ALTERA CORPORATION & SUBSIDIARIES v. COMMISSIONER OF INTERNAL REVENUE
Nos. 16-70496, 16-70497
United States Court of Appeals for the Ninth Circuit
June 7, 2019
Tax Ct. Nos. 6253-12, 9963-12
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE
ALTERA CORPORATION & SUBSIDIARIES, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
Nos. 16-70496, 16-70497
Tax Ct. Nos. 6253-12, 9963-12
OPINION
Appeal from Decisions of the United States Tax Court
Argued and Submitted October 16, 2018 San Francisco, California
Filed June 7, 2019
Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber* and Kathleen M. O‘Malley,** Circuit Judges.
Opinion by Chief Judge Thomas; Dissent by Judge O‘Malley
ALTERA CORP. V. CIR
SUMMARY***
Tax
The panel reversed a decision of the Tax Court that
At issue was the validity of the Treasury regulations implementing
ALTERA CORP. V. CIR
The panel next held that the regulations at issue were not arbitrary and capricious under the Administrative Procedure Act.
Dissenting, Judge O‘Malley would find, as the Tax Court did, that
COUNSEL
Arthur T. Catterall (argued), Richard Farber, and Gilbert S. Rothenberg, Attorneys; Travis A. Greaves, Deputy Assistant Attorney General; Richard E. Zuckerman, Principal Deputy Assistant Attorney General; Tax Division, United States Department of Justice, Washington, D.C.; for Respondent-Appellant.
Donald M. Falk (argued), Mayer Brown LLP, Palo Alto, California; Thomas Kittle-Kamp and William G. McGarrity, Mayer Brown LLP, Chicago, Illinois; Brian D. Netter and Travis Crum, Mayer Brown LLP, Washington, D.C.; A. Duane Webber, Phillip J. Taylor, and Joseph B. Judkins, Baker & McKenzie LLP, Washington, D.C.; for Petitioner-Appellee.
Susan C. Morse, University of Texas School of Law, Austin, Texas; Stephen E. Shay and Allison Bray, Certified Law Students, Harvard Law School, Cambridge, Massachusetts; for Amici Curiae J. Richard Harvey, Reuven Avi-Yonah, Lily Batchelder, Joshua Blank, Noël Cunningham, Victor Fleischer, Ari Glogower, David Kamin, Mitchell Kane, Michael Knoll, Rebecca Kysar, Leandra Lederman, Zachary Liscow, Ruth Mason, Susan Morse, Daniel Shaviro, Stephen Shay, John Steines, David Super, Clinton Wallace, and Bret Wells.
Jonathan E. Taylor, Gupta Wessler PLLC, Washington, D.C.; Clint Wallace, Vanderbilt Hall, New York, New York; for Amici Curiae Anne Alstott, Reuven Avi-Yonah, Lily Batchelder, Joshua Blank, Noel Cunningham, Victor Fleischer, Ari Glogower, David Kamin, Mitchell Kane, Sally Katzen, Edward Kleinbard, Michael Knoll, Rebecca Kysar, Zachary Liscow, Daniel Shaviro, John Steines, David Super, Clint Wallace, and George Yin.
Larissa B. Neumann, Ronald B. Schrotenboer, and Kenneth B. Clark, Fenwick & West LLP, Mountain View, California, for Amicus Curiae Xilinx Inc.
Christopher J. Walker, The Ohio State University Moritz College of Law, Columbus, Ohio; Kate Comerford Todd, Steven P. Lehotsky, and Warren Postman, U.S. Chamber Litigation Center, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America.
John I. Forry, San Diego, California, for Amicus Curiae TechNet.
Alice E. Loughran, Michael C. Durst, and Charles G. Cole, Steptoe & Johnson LLP, Washington, D.C.; Bennett Evan Cooper, Steptoe & Johnson LLP, Phoenix, Arizona; for Amici Curiae Software and Information Industry Association, Financial Executives International, Information Technology Industry Council, Silicon Valley Tax Directors Group, Software Finance and Tax Executives Counsel, National Association of Manufacturers, American Chemistry Council, BSA | the Software Alliance, National Foreign Trade Council, Biotechnology Innovation Organization, Computing Technology Industry Association, The Tax Council, United States Council for International Business, Semiconductor Industry Association.
Kenneth P. Herzinger and Eric C. Wall, Orrick Herrington & Sutcliffe LLP, San Francisco, California; Peter J. Connors, Orrick Herrington & Sutcliffe LLP, New York, New York; for Amici Curiae Charles W. Calomiris, Kevin H. Hassett, and Sanjay Unni.
Roderick K. Donnelly and Neal A. Gordon, Morgan Lewis & Bockius LLP, Palo Alto, California; Thomas M. Peterson, Morgan Lewis & Bockius LLP, San Francisco,
Christopher Bowers, David Foster, Raj Madan, and Royce Tidwell, Skadden Arps Slate Meagher & Flom LLP, Washington, D.C.; Nathaniel Carden, Skadden Arps Slate Meagher & Flom LLP, Chicago, Illinois; for Amicus Curiae Amazon.com Inc.
ALTERA CORP. V. CIR
OPINION
THOMAS, Chief Judge:
This appeal presents the question of the validity of
Our task, of course, is not to assess the better tax policy, nor the wisdom of either approach, but rather to examine whether Treasury‘s regulations are permitted under the statute. Applying the familiar tools used to examine administrative agency regulations, we conclude that the regulations withstand scrutiny. Therefore, we reverse the judgment of the Tax Court.
I
For many years, Congress and the Treasury have been concerned with American businesses avoiding taxes through the creation and use of related business entities. In the last several decades, Congress has directed particular attention to the potential for tax abuse by multinational corporations with foreign subsidiaries. If, for example, the parent business entity is in a high-tax jurisdiction, and the foreign subsidiary is in a low-tax jurisdiction, the business enterprise can shift costs and revenue between the related entities so that more taxable income is allocated to the lower tax jurisdiction. Similarly, a parent and foreign subsidiary can enter into significant tax-avoiding cost sharing arrangements.
The concern about tax avoidance through the use of related business entities is not new. In the Revenue Act of 1928, Congress granted the Secretary of the Treasury the authority to reallocate the reported income and costs of related businesses “in order to prevent evasion of taxes or clearly to reflect the income of any such trades or businesses.” Revenue Act of 1928, ch. 852, § 45, 45 Stat. 791, 806. This statute was designed to give Treasury the flexibility it needed to prevent transaction-shuffling between related entities for the purpose of decreasing tax liability. See H.R. REP. NO. 70-2, at 16–17 (1927) (“[T]he Commissioner may, in the case of two or more trades or businesses owned or controlled by the same interests, apportion, allocate, or distribute the income or deductions between or among them, as may be necessary in order to prevent evasion (by the shifting of profits, the making of fictitious sales, and other methods frequently adopted for the purpose of ‘milking‘), and in order clearly to reflect their true tax liability.“); accord S. REP. NO. 70-960, at 24 (1928). The purpose of the statute was “to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer.” Comm‘r v. First Sec. Bank of Utah, 405 U.S. 394, 400 (1972) (quoting
In 1934, the Commissioner adopted regulations implementing the statute and first adopted the familiar “arm‘s length” standard: “The standard to be applied in every case is that of an uncontrolled taxpayer dealing at arm‘s length with another uncontrolled taxpayer.” Treas. Reg. 86, art. 45-1(b) (1935). In the context of a controlled transaction, the arm‘s length standard is satisfied “if the results of the transaction are consistent with the results that would have been realized if uncontrolled taxpayers had engaged in the same transaction under the same circumstances (arm‘s length result).”
Although the Secretary adopted the arm‘s length standard, courts did not hold related parties to that standard by exclusively requiring the examination of comparable transactions. For example, in Seminole Flavor Co. ν. Commissioner, the Tax Court rejected a strict application of the arm‘s length standard in favor of an inquiry into whether the allocation of income between related parties was “fair and reasonable.” 4 T.C. 1215, 1232 (1945); see also id. at 1233 (“Whether any such business agreement would have been entered into by petitioner with total strangers is wholly problematical.“); Grenada Indus., Inc. v. Comm‘r, 17 T.C. 231, 260 (1951) (“We approve
[W]e do not agree . . . that “arm‘s length bargaining” is the sole criterion for applying the statutory language of [
26 U.S.C. § 482 ] in determining what the “true net income” is of each “controlled taxpayer.” Many decisions have been reached under [§ 482 ] without reference to the phrase “arm‘s length bargaining” and without reference to Treasury Department Regulations and Rulings which state that the talismanic combination of words—“arm‘s length“—is the “standard to be applied in every case.”
Frank v. Int‘l Canadian Corp., 308 F.2d 520, 528–29 (9th Cir. 1962).
Frank noted that “it was not any less proper . . . to use here the ‘reasonable return’ standard than it was for other courts to use ‘full fair value,’ ‘fair price including a reasonable profit,’ ‘method which seems not unreasonable,’ ‘fair consideration which reflects arm‘s length dealing,’ ‘fair and reasonable,’ ‘fair and reasonable’ or ‘fair and fairly arrived at,’ or ‘judged as to fairness,’ all used in interpreting [the statute].” Id. (footnotes omitted). We later limited Frank to situations in which “it would have been difficult for the court to hypothesize an arm‘s-length transaction.” Oil Base, Inc. v. Comm‘r, 362 F.2d 212, 214 n.5 (9th Cir. 1966). However, Frank‘s central point remained: the arm‘s length standard based on comparable transactions was not the sole basis of reallocating costs and income under the statute.
In the 1960s, the problem of abusive transfer pricing practices created a new adherence to a stricter arm‘s length standard. In response to concerns about the undertaxation of multinational business entities, Congress considered reworking the Tax Code to resolve the difficulty posed by the application of the arm‘s length standard to related party transactions. H.R. REP. NO. 87-1447, at 28-30 (1962). However, it instead asked Treasury to “explore the possibility of developing and promulgating regulations . . . which would provide additional guidelines and formulas for the allocation of income and deductions” under
The 1968 regulations “constituted a radical and unprecedented approach to the problem they addressed—notwithstanding their being couched in terms of the ‘arm‘s length standard,’ and notwithstanding that that standard had been the nominal standard under the regulations for some 30 years.” Stanley I. Langbein, The Unitary Method and the Myth of Arm‘s Length, 30 TAX NOTES 625, 644 (1986). In addition to three arm‘s length pricing methods, the 1968 regulations included a “fourth method,” which was essentially open-ended: “Where none of the three methods of pricing . . . can reasonably be applied under the facts and circumstances as they exist in a particular case, some appropriate method of pricing other than those described . . . , or variations on such methods, can be used.”
Following the promulgation of the 1968 regulation, courts continued to employ a
a gradual realization by all parties concerned, but especially Congress and the IRS, that the [comparability method of meeting the arm‘s length standard], firmly established . . . as the sole standard under section 482, did not work in a large number of cases, and in other cases its misguided application produced inappropriate results. The result was a deliberate decision to retreat from the standard while still paying lip service to it.
Avi-Yonah, supra, at 112; see also James P. Fuller, Section 482: Revisited Again, 45 TAX L. REV. 421, 453 (1990) (“[T]he 1986 Act‘s commensurate with income standard is not really a new approach to § 482.“).
Ultimately, as controlled transactions increased in frequency and complexity, particularly with respect to intangible property, Congress determined that legislative action was necessary. The Tax Reform Act of 1986 reflected Congress‘s view that strict adherence to the comparability method of meeting the arm‘s length standard prevented tax parity. Thus, the Tax Reform Act of 1986 added a sentence to
In the case of any transfer (or license) of intangible property (within the meaning of section 936(h)(3)(B)), the income with respect to such transfer or license shall be commensurate with the income attributable to the intangible.
Tax Reform Act of 1986,
The House Ways and Means Committee recommended the addition of the commensurate with income clause because it was “concerned” that the current code and regulations “may not be operating to assure adequate allocations to the U.S. taxable entity of income attributable to intangibles.” H.R. REP. NO. 99-426, at 423 (1985). The clause was intended to correct a “recurrent problem“—“the absence of comparable arm‘s length transactions between unrelated parties, and the inconsistent results of attempting to impose an arm‘s length concept in the absence of comparables.” Id. at 423–24.
The House Report makes clear that the committee intended the commensurate with income standard to displace a comparability analysis where comparable transactions cannot be found:
A fundamental problem is the fact that the relationship between related parties is different from that of unrelated parties. . . . [M]ultinational companies operate as an economic unit, and not “as if” they were unrelated to their foreign subsidiaries. . . .
Certain judicial interpretations of section 482 suggest that pricing arrangements between unrelated parties for items of the same apparent general category as those involved in the related party transfer may in some circumstances be considered a “safe harbor” for related party pricing arrangements, even though there are significant differences in the volume and risks involved, or in other factors. While the committee is concerned that such decisions may unduly emphasize the concept of comparables
even in situations involving highly standardized commodities or services, it believes that such approach is sufficiently troublesome where transfers of intangibles are concerned that a statutory modification to the intercompany pricing rules regarding transfers of intangibles is necessary. . . . .
. . . There are extreme difficulties in determining whether the arm‘s length transfers between unrelated parties are comparable. The committee thus concludes that it is appropriate to require that the payment made on a transfer of intangibles to a related foreign corporation . . . be commensurate with the income attributable to the intangible. . . .
. . . [T]he committee intends to make it clear that industry norms or other unrelated party transactions do not provide a safe-harbor minimum payment for related party intangible transfers. Where taxpayers transfer intangibles with a high profit potential, the compensation for the intangibles should be greater than industry averages or norms.
Id. at 424-25 (footnote and citation omitted).3
Treasury‘s first response to the Tax Reform Act was the “White Paper,” an intensive study published in 1988. A Study of Intercompany Pricing Under Section 482 of the Code, I.R.S. Notice 88-123, 1988-2 C.B. 458 (“White Paper“). The White Paper confirmed that Treasury believed the commensurate with income standard to be consistent with the arm‘s length standard (and that Treasury understood Congress to share that understanding). Id. at 475. Treasury wrote that a comparability analysis must be performed where possible, id. at 474, but it also suggested a “clear and convincing evidence” standard for comparable transactions, indicating that a comparability analysis would rarely be possible. Id. at 478.
The White Paper signaled a shift in the interpretation of the arm‘s length standard as it had been defined following the 1968 regulations. Treasury advanced a new allocation method, the “basic arm‘s length return method,” White Paper at 488, that would apply only in the absence of comparable transactions and would essentially split profits between the related parties, id. at 490. Commentators understood that, by attempting to synthesize the arm‘s length standard and the commensurate with income provision, Treasury was moving away from a view that the arm‘s length standard always requires a comparability analysis. Marc M. Levey, Stanley C. Ruchelman, & William R. Seto, Transfer Pricing of Intangibles After the Section 482 White Paper, 71 J. TAX‘N 38, 38 (1989); Josh O. Ungerman, Comment, The White Paper: The Stealth Bomber of the Section 482 Arsenal, 42 Sw. L.J. 1107, 1128–29 (1989).
In 1994 and 1995, Treasury issued new regulations that defined the arm‘s length standard as result-oriented, meaning that the goal is parity in taxable income rather than parity in the method of allocation itself.
The regulations also set forth methods by which income could be allocated among related parties in a manner consistent with the arm‘s length standard.
The 1995 regulation provided that “[i]ntangible development costs” included “all of the costs incurred by [a controlled] participant related to the intangible development area.”
Neither the Tax Reform Act nor the implementing regulations specifically addressed allocation of employee stock compensation, which is the issue in this dispute. However, that omission was unsurprising given that the practice did not develop on a major scale until the 1990s. Zvi Bodie, Robert S. Kaplan, & Robert C. Merton, For the Last Time: Stock Options Are an Expense, HARV. BUS. REV., Mar. 2003, at 62, 67. Beginning in 1997, the Secretary interpreted the “all . . . costs” language to include stock-based compensation, meaning that controlled taxpayers had to share the costs (and associated deductions) of providing employee stock compensation. Xilinx, Inc. v. Comm‘r, 598 F.3d 1191, 1193–94 (9th Cir. 2010).
In 2003, Treasury issued the cost-sharing regulations that are challenged in this case. Treasury intended for the 2003 amendments to clarify, rather than to overhaul, the 1994 and 1995 regulations. The clarifications were twofold. First, the amendments directly classified employee stock compensation as a cost to be allocated between QCSA participants. Compensatory Stock Options Under Section 482 (Proposed), 67 Fed. Reg. at 48,998;
Specifically,
A qualified cost sharing arrangement produces results that are consistent with an arm‘s length result . . . if, and only if, each controlled participant‘s share of the costs (as determined under paragraph (d) of this section) of intangible development under the qualified cost sharing
arrangement equals its share of reasonably anticipated benefits attributable to such development . . . .
Section 1.482-7A(d)(2) provides that parties to a QCSA must allocate stock-based compensation between themselves:
[In a QCSA], a controlled participant‘s operating expenses include all costs attributable to compensation, including stock-based compensation. As used in this section, the term stock-based compensation means any compensation provided by a controlled participant to an employee or independent contractor in the form of equity instruments, options to acquire stock (stock options), or rights with respect to (or determined by reference to) equity instruments or stock options, including but not limited to property to which section 83 applies and stock options to which section 421 applies, regardless of whether ultimately settled in the form of cash, stock, or other property.
These regulations, and the procedure employed in adopting them, form the basis of the present controversy.
II
At issue is Altera Corporation (“Altera“) & Subsidiaries’ tax liability for the years 2004 through 2006. During the relevant period, Altera and its subsidiaries designed, manufactured, marketed, and sold programmable logic devices, which are electronic components that are used to build circuits.
In May of 1997, Altera entered into a cost-sharing agreement with one of its foreign subsidiaries, Altera International, Inc., a Cayman Islands corporation (“Altera International“), which had been incorporated earlier that year. Altera granted to Altera International a license to use and exploit Altera‘s preexisting intangible property everywhere in the world except the United States and Canada. In exchange, Altera International paid royalties to Altera. The parties agreed to pool their resources to share research and development (“R&D“) costs in proportion to the benefits anticipated from new technologies. The question in this appeal is whether Treasury was permitted, for tax liability purposes, to re-allocate the cost of employee stock-based compensation.
Altera and the IRS agreed to an Advance Pricing Agreement covering the 1997–2003 tax years. Pursuant to this agreement, Altera shared with Altera International stock-based compensation costs as part of the shared R&D costs. After the Treasury regulations were amended in 2003, Altera and Altera International amended their cost-sharing agreement to comply with the modified regulations, continuing to share employee stock compensation costs.
The agreement was amended again in 2005 following the Tax Court‘s opinion in Xilinx Inc. & Consolidated Subsidiaries v. Commissioner, which involved a challenge to the 1994–1995 cost-sharing regulations. 125 T.C. 37 (2005). The parties agreed to “suspend the payment of any portion of [a] Cost Share . . . to the extent such payment relates to the Inclusion of Stock-Based Compensation in R&D Costs” unless and until a court upheld the validity of the 2003 cost-sharing regulations. The following provision explains Altera‘s reasoning:
the determination of costs to be shared by controlled participants in a qualified cost sharing arrangement should also apply toThe Parties believe that it is more likely than not that (i) the Tax Court‘s conclusion in Xilinx v. Commissioner, 125 T.C. [No.] 4 (2005), that the arm‘s length standard controls
| 2004 | $ 24,549,315 |
| 2005 | $ 23,015,453 |
| 2006 | $ 17,365,388 |
| 2007 | $ 15,463,565 |
Altera timely filed petitions in the Tax Court. The parties filed cross-motions for summary judgment, and the Tax Court granted Altera s motion. Sitting en banc, the Tax Court held that
The Tax Court unanimously determined: (1) that the Commissioner s allocation of income and expenses between related entities must be consistent with the arm s length standard; and (2) that the arm s length standard is not met unless the Commissioner s allocation can be compared to an actual transaction between unrelated entities. The Tax Court reasoned that the Commissioner could not require related parties to share stock compensation costs, because the Commissioner had not considered any unrelated party transactions in which the parties shared such costs. The Tax Court held that the agency s decisionmaking process was fundamentally flawed because: (1) it rested on speculation rather than on hard data and expert opinions; and (2) it failed to respond to significant public comments, particularly those pointing out uncontrolled cost-sharing arrangements in which the entities did not share stock compensation costs. Id. at 133-34.
The Tax Court s decision rested largely on its own opinion in Xilinx, in which it determined that the arm s length standard mandates a comparability analysis. Id. at 118 (citing Xilinx, 125 T.C. at 53-55). In its decision in this case, as well, the Tax Court suggested that the Commissioner cannot require related entities to share stock compensation costs unless and until the Commissioner locates uncontrolled transactions in which these costs are shared. Id. at 118-19.
The Tax Court reached five holdings: (1) the 2003 amendments constitute a final legislative rule subject to the requirements of the APA; (2) Motor Vehicle Manufacturers Ass n of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), provides the appropriate standard of review because the standard set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), incorporates State Farm s “reasoned decisionmaking” standard; (3) Treasury did not support adequately its decision to allocate the costs of employee stock compensation between related parties; (4) Treasury s procedural regulatory deficiencies were not harmless;4 and (5)
III
Our task in this appeal, then, is to determine whether Treasury s 2003 regulations
Id. Altera challenges both the procedural adequacy of the APA process and the substance of the regulation.6
A
We first turn to Chevron analysis.
1
Under Chevron, we first apply the traditional rules of statutory construction to determine whether “Congress has directly spoken to the precise question at issue.” 467 U.S. at 842. We start with the plain statutory text and, “when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme. ” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).
In addition, we examine the legislative history, the statutory structure, and “other traditional aids of statutory interpretation” in order to ascertain congressional intent. Middlesex Cty. Sewerage Auth. v. Nat l Sea Clammers Ass n, 453 U.S. 1, 13 (1981). If, after conducting that Chevron step one examination, we conclude that the statute is silent or ambiguous on the issue, we then defer to the agency s interpretation so long as it “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. A permissible construction is one that is not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844.
Ultimately, questions of deference boil down to whether “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). “When Congress has explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation, and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” Id. at 227 (quoting Chevron, 467 U.S. at 843-44).
Here, the resolution of our step one Chevron examination is straightforward.
Altera argues that the statute, by its terms, cannot apply to stock-based compensation. According to Altera, stock-based compensation is not “transferred” between parties because only preexisting intangibles can be transferred. Thus, for Altera, Treasury has exceeded the delegation of authority apparent from the plain text of the statute.
We are not persuaded. When parties enter into a QCSA, they are transferring future distribution rights to intangibles, albeit intangibles that have yet to be developed. Indeed, the present-day transfer of those rights provides the main incentive for entering into a QCSA. The right to distribute intangibles to be developed later is, itself, one right in the bundle of property rights that exists at the time that parties enter into a QCSA.
Moreover, even assuming that the crucial transfer does not occur contemporaneously,
In short, the text of the statute does not limit its application to preexisting intangibles in the way Altera s argument suggests. Because parties to a QCSA transfer cost-shared intangibles including stock-based compensation they are subject to regulation under
2
Thus, we must move on to Chevron step two to consider whether Treasury s interpretation of
So was Treasury s determination that uncontrolled cost-sharing arrangements do not provide helpful guidance regarding allocations of employee stock compensation. When it amended
What is more, although Altera suggests there can be only one understanding of the methodology required by the arm s length standard, historically the definition of the arm s length standard has been a more fluid one. Indeed, as we have discussed, for most of the twentieth century the arm s length standard explicitly permitted the use of flexible methodology in order to achieve an arm s length result. See also H.R. REP. NO. 87-2508, at 18-19 (1962) (Conf. Rep.) (noting that, in 1962, Congress stated that Treasury should “provide additional guidelines and formulas” to achieve arm s length results). It is true that, more recently, an understanding that the primary means of reaching an arm s length result suggested the analysis of comparable transactions. But, in the lead-up to the 1986 amendments, Congress voiced numerous concerns regarding reliance on this methodology. Further, as we have discussed, courts for more than half a century have held that a comparable transaction analysis was not the exclusive methodology to be employed under the statute. In light of the historic versatility of methodology, it is reasonable that Treasury would understand that Congress intended for it to depart from analysis of comparable transactions as the exclusive means of achieving an arm s length result.
In addition, Treasury reasonably concluded that doing away with analysis of comparable transactions was an efficient means of ensuring that
In sum, Treasury reasonably understood
3
Altera contends that the Commissioner misreads
Altera s interpretation of the 1986 amendment would render the commensurate with income clause meaningless except in two circumstances: (1) to allow the Commissioner periodically to adjust prices initially assigned following a comparability analysis; and (2) to reflect a party s contribution of existing intangible property or “buy-in” to a cost-sharing arrangement. This narrow reading of
The Commissioner s allocation of employee stock compensation costs between related parties is necessary for Treasury to fulfill its obligation under
4
Altera makes much of the United States s treaty obligations with other countries, asserting that a purely internal standard is inconsistent with the standards agreed to therein and is therefore unreasonable. However, there is no evidence that our treaty obligations bind us to the analysis of comparable transactions. As demonstrated by nearly a century of interpreting
B
Though Treasury s interpretation of its statutory grant of authority was reasonable, we also must examine whether the procedures used in its promulgation prove defective under the APA. Catskill Mountains, 846 F.3d at 522 (“[I]f an interpretive rule was promulgated in a procedurally defective manner, it will be set aside regardless of whether its interpretation of the statute is reasonable.“). After reviewing the administrative record, we conclude that Treasury complied with the procedural
The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It “prescribes a three-step procedure for so-called notice-and-comment rulemaking. ” Perez v. Mortg. Bankers Ass n, 135 S. Ct. 1199, 1203 (2015) (citing
Altera does not dispute that Treasury satisfied the first step by giving notice of the 2003 regulations. Id. Nor does there appear to be a controversy as to whether Treasury included in the final rule “a concise general statement of [its] basis and purpose.” Id.;
1
Under State Farm, the touchstone of “arbitrary and capricious” review under the APA is “reasoned decisionmaking.” State Farm, 463 U.S. at 52. “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. ” Id. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “[A]gency action is lawful only if it rests on a consideration of the relevant factors. ” Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (quoting State Farm, 463 U.S. at 43). However, we may not set aside agency action simply because the rulemaking process could have been improved; rather, we must determine whether the agency s “path may reasonably be discerned.” State Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
In considering and responding to comments, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. ” Id. (quoting Burlington Truck Lines, 371 U.S. at 168). “[A]n agency need only respond to significant comments, i.e., those which raise relevant points and which, if adopted, would require a change in the agency s proposed rule.” Am. Mining Congress v. EPA, 965 F.2d 759, 771 (9th Cir. 1992) (quoting Home Box Office v. FCC, 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977) (per curiam)). If the comments ignored by the agency would not bear on the agency s “consideration of the relevant factors,” we may not reverse the agency s decision. Id.
Treasury published its notice of proposed rulemaking in 2002. Compensatory Stock Options Under Section 482 (Proposed), 67 Fed. Reg. 48,997-01. In its notice, Treasury made clear that it was relying on the commensurate with income provision. Id. at 48,998. To support its position, Treasury drew from the legislative history of the 1986 amendment, explaining that Congress intended a party to a QCSA to “bear its portion of all research and development costs.” Id. (quoting H.R. REP. NO. 99-841, at II-638 (Conf. Rep.). It also informed interested parties of its intent to coordinate the new regulations with the arm s length standard, suggesting that it was attempting to synthesize the potentially disparate standards found within
Commenters responded by attacking the proposed regulations as inconsistent with the traditional arm s length standard because the methodology did not involve analysis of comparable transactions. To support their position, they primarily discussed arm s length agreements in which unrelated parties did not mention employee stock options. They explained that unrelated parties do not share stock compensation costs because it is difficult to value stock-based compensation, and there can be a great deal of expense and risk involved.
In the preamble to the final rule, Treasury dismissed the comments (and, relatedly, the behavior of controlled taxpayers):
Treasury and the IRS continue to believe that requiring stock-based compensation to be taken into account for purposes of QCSAs is consistent with the legislative intent underlying section 482 and with the arm s length standard (and therefore with the obligations of the United States under its income tax treaties . . .). The legislative history of the Tax Reform Act of 1986 expressed Congress s intent to respect cost sharing arrangements as consistent with the commensurate with income standard, and therefore consistent with the arm s length standard, if and to the extent that the participants shares of income “reasonably reflect the actual economic activity undertaken by each.” See H.R. CONF. REP. NO. 99-481, at II-638 (1986). . . . [I]n order for a QCSA to reach an arm s length result consistent with legislative intent, the QCSA must reflect all relevant costs, including such critical elements of cost as the cost of compensating employees for providing services related to the development of the intangibles pursuant to the QCSA. Treasury and the IRS do not believe that there is any basis for distinguishing between stock-based compensation and other forms of compensation in this context.
Treasury and the IRS do not agree with the comments that assert that taking stock-based compensation into account in the QCSA context would be inconsistent with the arm s length standard in the absence of evidence that parties at arm s length take stock-based compensation into account in similar circumstances. . . . The uncontrolled transactions cited by commentators do not share enough characteristics of QCSAs involving the development of high-profit
intangibles to establish that parties at arm s length would not take stock options into account in the context of an arrangement similar to a QCSA.
Compensatory Stock Options under Section 482 (Preamble to Final Rule), 68 Fed. Reg. 51,171-02, 51,172-73 (Aug. 26, 2003).
Treasury added:
Treasury and the IRS believe that if a significant element of [the costs shared by unrelated parties] consists of stock-based compensation, the party committing employees to the arrangement generally would not agree to do so on terms that ignore the stock-based compensation.
Id. at 51,173.
By submitting the cited transactions between unrelated parties, the commentators apparently assumed that Treasury would employ analysis of comparable transactions. This assumption, however, overlooks Treasury s decision to do away with analysis of comparable transactions in the first place a decision that was made clear enough by citations to legislative history in the notice of proposed rulemaking and in the preamble to the final rule. As discussed in our Chevron analysis, Treasury s conclusion that it could require parties to a QCSA to share all costs was a reasonable one. Thus, “significant” comments that required a response would have spoken to why this interpretation was not, in fact, reasonable, so that adopting the comments would require Treasury to change the regulation. Am. Mining Congress, 965 F.2d at 771. As an example, Treasury would have been required to respond to comments demonstrating that doing away with analysis of comparables did not, in fact, serve the purposes of parity set out in the statute.
Indeed, the cited transactions actually reinforced the original justification for adopting a purely internal methodology the lack of transactions comparable to those occurring between parties to a QCSA. Specifically, as Treasury remarked, the submitted transactions did not “share enough characteristics of QCSAs involving the development of high-profit intangibles” to provide grounds for accurate comparison. Because of this lack of similar transactions, Treasury justifiably chose to employ methodology that did not depend on non-existent comparables to satisfy the commensurate with income test and achieve tax parity. In this way, the comments reinforced Treasury s premise for adopting the purely internal methodology, but were irrelevant to the underlying choice of methodology. Treasury did not err in refusing to examine them more rigorously.
In sum, we cannot find a failure in Treasury s refusal to consider comments that proved irrelevant to its decisionmaking process. Here, Treasury gave sufficient notice of what it intended to do and why, and the submitted comments were irrelevant to the issues Treasury was considering. Because the comments had no bearing on “relevant factors” to the rulemaking, nor any bearing on the final rule, there was no APA violation. Am. Mining Congress, 965 F.2d at 771.
2
Treasury s current litigation position is not inconsistent with the statements it made to support the 2003 regulations at the time of the rulemaking. Altera argues that its position is justified by SEC v. Chenery Corp., 332 U.S. 194 (1947). “[A] reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency.” Id. at 196. “If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Id.
Treasury reasonably interpreted congressional intent in the 1986 amendments as permitting it to dispense with a
comparable transaction analysis in the absence of actual comparable transactions. Its interpretation was all the more reasonable given, as we have discussed, that the arm‘s length standard has historically been understood as more fluid than Altera suggests. Because Chenery does not require agencies to provide “exhaustive, contemporaneous legal arguments to preemptively defend its action,” its references to the 1986 amendments provide an adequate ground for its determination. Nat‘l Elec. Mfrs. Ass‘n v. U.S. Dep‘t of Energy, 654 F.3d 496, 515 (4th Cir. 2011).
Altera contends further that the Commissioner‘s position is incompatible with Treasury‘s statements during the rulemaking process, when the Secretary claimed that the cost-sharing regulations were consistent with the arm‘s length standard (as well as the commensurate with income standard). This argument misinterprets Treasury‘s position. Treasury asserted then, and still asserts in this litigation, that using an internal method of reallocation is consistent with the arm‘s length standard because it attempts to bring parity to the tax treatment of controlled and uncontrolled taxpayers, as does comparison of comparable transactions when they exist. Treasury‘s position was also consistent with its White Paper,9 and Treasury‘s interpretation in the 1994 regulation of the arm‘s length standard as result-oriented, rather than method-oriented, with the goal of achieving tax parity.
Altera‘s argument is founded on its belief that an arm‘s length analysis always must be method-oriented, and rooted in actual transactional analysis. But the question before us is not which view is superior; it is whether Treasury‘s position in 2003 was incompatible with its prior position in promulgating the 1994 and 1995 regulations. As we have discussed, it was clear in 1994 and 1995 that, in implementing the commensurate with income amendment, Treasury was moving away from a purely method-based, comparable-transaction view of the arm‘s length standard in attempting to achieve tax parity. Treasury‘s citation to the amendment, and its legislative history, demonstrates that its position was not inconsistent, and there is no basis under Chenery to invalidate it.
3
Altera also argues that Treasury did not adequately support its position that
Treasury‘s rulemaking process was sufficient. Treasury articulated why treating stock-based compensation as a cost led to arm‘s length results. It first noted that stock-based compensation is a “critical element” of R&D costs for parties to a QCSA and noted that such compensation is “clearly related to the intangible development area.” Compensatory Stock Options Under Section 482 (Preamble to Final Rule), 68 Fed. Reg. at 51,173. Logic supports these conclusions. Parties dealing at arm‘s length, as Treasury explained, would not “ignore” stock-based compensation if such compensation were a “significant element” of the compensation costs one party incurs and another party agrees to reimburse when developing high-profit intangibles. Id. Rather, “through bargaining,” each party would ensure that the cost-sharing agreement is in its best interest, meaning that the parties will consider the internal costs of stock compensation without requiring the other party to recognize those costs. Id.
Though commentators presented evidence of some transactions in which stock-based compensation was not a cost, this evidence provided little guidance because it did not concern parties to a QCSA developing high-profit intangibles. This out-of-context data did not require a different decision. In the absence of applicable evidence, Treasury‘s analysis provides a logical explanation of how treating stock-based compensation as a cost leads to arm‘s length results.
In addition, as we have noted, generally accepted accounting principles supported Treasury‘s conclusion, and Treasury cited generally to “tax and other accounting principles” for its determination that there is a “cost associated with stock-based compensation.” Compensatory Stock Options Under Section 482 (Proposed), 67 Fed. Reg. at 48,999. One such principle is that a distinction exists between the economic costs of stock compensation—which are debatable—versus the accounting costs—which are not. Because entities account for the cost of providing employee stock options, it is reasonable for Treasury to allocate that cost. In light of these fundamental understandings, Treasury‘s reference to “tax and other accounting principles” provides a solid foundation for the Commissioner‘s interpretation.10
Most notably, the Tax Code classifies stock-based compensation as a trade or business “expense.”
Though it could have been more specific, Treasury “articulated a rational connection” between its decision and these industry standards. County of Amador v. U.S. Dep‘t of Interior, 872 F.3d 1012, 1027 (9th Cir. 2017) (internal quotation marks omitted), cert. denied, 139 S. Ct. 64 (2018). Presuming that Treasury was authorized to dispense with a comparability analysis, making the economic behavior of uncontrolled taxpayers irrelevant, Altera does not offer any compelling argument against the reasonableness of Treasury‘s determination.
4
Finally, in addition to its general State Farm argument, Altera asks for a more searching review under Fox. Altera claims that the cost-sharing amendments present a major shift in administrative policy such that Treasury could not issue the regulations without carefully considering and broadcasting its decision. Altera argues that “[t]he assertion that the commensurate with income clause supplants the arm‘s-length standard with a ‘purely internal’ analysis is a sharp—but unacknowledged—reversal from Treasury‘s long-standing prior policy.”
“Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). Indeed, “[w]hen an agency changes its existing position, it ‘need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.‘” Id. at 2125-26 (quoting Fox, 556 U.S. at 515). However, an agency may not “depart from a prior policy sub silentio or simply disregard rules that are still on the books.” Fox, 556 U.S. at 515.
[A] policy change complies with the APA if the agency
- (1) displays “awareness that it is changing position,”
- (2) shows that “the new policy is permissible under the statute,”
- (3) “believes” the new policy is better, and
- (4) provides “good reasons” for the new policy, which, if the “new policy rests upon factual findings that contradict those which underlay its prior policy,” must include “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.”
Organized Vill. of Kake v. U.S. Dep‘t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (en banc) (format altered) (quoting Fox, 556 U.S. at 515-16).
At its core, this argument is not meaningfully different from Altera‘s general APA argument. If the arm‘s length standard allows the Commissioner to allocate costs between related parties without a comparability analysis, there is no policy change, merely a clarification of the same policy. Further, as we have discussed, the policy change was occasioned by the congressional addition of the “commensurate with income” sentence in the Tax Reform Act of 1984 and the 1994 and 1995 implementing regulations. Those changes occurred well before 2003. The 2003 regulations
5
Thus, the 2003 regulations are not arbitrary and capricious under the standard of review imposed by the APA. Treasury‘s regulatory path may be reasonably discerned. Treasury understood
C
Altera also argues that the outcome of this case is controlled by our court‘s decision in Xilinx. We disagree. Although the Xilinx panel could have reached a holding that would foreclose the Commissioner‘s current position, it did not.
In Xilinx, we considered the 1994 and 1995 cost-sharing regulations. The case involved a matter of regulatory interpretation, not executive authority. Xilinx, Inc., another maker of programmable logic devices, challenged the Commissioner‘s allocation of employee stock options between Xilinx and its Irish subsidiary. 598 F.3d at 1192. As framed by the panel, the issue was whether
Xilinx does not govern here. First, the parties in Xilinx were not debating administrative authority, and we did not consider the “commensurate with income” standard, which Congress itself did not see as inconsistent with the arm‘s length standard. Second, and more significantly, the Xilinx panel was faced with a conflict between two rules. If the rules were conceptually distinguishable, they were also in direct conflict. The arm‘s length rule,
Xilinx did not involve the question of statutory interpretation, the Commissioner‘s authority, or the regulation at issue in this appeal:
IV
The 1986 amendment focused specifically on intangibles, and it gave Treasury the ability to respond to rapid changes in the high tech industry. “The broad language of [
In sum, we disagree with the Tax Court that the 2003 regulations are arbitrary and capricious under the standard of review imposed by the APA. While the rulemaking process was less than ideal, the APA does not require perfection. We are able to reasonably discern Treasury‘s path—Treasury understood
In light of the statute‘s plain text and the legislative history, Treasury also reasonably concluded that Congress intended to hone the definition of the arm‘s length standard so that it could work to achieve an arm‘s length result, instead of forcing application of a particular comparability method. Given the long history of the application of other methods, and the text and legislative history of the Tax Reform Act of 1984, Treasury‘s understanding of its power to use methodologies other than a pure transactional comparability analysis was reasonable, and we defer to its interpretation under Chevron. The Commissioner did not exceed the authority delegated to him by Congress in issuing the regulations.
REVERSED.
O‘MALLEY, Circuit Judge, dissenting:
“[T]he foundational principle of administrative law [is] that a court may uphold agency action only on the grounds that the agency invoked when it took the action.” Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015) (citing SEC v. Chenery Corp. (”Chenery I“), 318 U.S. 80, 87 (1943)). Prior to promulgating
Today, the majority justifies Treasury‘s about-face in three steps: (1) it finds that, by citing to the legislative history surrounding the enactment of the Tax Reform Act of 1986 in the preamble to
The majority, thus, “suppl[ies] a reasoned basis for the agency‘s action that the
I would instead find, as the Tax Court did, that Treasury‘s explanation of its rule (to the extent any was provided) failed to satisfy the State Farm standard, that Treasury did not provide adequate notice of its intent to change its longstanding practice of employing the arm‘s length standard and using a comparability analysis to get there, and that its new rule is invalid as arbitrary and capricious. I would also hold that this court‘s previous decision in Xilinx, Inc. v. Commissioner of Internal Revenue (”Xilinx II“), 598 F.3d 1191 (9th Cir. 2010), controls and mandates an order affirming the Tax Court‘s decision. I therefore would affirm the judgment of the Tax Court that expenses related to stock-based compensation are not among the costs to be shared in qualified cost sharing arrangements (“QCSAs“) under
I. BACKGROUND
A. The Arm‘s Length Standard
1. Before 1986
“The purpose of section 482 is to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer, by determining according to the standard of an uncontrolled taxpayer, the true taxable income from the property and business of a controlled taxpayer.” Comm‘r v. First Sec. Bank of Utah, 405 U.S. 394, 400 (1972) (quoting
Since the 1930s, Treasury regulations consistently have explained that, “[i]n determining the true taxable income of a controlled taxpayer, the standard to be
The majority attempts to water down the text of Treasury‘s own regulations at the time. It contends that, “[a]lthough the Secretary adopted the arm‘s length standard, courts did not hold related parties to the standard by exclusively requiring the examination of comparable transactions.” Op. 9. To support its position, the majority cites this court‘s decision in Frank v. Int‘l Canadian Corp., 308 F.2d 520, 528-29 (9th Cir. 1962), which disagreed that “‘arm‘s length bargaining’ is the sole criterion for applying the statutory language of [
There really can be no doubt that, prior to the 1986 amendment, this Circuit believed that an arm‘s length standard based on comparable transactions was the sole basis for allocating costs and income under the statute in all but the narrow circumstances outlined in Frank—including the presence of the stipulation therein. The majority‘s attempt to breathe life back into Frank is, simply, unpersuasive.
2. The 1986 Amendment
The 1986 amendment passed against the backdrop of Treasury‘s own longstanding practices did not change the obligation to employ an arm‘s length standard. Indeed, Congress left the first sentence of
This is consistent with the underlying purpose of the 1986 amendment. Congress explained in the committee report that it was introducing the commensurate with income standard to address a “recurrent problem” with transfers of highly valuable intangible property: “the absence of comparable arm‘s length transactions between unrelated parties, and the inconsistent results of attempting to impose an arm‘s length concept in the absence of comparables.” H.R. REP. NO. 99-426, at 423-24 (1985). Congress noted that “[i]ndustry norms for transfers to unrelated parties of less profitable intangibles frequently are not realistic comparables in these cases,” and that “[t]here are extreme difficulties in determining whether the arm‘s length transfers between unrelated parties are comparable.” Id. at 424-25. To address this specific gap, Congress found it “appropriate to require that the payment made on a transfer of intangibles to a related foreign corporation . . . be commensurate with the income attributable to the intangible.” Id. at 425. Congress did not make any other findings regarding the use of the commensurate with income standard for any transactions other than transfers or licenses of intangible property. Thus, the statute—read in light of this legislative history—did not grant Treasury the flexibility to depart from a comparability analysis whenever it sees fit; rather, it permitted a departure in the limited context of “any transfer (or license) of intangible property” because it had found that comparable transactions in such cases are frequently unrealistic.
Treasury reiterated the limited circumstances in which the commensurate with income standard applies in its 1988 “White Paper.” It stated there that, even in the context of transfers or licenses of intangible property, the “intangible income must be allocated on the basis of comparable transactions if comparables exist.” A Study of Intercompany Pricing under Section 482 of the Code (“White Paper“), I.R.S. Notice 88-123, 1988-1 C.B. 458, 474; see also id. at 473 (noting that, where “there is a true comparable for” the licensing of a “high profit potential intangible,” the royalty rate for the license “must be set on the basis of the comparable because that remains the best measure of how third parties would allocate intangible income“). Only “in situations in which comparables do not exist” for transfers of intangible property would the commensurate with income standard apply. Id. at 474. Indeed, the United States continued to insist in tax treaties, and in documents that Treasury issued to explain these treaties, that
In the early 1990s, related companies began to compensate certain employees who performed research and development activities pursuant to QCSAs by granting stock options and other stock-based compensation. See id. at 1192-93. This manner of compensation allowed companies to avoid the income reallocation mechanisms available under
To address this loophole, Treasury promulgated new regulations governing the tax treatment of controlled transactions in 1994 and 1995. These regulations affirmed that “the standard to be applied in every case” was the arm‘s length standard and that “an arm‘s length result generally will be determined by reference to the results of comparable transactions” because “identical transactions can rarely be located.”
When Xilinx, Inc. (“Xilinx“) challenged the IRS‘s interpretation, the Tax Court decided that the agency‘s interpretation was inconsistent with
C. The Regulations at Issue
While Xilinx II was pending before this court, Treasury promulgated the regulations at issue here. Compensatory Stock
Altera Corp. (“Altera U.S.“), a Delaware corporation, and its subsidiary Altera International, a Cayman Islands corporation, (collectively “Altera“) entered into a technology research and development cost-sharing agreement under which the related participants “agreed to pool their respective resources to conduct research and development using the pre-cost-sharing intangible property” and “to share the risks and costs of research and development activities they performed on or after May 23, 1997.” Altera, 145 T.C. at 93. This agreement was effective from May 23, 1997 through 2007. Id. During the 2004-2007 taxable years, Altera U.S. granted stock options and other stock-based compensation to certain employees who performed research and development activities pursuant to the agreement. Id. The employees’ cash compensation was included in the cost pool under the agreement, but their stock-based compensation was not. Id.
Altera timely filed an income tax return for its 2004-2007 taxable years. Id. at 94. Treasury responded by mailing notices of deficiency for those years, allocating income from Altera International to Altera U.S. by increasing Altera International‘s cost-sharing payments. Id. Treasury claimed its cost-sharing adjustments were for the purpose of bringing Altera in compliance with
II. Discussion
The Tax Court considered and rejected Treasury‘s plainly stated explanation for its regulation—that Treasury applied
the commensurate with income test because it could find no transactions comparable to the QCSAs at issue and that Treasury’s analysis was actually consistent with the arm’s length standard. The Commissioner now argues on appeal, however—and the majority accepts its new claim—that what Treasury was actually saying is thatA. The New Rule is Procedurally Invalid
Under the Administrative Procedure Act, we must “hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
I start, therefore, with what Treasury said when it promulgated the regulation at issue. In Treasury’s notice of proposed rulemaking, the agency explained the origins of the commensurate with income standard and discussed the White Paper. Compensatory Stock Options Under Section 482, 67 Fed. Reg. 48,997, 48,998 (proposed July 29, 2002) (to be codified at 26 C.F.R. pt. 1). Treasury noted, in particular, the White Paper’s observation “that Congress intended that Treasury and the IRS apply and interpret the commensurate with income standard consistently with the arm’s length standard.”
Treasury then detailed how the proposed rules would function, including that the new rules required stock-based compensation costs to be included among the costs shared in a QCSA to produce “results consistent with an arm’s length result.”
Treasury expanded on its reasoning in the preamble to the final rule. It explained that the tax treatment of stock-based compensation in QCSAs would have to be consistent “with the arm’s length standard (and therefore with the obligations of the United States under its income tax treaties and with the OECD transfer pricing guidelines).” 68 Fed. Reg. at 51,172. Treasury observed, however, that the legislative history of the 1986 amendment to
Throughout the preamble, Treasury repeatedly emphasized that it was continuing to apply the arm’s length standard. Treasury explained, for example, that “[t]he regulations relating to QCSAs have as their focus reaching results consistent with what parties at arm’s length generally would do if they entered into cost sharing arrangements for the development of high-profit intangibles.”
Yet, Treasury failed to consider comparable transactions submitted by commentators demonstrating that unrelated companies would never share the cost of stock-based compensation. Treasury responded to these comments invoking the arm’s length standard. See
While the results actually realized in similar transactions under similar circumstances ordinarily provide significant evidence in determining whether a controlled transaction meets the arm’s length standard, in the case of QCSAs such data may not be available. As recognized in the legislative history of the Tax Reform Act of 1986, there is little, if any, public data regarding transactions involving high-profit intangibles. The uncontrolled transactions cited by commentators do not share enough characteristics of QCSAs involving the development of high-profit intangibles to establish that parties at arm’s length would not take stock options into account in the context of an arrangement similar to a QCSA.
The Tax Court held that Treasury’s explanation for its regulation was insufficient under State Farm. Altera, 145 T.C. at 120–33. It found that Treasury “failed to provide a reasoned basis” for its “belief that unrelated parties entering into QCSAs would generally share stock-based compensation costs.” Id. at 123. The court acknowledged that agencies need not gather empirical evidence for some policy-based propositions, but it held that “the belief that unrelated parties would share
The Tax Court then detailed why Treasury’s explanation for the regulations was insufficient. The court noted that only some QCSAs involved high-profit intangibles or included stock-based compensation as a significant element of compensation, yet Treasury failed to distinguish between QCSAs with and without those characteristics. Id. at 125–27. And the court found that Treasury responded only in conclusory fashion to a number of comments identifying comparable transactions or explaining why unrelated parties would not share stock-based compensation costs in QCSAs. Id. at 127–30. On these grounds, the Tax Court struck down the regulation. Id. at 133–34.
On appeal, the Commissioner does not meaningfully dispute the Tax Court’s determination that Treasury’s analysis under the arm’s length standard was inadequate and unsupported. In its opening brief, it contends, instead, “that, in the context of a QCSA, the arm’s-length standard does not require an analysis of what unrelated entities do under comparable circumstances.” Appellant’s Br. 57 (internal quotation marks omitted). In the Commissioner’s view, Treasury’s detailed explanations regarding its comparability analysis were merely “extraneous observations”—“since Treasury reasonably determined that it was statutorily authorized to dispense with comparability analysis in this narrow context, there was no need for it to establish that the uncontrolled transactions cited by commentators were insufficiently comparable.” Appellant’s Br. 64.
In its supplemental brief, the Commissioner reiterates that—despite its own earlier machinations to the contrary—one should not conflate comparability analysis with the arm’s length standard. Appellant’s Suppl. Br. 29–31. It also argues for the first time that Treasury’s passing reference to the legislative history of
The majority accepts the latest of the Commissioner’s ever-evolving post-hoc rationalizations and then, amazingly, goes even further to justify what Treasury did here. First, it accepts the Commissioner’s new explanation that the taxpayer’s agreement to “divide beneficial ownership of any Developed Technology” constitutes a transfer of intangibles. E.R. 145. Second, it holds that Treasury’s reference to the legislative history communicated its understanding that, when Congress enacted the 1986 amendment, it “delegate[d] to Treasury the choice of a specific methodology to” “ensure that income follows economic activity.” Op. 27. The majority finds that Treasury implicitly communicated its understanding that Congress called upon it to move away from a comparability analysis and “to develop methods that [d]o not rely on analysis of” what it deems “problematic comparable transactions” when it sees fit. Op. 28–29. The majority finds that Treasury was therefore entitled to ignore the comparable transactions submitted by commentators because they purportedly did not “bear[] on ‘relevant factors’ to the rulemaking.” Op. 39–40
I do not share the majority’s views. Treasury may well have thought—incorrectly, I believe—that QCSAs involving the development of high-profit intangibles constitute transfers of intellectual property under the second sentence of
The APA’s safeguards ensure that those regulated do not have to guess at the regulator’s reasoning; just as importantly, they afford regulated parties a meaningful opportunity to respond to that reasoning. Treasury’s notice of proposed rulemaking ran afoul of these safeguards by failing to put the relevant public on notice of its intention to depart from a traditional arm’s length analysis.2 See CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1080 (D.C. Cir. 2009) (holding that a final rule “violates the APA’s notice requirement where ‘interested parties would have had to divine [the agency’s] unspoken thoughts’” (alteration in original) (quoting Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250, 1259–60 (D.C. Cir. 2005))). Asking Treasury to show its work in the preamble to its final rule—that is, to set forth when and why the agency believed that a comparability analysis is not required or even why an arm’s length analysis can be eschewed—does not, as the majority states, “require agencies to provide ‘exhaustive, contemporaneous legal arguments to preemptively defend its action.’” Op. 41 (quoting Nat’l Elec. Mfrs. Ass’n v. U.S. Dep’t of Energy, 654 F.3d 496, 515 (4th Cir. 2011)). It is the essence of the review that the APA demands.
When the Tax Court conducted that review, it considered the explanation that Treasury offered, and it found that Treasury
B. Chevron Does Not Save Treasury’s Flawed Interpretation of Section 482
Even if Treasury did not err procedurally, I would still find that the regulations are impermissible under Chevron. The Commissioner does not argue that its interpretation of
While I agree with the majority and the Commissioner that the statute is silent as to the precise question of whether the Commissioner may require parties to a QCSA to share the cost of stock-based compensation, I believe that the statute unambiguously communicates the types of cases in which each methodology applies. Specifically,
At step two, we consider whether Treasury’s interpretation is “arbitrary or capricious in substance, or manifestly contrary to the statute.” Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011) (internal citations omitted). The agency’s interpretation is not arbitrary and capricious if it is “rationally related to the goals of the Act.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 388 (1999). “If the [agency]’s interpretation is permissible in light of the statute’s text, structure and purpose, we must defer under Chevron.” Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007). Accordingly, I begin with the text of the statute.
In any case of two or more organizations, trades, or businesses . . . owned or controlled directly or indirectly by the same interests, the Secretary may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations . . . if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses. In the case of any transfer (or license) of intangible property (within the meaning of
section 367(d)(4) ), the income with respect to such transfer or license shall be commensurate with the income attributable to the intangible.
The Commissioner contends, based on Treasury’s purported belief that QCSAs are transfers of intangible property, that Treasury correctly interpreted
The majority attempts to justify Treasury’s departure from the comparability analysis in these circumstances by stating it was reasonable for Treasury to “determin[e] that uncontrolled cost-sharing arrangements,” such as those submitted by the commentators, “do not provide helpful guidance regarding allocations of employee stock compensation.” Op. 28. According to the majority, the legislative history “makes clear” that Congress “intended the commensurate with income standard to displace a comparability analysis where comparable transactions cannot be found.” Op. 13. This reasoning fails for several reasons.
As noted, the text of the statute provides that Treasury may employ the commensurate with income standard only in the case of a transfer or license of intangible property—not whenever Treasury finds that uncontrolled transactions fail to provide helpful guidance. Congress did not leave a gap in the statute allowing Treasury to choose when one methodology displaces the other. Rather, it made its own
Even if Treasury could dispense with a comparability analysis whenever it believed no comparables exist, that interpretation would still fail step two of Chevron because uncontrolled comparable transactions do exist here. Even the majority acknowledges Treasury’s view that a different methodology may only be applied “when comparable transactions do not exist.” Op. 41 n.9 (emphasis added). Treasury itself explained, in effect, that a precondition for the applicability of the commensurate with income standard is the lack of real-world comparable transactions with which to make an arm’s length comparison. Such transactions, as Treasury admitted, would “ordinarily provide significant evidence in determining whether a controlled transaction meets the arm’s length standard.” 68 Fed. Reg. at 51,173. According to the majority, however, imperfect comparables are tantamount to the absence of comparables.
But the arm’s length standard of
Even if Treasury were correct that no comparable transactions exist, Treasury’s reasoning would still fail. Treasury concluded that it could allocate costs because there were no transactions in which parties at arm’s length would even consider taking stock options into account in the context of an arrangement similar to a QCSA. See 68 Fed. Reg. at 51,173. But the absence of evidence is not evidence of absence. Indeed, the absence of any comparable transactions could itself mean that uncontrolled taxpayers would not share the costs of stock-based compensation. Treasury believes, however, that uncontrolled taxpayers would not enter into such transactions, and, rather than find the absence of such transactions meaningful to a comparison, believes it is justified in using different methodologies to assess income. But the fact that evidence of the absence of comparable transactions might support more favorable tax treatment does not mean that no comparison can be made.
Finally, while Treasury’s interpretation of
As this court held in Xilinx II, the previous regulations preserved the primacy of the arm’s length standard and its requirement of comparability analysis. See Xilinx II, 598 F.3d at 1195–96 (explaining the then-operative version of
The majority contends that this does not constitute a change because, “historically[,] the definition of the arm’s length standard has been a more fluid one.” Op. 29. But, as explained above, the comparability analysis has always been a defining aspect of the arm’s length standard. The mere fact that Treasury may have been inconsistent in the way it has applied the arm’s length standard, as the majority contends, does not mean that the statute permits a fluid definition of the standard. City of Arlington v. FCC, 569 U.S. 290, 327 (2013) (Roberts, C.J., dissenting) (“We do not leave it to the agency to decide when it is in charge.”). Because Treasury departed from the comparability analysis and failed to provide a reasoned explanation for why the commensurate with income standard is permissible under the statute, I would find that Treasury’s regulations constitute an impermissible interpretation of the statute at Chevron step two.
C. Stock-based Compensation Is Not a Shared Cost Under Section 482
Because I would find that Treasury’s regulations are procedurally and substantively defective, I would interpret the statute in the first instance, without deference. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“Chevron deference is not warranted where the regulation is procedurally defective—that is, where the
Because I would find the 2003 regulations were invalid, I believe that this court’s decision in Xilinx II controls, and that the Tax Court properly entered judgment in favor of Altera. Altera, 145 T.C. at 134. Even if Xilinx II did not control, I would hold that related parties in QCSAs need not share costs associated with stock-based compensation.
I agree with the majority that
The majority contends that Congress’s choice to use the word “any” is significant. It reasons that, because “§ 482 applies ‘[i]n the case of any transfer . . . of intangible property,’” the statute “cannot reasonably be read to exclude the transfers of expected intangible property.” Op. 26. But, while “any” can be a broadening modifier, it must be read in the context of its surrounding text. Cf. United States v. Gonzales, 520 U.S. 1, 5 (1997) (finding that use of “any” modifies the term it precedes.); see Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008) (narrowing the effect of “any” based on the context in which it appears because “a word is known by the company it keeps.” (internal citations and quotations omitted)).
Here, “any” does not modify “intangible property.” Rather, it precedes and thus, applies only to “transfer.” This indicates that, while the statutory text may cover any kind of transfer, including expected transfers, it does not cover any kind of intangible property—say, for example, intangible property that does not yet exist. Indeed,
While “any” may modify “transfer,” moreover, QCSAs do not provide for future transfers; rather, as noted above, rights to later-developed intangible property—if ever developed—would spring ab initio to the parties who shared the development costs and would thereby dispense
Rather, I would find that QCSAs are governed under the first sentence of
The Commissioner contends that the backdrop against which Congress enacted the 1986 amendment demonstrates that Congress intended
Not all forms of tax avoidance amount to illegal tax evasion. The very definition of a loophole is a gap in the law or a set of rules. While Treasury may promulgate regulations to close such gaps, it must do so in a manner consistent with its statutory authority under the Tax Reform Act and with the procedures outlined in the APA. When it fails to comply with those requirements, its actions cannot be justified by the mere existence of the loophole. In other words, an arm’s length result is not simply any result that maximizes one’s tax obligations. For these reasons, I dissent.
Notes
H.R. REP. NO. 115-466, at 574-75 (2017).The transfer pricing rules of section 482 and the accompanying Treasury regulations are intended to preserve the U.S. tax base by ensuring that taxpayers do not shift income properly attributable to the United States to a related foreign company through pricing that does not reflect an arm s-length result. . . . The arm s-length standard is difficult to administer in situations in which no unrelated party market prices exist for transactions between related parties. . . .
. . . For income from intangible property, section 482 provides “in the case of any transfer (or license) of intangible property (within the meaning of section 936(h)(3)(B)), the income with respect to such transfer or license shall be commensurate with the income attributable to the intangible.” By requiring inclusion in income of amounts commensurate with the income attributable to the intangible, Congress was responding to concerns regarding the effectiveness of the arm s-length standard with respect to intangible property including, in particular, high-profit-potential intangibles.