Chapter 10 Exclude Nonqualified Research

Transcription

1 Chapter 10 Exclude Nonqualified Research 77

2 78 Research Tax Credits At this point, the taxpayer s research projects or cost-centers have been identified. Chapter 9 explained the four-part test and explained how to apply it to the projects or cost-centers to identify qualified and nonqualified research activities. The next step is to eliminate nonqualified research activities. There are several types of research activities that are nonqualified. These activities include research: Relating to style, taste, cosmetic, or seasonal design factors; Beginning after the start of commercial production; For adapting an existing business component; For certain surveys and studies; To reproduce existing products; To develop certain internal-use software; Not conducted in the U.S. or one if its possessions; In the social sciences, art, or humanities (literary, historical, or similar projects); and For services considered funded by a third-party. The rules for the research tax deduction contain similar exclusions. Because the research tax credit statute incorporates the research tax deduction as one of the four-part tests, the tax deduction limitations also apply for the research tax credit. Several of the limitations for the tax deduction are nearly identical to those for the tax credit. 1 They are also addressed in this chapter Style, Taste, Cosmetic, or Seasonal Design Factors Research activities related to style, taste, cosmetic, or seasonal design factors are not qualified. 2 This language seems to refer to activities that aim to improve the appearance of products. The treasury regulations provide an example in which a widget manufacturer paints several widgets a different color and surveys its customers to determine which widget they prefer. 3 The regulations conclude that this activity is not qualified because it relates to style, taste, cosmetic, or seasonal design factors. The Service also addressed this issue in Technical Advice Memorandum , in which a food manufacturer conducted research to improve the functional aspects of food products, such as developing new or improved textures, smells, and flavors. 4 The Service concluded that these activities were qualified. The Service reasoned that the word taste means individual or consumer preference and not sensory taste. This reasoning draws a distinction between making artistic improvements to the food products rather than the functional aspects of the food products. 1 The only limitation that is unique to the research tax deduction statute is the one that says that expenses for the acquisition of another s patent, model, production, or process are not research expenses. Treas. Reg (a)(3)(vi). These expenses would not qualify for the research tax credit because the expenses would not qualify as supply expenses. Supply expenses are expenses to acquire tangible property. I.R.C. 41(b)(2)(C). These intangible properties would not qualify as supply expenses. 2 I.R.C. 41(d)(3)(B). 3 Treas. Reg (a)(8)(ii). 4 T.A.M (Jun. 12, 1995).

3 Exclude Nonqualified Research 79 The Service has not provided any guidance on the term seasonal design. This broad term could be used to exclude research activities that clearly qualify for the research tax credit. For example, this term could be used to disqualify research activities to design a new tire, missile, or other product that functions in harsh winter or summer weather. 5 As with the term taste, a more appropriate interpretation would focus on the word design in the artistic, rather than the functional sense After the Start of Production Research activities performed after the start of commercial production are not qualified. 6 Commercial production starts when the business component is developed to the point that it meets the basic functional and economic requirements of the taxpayer for the component s sale or use. 7 This is the point at which the taxpayer has developed a product, prototype, or process that could be sold or used in the taxpayer s business in the ordinary course of its business. 8 The regulations say that the following activities are deemed to occur after the beginning of commercial production of a business component: Preproduction planning for a finished business component; Tooling-up for production; Trial production runs; Trouble shooting involving detecting faults in production equipment or processes; Accumulating data relating to production processes; and Debugging flaws in a business component. 9 As depicted in Figure 10.01, the typical steps in the research and manufacturing process include inception, preliminary evaluation, development of data for design, economic evaluation, engineering design, procurement, assembly, startup and trial runs, and production. 10 The inception, preliminary evaluation, development of data for design, economic evaluation, and engineering design steps come before the start of commercial production. They can qualify as research. 11 However, the tasks described as procurement, assembly, start-up and trial runs, and production are considered to be at or after the start of commercial production. They generally do not qualify as research Treas. Reg (c)(10), Ex. (1). 6 I.R.C. 41(d)(4)(A). 7 Treas. Reg (c)(2). 8 T.A.M (Apr. 22, 1988) (finding that the taxpayer s product was not ready for commercial production even though the taxpayer had installed the product at its headquarters and on its customer s sites because the installation was part of the process in designing the product). 9 Treas. Reg (c)(2)(ii). 10 See generally I.L.M F (Apr. 27, 2007); F.S.A (Mar. 31, 2000). 11 See I.L.M F (Apr. 27, 2007) (finding that assembly activities take place after the start of commercial production). 12 F.S.A (Mar. 31, 2000) (finding that research ended when the initial products were produced, not when the manufacturing process is brought to the level of producing the proper volume of products).

4 80 Research Tax Credits These steps can vary from taxpayer to taxpayer and from industry to industry. For example, the pharmaceutical drug development process is composed of four stages, namely, preclinical or discovery research, clinical development, regulatory approval, and post marketing. 13 The preclinical or discovery and clinical development steps generally qualify; whereas, the regulatory approval and post marketing steps generally do not. Figure The treasury regulations include several examples that explain these concepts. In one example, the taxpayer designs and manufactures a new belt to be used in its manufacturing equipment. 14 The design and testing activities qualify. 15 The activities to manufacture, install, and test the belts do not qualify because they occurred after the belts met the taxpayer s functional and economic requirements. 16 In another example, a taxpayer produces various types of widgets. 17 It decides to design a new type of widget. The activities to design the new widget are not after the start of commercial production simply because the taxpayer had previously designed and manufactured other types of widgets Memorandum from Henry v. Singleton, Emerging Issue Alert on the Property Treatment of Non-Refundable Upfront Fees, Technology Access Fees, Milestone Payments, Royalties and Deferred Income under a Collaboration Agreement in the Pharmaceutical and Biotech Industries, (Jul. 7, 2005), available at (last visited May 15, 2011). 14 Treas. Reg (c)(10), Ex. (1) Treas. Reg (c)(10), Ex. (2). 18

5 Exclude Nonqualified Research 81 The regulations also include special rules for clinical testing of pharmaceutical products. 19 These rules say that clinical testing of a pharmaceutical product prior to its commercial production in the United States is not treated as occurring after the beginning of commercial production even if the product is commercially available in other countries. They also say that additional clinical testing of a pharmaceutical product after a product has been approved for a specific therapeutic use by the Food and Drug Administration (FDA) and is ready for commercial production and sale is not treated as occurring after the beginning of commercial production if such clinical testing is undertaken to establish new functional uses, characteristics, indications, combinations, dosages, or delivery forms for the product. The regulations define a functional use, characteristic, indication, combination, dosage, or delivery form as new only if it must be approved by the FDA. This limitation can be difficult to apply if the business component is a process improvement rather than a product or service. Specifically, a taxpayer who manufactures products or provides services will usually already have a process in place to manufacture the product or provide the service. Activities to design a new manufacturing process or process to provide a service qualify as process improvements, independent of the research for the underlying product or service Adapting an Existing Business Component Research activities used to adapt existing business components to customer requirements or needs are not qualified. 20 This rule does not apply merely because a business component is intended for a specific customer. 21 Also, this rule does not apply if the taxpayer builds a new business component that satisfies a customer s requirement. The regulations include an example for this rule. 22 In the example, the taxpayer is in the business of licensing computer software. It performs research to adapt the existing software to fit a customer s need. The regulations conclude that the research activities are to adapt an existing business component because the business component, the computer software, already exists and the taxpayer merely modifies it to fit the customer s need. This prevents this type of activity from qualifying. The regulations include another example whereby a rail car manufacturer designs a rail car. 23 The car is similar to the cars ordered by its other customers except for having fewer seats in the passenger cars and a higher quality seating material and carpet that are commercially available. The regulations conclude that the car was merely an adaptation of an existing business component, rather than a new business component. The regulations include yet another example in which a taxpayer purchases existing robotic equipment to modify to fit its own existing needs. 24 The taxpayer is uncertain as to how to modify 19 Treas. Reg (c)(2)(iv). 20 I.R.C. 41(d)(4)(B); Treas. Reg (c)(3). 21 Treas. Reg (c)(3). 22 Treas. Reg (c)(10), Ex. (2)(ii). 23 Treas. Reg (c)(10), Ex Treas. Reg (c)(10), Ex. 7.