T.C. Memo. 1998-54

UNITED STATES TAX COURT

MICROSOFT CORPORATION, Petitioner v

. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16878-96. Filed February 10, 1998.

Michael P. Boyle

, James M. O'Brien , and John M. Peterson

,

for petitioner.

Beth L. Williams

, William A. McCarthy

, David P. Fuller , and

John M. Altman , for respondent.- 2 -

1 Unless otherwise indicated, all section references are

to the Internal Revenue Code as in effect for the matter under

consideration, and all Rule references are to the Tax Court Rules

of Practice and Procedure. MEMORANDUM OPINION

JACOBS, Judge : This matter is before the Court on the

parties' cross-motions for partial summary judgment. Both motions

were filed pursuant to Rule 121. 1

The issue presented by these motions is whether respondent is

barred by the expiration of the statutory per iod of limitations

f rom recalculating the amount of petitioner's affiliated group's

combined taxable income under the section 936(h) profit-s p lit

method for the taxable years ended June 30, 1990 and 1991. In this

regard, we must interpret a restricted consent extending the

limitation periods for 1990 and 1991 to a date subsequent to the

issuance of the notice of deficiency to determine whet her the

language contained therein is sufficiently broad to permit

respondent to recalculate petitioner's affiliated group's combined

taxable income under the section 936(h) profit-split method for the

aforementioned years. Both parties have submitted memoranda of law

in support of their respective motions.

Background

Microsoft Corporation (Microsoft or petitioner), a Washington

corporation, had its principal plac e of business in Redmond,- 3 -

2 The use herein of the term "manufactured" or "produced"

is not meant to be dispositive of whether Microsoft Puerto Rico,

Inc. (MS-Puerto Rico), satisfied the significant business

presence test of sec. 936(h)(5)(B)(i) and (ii). Washington, at the time the petition was filed. Microsoft, as the

common parent of an affiliated group of corpora tions, filed a

consolidated U.S. Corporation Income Tax Return (Form 1120) for

taxable year ended June 30, 1990 (the 1990 year), on March 15,

1991, and for taxable year ended June 30, 1991 (the 1991 year), on

March 14, 1992. Microsoft Puerto Rico, Inc. (MS-Puerto Rico), a

Delaware corporation, is a wholly owned subsidiary of Microsoft.

Section 936 Possessions Tax Credit

During 1990 and 1991, M S-Puerto Rico manufactured 2 (by

duplicating from a master diskette furnished by Microsoft)

software-encoded diskettes at its 45,000-square-foot facility in

Humacao, Puerto Rico. These diskettes were sold to Microsoft for

packaging with othe r components and distribution to customers as

standardized, mass-marketed software products. On its 1990 Federal

corporate income tax return, MS-Puerto Rico elected to be taxed as

a poss essions corporation under section 936 and to report its

taxable income pursuant to the profit-split method under section

936(h)(5)(C)(ii). These elections continued during the 1991 year.

Section 936 entitles certain qualifying domestic corporations

(the possessions corporation) to elect to claim as a poss essions

tax credit (the section 936 credit) against its U.S. tax liability- 4 -

3 For a discussion of the historical development of sec.

936, see Coca-Cola Co. & Subs. v. Commissioner , 106 T.C. 1

(1996). The sec. 936 credit was terminated, effective for all

tax years after Dec. 31, 1995, with a limited phaseout until Dec.

31, 2005. Small Business Job Protection Act of 1996, Pub. L.

104-188, sec. 1601(a), 110 Stat. 1827. an amount equal to that p ortion of its U.S. tax that is

attri butable to certain of its possession-source taxable income.

Sec. 936(a)(1). 3 To qualify for the section 936 credit, the

possessions corporation (here, MS-Puerto Rico) must show that: (1)

80 percent or more of its gross income for the 3-year period

immediately preceding the taxable year for which the credit is

elected was derived from sources within a possession of the United

States (here, Puerto Rico); and (2) 75 percent or more of its gross

incom e for that period was derived from the active conduct of a

trade or business within the U.S. possession. Sec. 936(a)(2).

If the possessions corporation qualifies for the section 936

credit, it may further elect to compute its taxable income under

the profit-split method (described in section 936(h)(5)(C)(ii))

provided it satisfies the "significant business presence" test with

respect to its product (here, the diskettes). Sec. 936(h)(5)(B)(i).

This test requires that, among other things, the electing

possessions corporation manufacture or produce the product in the

U.S. possess ion within the meaning of section 954. Sec.

936(h)(5)(B)(ii).- 5 -

4 Under sec. 1504(b)(4), MS-Puerto Rico was not eligible

to be a member of petitioner's affiliated group for filing 1990

and 1991 consolidated Federal corporate income tax returns. Under the profit-split method, taxable income is that amount

equal to 50 percent of the "combined taxable income" of the

affiliated group (organizations other than foreign affiliates owned

directly or indirectly by the same interests as provided in section

482 ) derived from sales (known as covered sales) of units of the

product produced by the qualifying possessio n s corporation to

persons other than members of the affiliated group (i.e., unrelated

parties) or to foreign affiliates. Sec. 936(h)(5)(C)(ii)(I), (IV).

The method for computing the combined taxable income of the

affiliated group is provided in section 936(h)(5)(C)(ii)(II). See

Coca-Cola Co. & Subs. v. Commissioner

, 106 T.C. 1 (1996), relating

to the c omputation of combined taxable income under the profitsplit method. (Respondent concedes that MS-Puerto Rico qualified as

an affiliate of petitioner for purposes of the profit-split method

elec tion. 4 ) Where the profit-split method election is in effect,

the combined taxable income of the affiliated group is allocated 50

percent to the electing possession corporation (here, MS-Puerto

Rico). The remaining 50 percent is allocated to the appropriate

domestic member(s) (other than the electing corporation) of the

affiliated group (h ere, petitioner) and treated as income from

sources within the United States. Sec. 936(h)(5)(C)(ii)(III).- 6 -

MS-Puerto Rico reported a 1991 combined taxable income of

$102,551,316 att ributable to the covered sales of diskettes

manufactured in Puerto Rico to unrelated third parties and foreign

affiliates. After applying the profit-split method, MS-Puerto Rico

reported its 1991 taxable income to be $51,275,658. As a

consequence of MS-Puerto Rico's profit-split method election and

computation of the combined taxable income, p etitioner reported

$102,551,316 as combined taxable income and claimed a $51,275,658

combined taxable income deduction on its 1991 consolidated Federal

corporate income tax return.

Examination of Petitioner

Respondent conducted an examination of petitioner's 1990 and

1991 Federal corporate income tax returns which lasted more than 3

years. During this audit, respondent issued information docum ent

requests (IDR's). Approximately 30 of these IDR's sought

information pertaining to MS-Puerto Rico's software duplication

operations and the prices charged to petitioner by uncontrolled

software duplicators. Another six IDR's requested information

pertaining to h ow MS-Puerto Rico calculated the combined taxable

income for purposes of applying the profit-split method.

On August 29, 1 995, respondent issued Form 5701, Notice of

Proposed Adju stment (NOPA), which proposed to disallow MS-Puerto

Rico's election of the profit-split meth od. The NOPA indicated

that MS-Puerto Rico did not qualify for the profit-split method- 7 -

election because it failed to maintain a significant business

presence in Puerto Rico with respect to the diskettes under section

936(h)(5)(B)(i). Consequently, respondent recalculated the prices

at which MS-Puerto Rico sold its diskettes to Microsoft and

redetermined MS-Puerto Rico's taxable income under the transfer

pricing rules of section 482, as provided under section 936(h)(3).

The NOPA did not refer to any recalculation of the combined taxable

income.

A report entitled " Report for Disallowance of Election Out

Provisions of Section 936(h)", prepared by Thoma s McDonell (the

McDonell report), an Internal Revenue Service team coordinator, was

attached to the NOPA. The McDonell report explained the proposed

adjustment:

The Internal Revenue Service is proposing to increase

taxable income by $1,366,918 for the year ending June 30,

1990 and $43,771,224 for the year ending June 30, 1991 in

determining Microsoft Corporation tax liability. The

increase to taxable income is based on a determination

that diskette duplication activities by Microsoft

Corporation's wholly owned subsidiary Microsoft Puerto

Rico, Inc. do not qualify for the profit split provisions

of Internal Revenue Code section 936(h). This

determination is based primarily on the conclusion that

diskette duplication is not manufacturing as defined by

sections 936 and 954 of the Code.

Throug h out the audit, both petitioner and MS-Puerto Rico

executed Forms 872, Consents to Extend the Time to Assess Tax, with

respect to the 1990 and 1991 tax years. The first three of these

extension consents were unrestricted and per mitted respondent to- 8 -

assess tax against petitioner with respect to any issue. The first

unrestricted consen t, executed on October 7, 1994, extended the

limitations period until June 30, 1995; the second unrestricted

consent, executed on May 8, 1995, extended the limitations period

until December 31, 1995; and the third unrestricted consent,

executed on November 9, 1995, extended the limitations period until

March 15, 1996.

On January 11, 1996, both petitioner and MS-Puerto Rico

executed restricted consents to extend the limitations period for

the 1990 and 1991 tax years to December 31, 1996. The restricted

consent executed by petitioner read, in pertinent part, as follows:

RESTRICTIVE LANGUAGE

The amount of any deficiency assessment is to be

limited to that resulting from the following two

potential adjustments, including any consequential

changes to other items based on such adjustments:

(1) The Service's proposed adjustment relating to

the disallowance of Microsoft's use of the profit split

method of computing taxable income for purposes of

section 936(h) of the Internal Revenue Code of 1986 with

respect to its transactions with Microsoft Puert o Rico

and any transfer pricing adjustments resulting from such

disallowance; and

(2) The Service's proposed adjustments relating to

the taxpayer's treatment of subsidiary and OEM royalties,

respectively, as income from qualifying export property

for FSC purpose s pursuant to section 927(a) of the

Internal Revenue Code of 1986.

The re stricted consent executed by MS-Puerto Rico contained

nearly identical restrictive language to that of petitioner's, but- 9 -

pertained only to the section 936 issue. The cross-motions before

us concern only the section 936 issue, and not the FSC issue.

On the same date that the restricted consents were executed,

respondent issued a "30-day letter" and a revenue agent report

(RAR) that followed the adjustments in the NOPA. The RAR made no

reference to the recalculation of the combined taxable income. The

RAR stated that "The Service is challenging this profit split

deduction because the activities in the Puerto Rico facility do not

meet the definition of manufacturing as required in IRC 954."

Notices of Deficiency

On May 9, 1996, respondent issued two notices of deficiency,

one for petitioner's 1987, 1988, and 1989 tax years and the other

for petitioner's 1991 tax year. A notice was not issued with

respect to petitioner's 1990 tax year because respondent's

adjustments left petitioner in an overpayment position for that

year. However, the 1987, 1988, and 1989 tax year deficiencies

relate to excess business and foreign tax credits that arose in

1990. See sec. 6501(h).

In the notice of deficiency for the 1991 tax year (the notice

before us), respondent determined an $8,810,992 deficienc y. The

1991 deficiency arose, in part, because of respondent's

disallowance of petitioner's claimed combined taxable income

deducti on as computed under MS-Puerto Rico's election of the

profit-split method. The notice of deficiency stated:- 10 -

You have not established that you quali fy to elect the

profit split method under Internal Revenue Code Section

936(h) and the Income Tax Regulations thereunder.

Accordingly, your taxable income ha s been increased in

the amounts of $1,366,918.00 and $43,771,224.00 for the

taxable periods ending June 30, 1990, and June 30, 1991,

respectively.

After disallowing the profit-split method election, respondent

recomputed petitioner's combined taxable income deducti on to be

$7,504,434 (rather than $51,275,658) by redetermining MS-Puerto

Rico's taxable income for 1991 pursuant to section 936 (h)(1)-(4)

(the methods used for determining taxable income when the profitsplit method is not properly elected) and section 482 (the transfer

pricing rules).

Filing of the Petition and Answers

On August 5 , 1996, petitioner filed a petition contesting

respondent's determinations that MS-Puerto Rico was not qualified

to elect the profit-split method. Respondent filed an answer to

the petition on October 8, 1996, denying any error with respect to

the determination that MS-Puerto Rico was not qu alified to elect

the profit-split method. In the answer, respondent admitted that

the basis f or the disallowance of the combined taxable income

deduction was MS-Puerto Rico's failure to satisfy the significant

business presence test.

On January 22, 1997, respondent filed a Motion for Leave to

Amend Answer. In the motion, respondent sought to raise the- 11 -

alternative issue that if MS-Puerto Ric o qualified to elect the

profit-split met hod, then MS-Puerto Rico failed properly to

calc ulate the combined taxable income under that method. On

February 25, 19 97, petitioner filed a Notice of Objections to

Respondent's Motion For Leave to Amend Answer. On March 17, 1997,

respondent filed a response to petitioner's objections. By Order

dated March 17, 1997, we granted respondent's motion and permitted

the filing of the Amended Answer. The Order stated that respondent

was to bear the burden of proof with respect to the adjustment

raised by the alternative issue (the alternative adjustment). In

its April 25, 1997, Reply to Amendment to Answer, petitioner raised

as an affirmative defense the claim that respondent was time barred

from making the alternative adjustment under section 6501 because

the limitations period for assessment had expired.

On February 10, 1 997, petitioner moved for partial summary

judgme nt on the issue of whether MS-Puerto Rico satisfied the

significant business presence test and thus qualified to elect the

profit-split method. After extensive pleadings and a hearing, we

denied petitioner's motion for partial summary judgment on June 18,

1997.

On Novem ber 4, 1997, respondent moved for partial summary

judgment on the issue of whether the restrictive consent agreement

encompassed respondent's alternative adjustment; namely, the

recalculation of the combined taxable income. On December 5, 1997,- 12 -

petitioner file d a cross-motion for partial summary judgment

asserting that respondent is time barred from raising the

alternative adjustment.

Discussion

Summary judgment is appropriate where the pleadings show that

no genuine issue of material fact exists and that a decision may be

rendered as a matter of law. Rule 121(b); S undstrand Corp. &

Consol. Subs. v. Commissioner

, 98 T.C. 518, 520 (1992), affd. 17

F.3d 965 (7th Cir. 1994); Jacklin v. Commissioner

, 79 T.C. 340, 344

(1982). A partial summary adjudication may be made which does not

dispose of all the issues in the case. Rule 121(b); N aft el v.

Commissioner , 85 T.C. 527, 529 (1985).

With respect to the matter before us, there are no material

facts in dispute, and the pleadings, briefs, and affidavits before

us are sufficient to render a decision as a matter of law. Thus,

summary adjudication is appropriate under Rule 121.

Generally, income taxes must be assessed within 3 years from

the date the tax return is filed. Sec. 6501(a). However, the

period of limitations may be extended by the parties through the

execution of Form 872 or 872-A:

Where, before the expiration of the time prescribed in

this section for the assessment of any tax i mposed by

this title, except the estate tax provided in chapter 11,

both the Secretary and the taxpayer have con sented in

writing to its assessment after such time, the tax may be

assessed at any time prior to the expiration of the

period agreed upon. The period so agreed upon may be- 13 -

extended by subsequent agreements in writing made before

the expiration of the period previously agreed upon.

Sec. 6501(c)(4).

In analyzing a consent to extend the limitations period, it is

well settled that such a consent is not a contract but rather a

unilateral waiver of a defense by the taxpayer. S tange v.

Commissioner

, 282 U.S. 270, 276 (1931); Kronish v. Commissioner

, 90

T.C. 684, 693 (1988). Nevertheless, contract principles are

significant because section 6501(c)(4) requires the agreement to be

in writing. Piarulle v. Commissioner , 80 T.C. 1035, 1042 (1983).

Consequently, we examine the objective manifestations of mutual

assent to determine the terms of the agreement. K ronish v.

Commissioner

, supra at 693; Pi arulle v. Commissioner

, s upra at

1042.

The restricted consent in this case limited the extension of

the limitations period to:

The Service's proposed adjustment relating to the

disallowance of Microsoft's use of the p r ofit split

method of computing taxable income for purpo ses of

section 936(h) of the Internal Revenue Code of 1986 with

respect to its transactions with Microsoft Pue rto Rico

and any transfer pricing adjustments resulting from such

disallowance; * * *

Because the 1991 notice of deficiency was issued on May 9,

1996, which was after the expiration of the final general consent

ex tending the limitations period to March 15, 1996, respondent's

alternative adjustment may be made only if it comes within the- 14 -

5 Petitioner also argues that the language "the

disallowance of Microsoft's use of the profit split method * * *

and any transfer pricing adjustments resulting from such

disallowance" must be read in the conjunctive. In this regard,

petitioner contends that respondent's proposed adjustment to the

combined taxable income does not relate to a transfer pricing

adjustment. Respondent objects to petitioner's interpretation of

the restricted consent. We do not base our ruling on

petitioner's reading of the restricted consent in this respect

(continued...) la nguage of the restricted consent which did not expire until

December 31, 1996.

Respondent contends that the restricted consent encompasses

the recalculation of the combined taxable income of petitioner's

affiliated group. Respondent reaches this conclusion by noting

that the restricted consent makes reference g enerally to section

936(h), which includes the election of the profit-split method and

the calculation of the combined taxable income. Further, after a

dictionary analysis, respondent argues that the word "use" in

"Microsoft's use of the profit split method" (emphasis added)

refers both to MS-Puerto Rico's "act" of electing the profit-split

method and the "manner" in which the method is employed (i.e., the

calculation of the combined taxable income).

Petitioner argues that resp ondent fails to acknowledge the

critical language in the restricted con sent, namely, the

" disallowance of Microsoft's use of the profit split method * * *

and any transfer pricing adjustments from such disa l lowance ".

(Emphasis added.) 5 Petitioner asserts that the word "disallowance"- 15 -

5 (...continued)

because we find other grounds for denying respondent's attempt to

recalculate the combined taxable income. limits the restricted consent to the failure to qualify for the

profit-split method election and that respondent's alternative

adjustment (seeking the recalcu l ation of the combined taxable

income) presumes the allo wance of the profit-split method in the

first place. We agree with petitioner.

The plain language of the restricted consent herein limits the

extension of the limitations period to the proposed disallowance of

t he profit-split method election. See F erguson v. Commissioner

,

T.C. Memo. 1992-451. Respondent seeks a dif ferent interpretation

because the restricted consent refers to the "use" of the profitsplit method rather than the "election" of the profit-split method.

While in some circumstances the word "use" might lead to the

meaning ascribed to it by respondent, we believe that in the

instant case the parties intended the word to mean "election". Our

reasons for this conclusion follow.

First, we consider the circumstances in which the restricted

consent was executed. Although respondent had issued six IDR's

seeking information on how petitioner and MS-Puerto Rico calculated

the combined taxable income, neither the NOPA (and the accompanying

McDonell report) nor the 30-day letter (and the accompanying RAR)

make any reference to the recalculation of the affiliated group's- 16 -

combined taxable income. Instead, the NOPA, McDonell report, 30-

day letter, and RAR refer only to MS-Puerto Rico's failure to

qualify for the profit-split method election because of the lack of

a significant business presence i n Puerto Rico. The NOPA and

accompanying McDonell report were issued approximately 4-1/2 months

before the execution of the restricted consent, and the 30-day

letter and accompanying RAR were issued on th e same date as the

execution of the restricted consent.

Second, respondent's interpretation of the restricted consent

is inconsistent with the operation of section 936(h). Cf. S outhern

v. Commissioner

, 87 T.C. 49 (1986). If petitioner failed to

qualify to elect the profit-split method because of MS-Puerto

Rico's lack of a significant business presence in Puerto Rico, then

MS-Puerto Rico's taxable income would be computed under the rules

provided in section 936(h)(1)-(4). The combined taxable income of

the affiliated group is calculated under section

936(h)(5)(C)(ii)(II) only if petit ioner q ualified to elect (and

elected) the profit-split method. There is no language in the

restricted consent that suggests that the profit-split method is to

be allowed, thus permitting adjustments to the affiliated group's

combined taxable income.

F inally, if the parties intended the consent to have the

meaning respondent attributes to it, there would have been no need

to preface the consent with the l anguage "The Service's proposed- 17 -

adjustment relating to the disallowance". See L oeser v.

Commi ssioner , 27 B.T.A. 601, 606 (1933). The restricted consent

could have merely read: "The amount of any deficiency assessment is

to be limited to that resulting from Microsoft's use of the profitspl it method." In our opinion, "the disallowance of Microsoft's

use of the profit split method" refers to Microsoft's qualification

to elect the profit-split method. Moreover, we believe reference

to "The Service's proposed adjustment" (emphasis added) is a strong

point in petitioner's favor restricting the consent to issues

previously raised in the NOPA and the 30-day letter.

To conclude, the restricte d consent was not broad enough to

encompass the alternative adjustment raised by respondent's amended

answer. Consequently, respondent's motion for partial summary

judgment will be denied, and petitioner's cross-motion for partial

summary judgment will be granted.

An appropriate order will be

issued

.