund,

829 F.2d 278, 280 (1st Cir. 1987) (citing 1 Williston on Contracts, sec. 18, at 32

(3d ed. 1954)). Sec. 965(b)(3) addresses only related party "indebtedness of the

controlled foreign corporation." (Emphasis added.) Because the Rev. Proc. 99-32

closing agreement established the accounts receivable and ADBV was not a party

to that agreement, the accounts cannot be indebtedness "of the controlled foreign

corporation", ADBV. C[ Ellinger v. United States, 470 F.3d 1325, 1337-1338

(11th Cir. 2006) (holding that a closing agreement between one corporation and

the IRS stating that certain transfers were bona fide debts did not affect the

characterization of the transfers with respect to other, related corporations).

32We do not reach the parties' arguments with respect to the trade payables

exception.

- 45 We have considered the parties' remaining arguments, and to the extent not

discussed above, conclude those arguments are irrelevant, moot, or without merit.

To reflect the foregoing,

Decision will be entered for

petitioner.

Reviewed by the Court.

FOLEY, VASQUEZ, GALE, THORNTON, HOLMES, PARIS,

KERRIGAN, BUCH, LAUBER, NEGA, PUGH, and ASHFORD, D., agree with

this opinion of the Court.

- 46 LAUBER,.[., concurring: I join the opinion of the Court without reservation and write briefly in response to the dissent. The dissent is based on the presence of the word "all" in the introduction to the Analog Devices closing agreement, a word that does not appear in the introduction to the BMC Software closing

agreement. Although I am a strong advocate of paying close attention to texts, I

think the dissent points to a distinction without a difference.

First, as emphasized by the Court of Appeals for the Fifth Circuit in BMC

Software v. Commissioner, 780 F.3d 669, 676 (5th Cir. 2015), rev'g 141 T.C. 224

(2013), and by the Court here, see op. Ct. p. 11, the introductory reference to

"Federal income tax purposes" is part of the boilerplate that appears in all closing

agreements. It simply recites that the parties are entering into the closing agreement to resolve a Federal tax dispute (as opposed to a corporate or an antitrust

dispute) and that the agreements within the body of the document are made for

Federal income tax purposes. This is truly boilerplate, in part because the point it

makes is obvious. This introduction does not itself constitute an agreement but

simply tells us the purpose for which the parties are entering into the specific,

itemized agreements that follow. The precise form this boilerplate takes should

not be outcome determinative, as the dissent would make it.

- 47 Second, I do not believe that the presence or absence of the word "all"

changes the meaning. Suppose Taxpayer X reaches an agreement with the Internal

Revenue Service that, "for purposes of computing X's Federal income tax liability

for 2015, her itemized deductions shall be $20,000." Would the meaning change

if the agreement read "for all purposes of computing X's Federal income tax liability for 2015"? I do not think so. When we say "for purposes" without any conditions, we mean "for all purposes." In short, I see no meaningful distinction between these two forms of boilerplate.

It would be different, I think, if the parties had agreed, in the body of the

closing agreement, that the accounts receivable in question "shall be regarded as

bona fide indebtedness for all Federal income tax purposes." But they did not

agree to that. They agreed only that accounts receivable would be established and

would be "deemed to have been created as of the last day of the taxable year to

which * * * [they relate]."

Under Rev. Proc. 99-32, 1999-2 C.B. 296, this treatment is elective with the

taxpayer. The parties entered into the closing agreement in order to square the accounts between the U.S. parent and the foreign affiliate and get the cash in the

right place without payment of a taxable dividend. It makes little sense to treat the

- 48 deemed retroactive creation of accounts receivable, to which the parties agreed for

a very limited purpose in 2009, as actual debt that existed in 2005.

In an effort to justify giving the word "all" outcome-determinative force, the

dissent quotes a portion of a sentence from the Court of Appeals' BMC Software

opinion. The dissent implies that the Court of Appeals noted the absence of the

word "all" from the closing agreement and suggested that it might have decided

the case differently if the word "all" had been included. See dissenting op. p. 51.

That is not at all what the Court of Appeals said or implied, and this selective

quotation is taken out of context.

The Court of Appeals rejected the Commissioner's submission that the parties had agreed to backdate the accounts receivable for all Federal tax purposes,

concluding instead that the parties had agreed to backdate the accounts receivable

only for "those tax consequences that * * * [the closing agreement] expressly

enumerates." BMC Software, Inc., 780 F.3d at 677. The Court of Appeals based

this conclusion on two canons of construction: expressio unius est exclusio

alterius and the antisurplusage canon.

The sentence from which the dissent's squib is excerpted was part of this

analysis and reads in full as follows: "If the parties agreed, in the boilerplate

- 49 provision, to treat the accounts receivable as retroactive indebtedness for all

federal tax purposes, then these additional provisions would be surplusage." R at

676. The Court of Appeals in this sentence was not saying that it might have

reached a different outcome if the boilerplate phrase had included the word "all."

It was saying that the boilerplate phrase (however drafted) could not have the

all-encompassing meaning the Commissioner had ascribed to it because that

would render surplusage the provisions of the closing agreement that "list[] the

transaction's tax implications in considerable detail." Ib4 The same logic applies to the closing agreement before us today, and I thus concur fully in the opinion of the Court.

MARVEL, GALE, HOLMES, BUCH, NEGA, and ASHFORD, H., agree

with this concurring opinion.

- 50 GUSTAFSON, J., dissenting: The taxpayer executed an agreement with the

Internal Revenue Service that provides (with boldface added here):

NOW IT IS HEREBY DETERMINED AND AGREED, for

all Federal income tax purposes that: * * *

3)

Accounts Receivable Established by Taxpayer.

a)

Taxpayer has established intercompany Accounts

Receivable, set forth below, which were recorded

on Taxpayer's books and treated as term loans to

Controlled Entity reflecting the following

balances, each such Account Receivable being

deemed to have been created as of the last day

of the taxable year to which it relates.

Today the Tax Court effectively edits this provision to delete "all" and to provide

instead that the agreement is only for some Federal income tax purposes,

excluding the dividends received deduction of section 965. I would not do so.

The agreement is on Form 906, "Closing Agreement on Final Determination

Covering Specific Matters". The "specific matters" it addresses are the royalties

deemed paid to the taxpayer by its subsidiary, the resulting increase in the

taxpayer's income, and the resulting accounts receivable and payable on the books

of the taxpayer and the subsidiary. The agreement does not specifically mention

section 965 or the dividends received deduction. Likewise, it does not mention

section 6601 or the underpayment interest yielded by the agreement, nor even

- 51 section 11 or the income tax liability yielded by the agreement. Such specific

mentions were not necessary. The agreement is "for all Federal income tax

purposes" (emphasis added), and that would include sections 11, 6601, and 965.

We reconsider section 965(f)(3) because of the reversal by the U.S. Court of

Appeals for the Fifth Circuit of our decision in BMC Software, Inc. v.

Commissioner, 141 T.C. 224 (2013), rev'd, 780 F.3d 669 (5th Cir. 2015).

However, the closing agreement at issue in BMC Software lacked the word "all"

(providing instead that it was "AGREED for federal income tax purposes"); and

BMC Software was therefore expressly not an instance in which "the parties

agreed, in the boilerplate provision, to treat the accounts receivable as retroactive

indebtedness for all federal tax purposes". 780 F.3d at 676 (emphasis in original).

We do not know how that court might decide this issue where, as here, the parties

d_id agree as to "all Federal income tax purposes". (Emphasis added.)

In BMC Software, the Court of Appeals invoked the anti-surplusage canon,

and the majority attempts to do the same here, see op. Ct. p. 23, but for materially

different language. That canon tells us to prefer an interpretation that gives

meaning to all the contractual provisions and renders none surplus. The canon is

not properly consulted to save one contractual provision from redundancy by

giving no effect to another contractual provision, but that is what the Tax Court

- 52 does today: It gives no meaning whatsoever to "all" but decides instead that "all"

is simply to be ignored; and it violates the canon by rendering that word itself to

be surplusage. As to the expressio unius est exclusio alterius canon invoked in

BMC Software by the Court of Appeals and in the concurring opinion, "The

doctrine properly applies only when the unius (* * * the thing specified) can

reasonably be thought to be an expression of all that shares in the grant * * *

involved." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal

Texts 107 (2012). Particular consequences enumerated in a closing agreement

cannot reasonably be thought to implicitly exclude other consequences where the

opening words of the agreement explicitly provide for "all" consequences.

The majority asserts, see op. Ct. p. 32, that this phrase "is not a matter to

which the parties specifically agreed." The word "specifically" saves this

statement from being an outright error, since evidently the parties did not bargain

over the wording of this phrase. However, the parties did agree to this wording

when they signed the agreement. This wording was not foisted on an

unrepresented or unsuspecting taxpayer,¹ or rendered in fine print, or hidden in a

¹Rather, as respondent correctly notes, "The material terms of the contract

were first detailed in a letter, written by petitioner six days after respondent

confirmed that petitioner was eligible for Revenue Procedure 99-32 treatment.

Ex. 43-J. In that letter, petitioner wrote regarding the accounts receivable that

(continued...)

- 53 footnote, or even inserted in the midst of other terms of the agreement. It is

conspicuously presented as the first words that follow "AGREED". The

concurring opinion states, "This introduction does not itself constitute an

agreement but simply tells us the purpose for which the parties are entering into

the specific, itemized agreements that follow." See Lauber op. p. 46. On the

contrary, the term "IT IS HEREBY DETERMINED AND AGREED, for all

Federal income tax purposes that" is not a mere introduction or preface to the

agreement but rather is the operative language that makes the document an

agreement.

The majority, see op. Ct. pp. 32-33, 37, explicitly decides not to "giv[e] the

phrase 'for all Federal income tax purposes' a literal application", but I would do

so.

COLVIN, GOEKE, and MORRISON, D., agree with this dissent.

¹(...continued)

'payment within the 90-day period and any prepayment will be treated as a

payment of the intercompany account for all Federal income tax purposes.'

(emphasis added)."