- 206 - Where any of the costs or deductions of the renderer do not reflect arm's length consideration and no adjustment has been made under any provision of the Internal Revenue Code to reflect arm's length consideration, the 25-percent test will not apply if, had an arm’s-length charge been made, the costs or deductions attributable to the renderer's rendition of services to related entities would exceed 25 percent of the total costs or deductions of the renderer for the taxable year. * * * [Id.] Once the 25-percent test is satisfied, the regulations provide a second test, which is a determination of whether the rendition of services to related parties is one of the principal activities of the renderer, based "on the facts and circumstances of each particular case" (the facts and circumstances test). Sec. 1.482-2(b)(7)(ii)(a), Income Tax Regs. Factors which may be considered in the facts and circumstances test include: the time devoted to the rendition of the services, the relative cost of the services, the regularity with which the services are rendered, the amount of capital investment, the risk of loss involved, and whether the services are in the nature of supporting services or independent of the other activities of the renderer. * * * [Id.] Pursuant to section 482: the method of allocating, apportioning, or distributing income, deductions, credits, and allowances to be used by the district director, in any case, including the form of the adjustments and the character and source of amounts allocated, shall be determined with reference to the substance of the particular transactions or arrangements which result in the avoidance of taxes or the failure to clearly reflect income. * * * [Sec. 1.482-1(d)(1), Income Tax Regs.] The appropriate adjustments may take the form of, inter alia, an increase or decrease in gross income, or an increase or decrease in deductions (including depreciation). Id.Page: Previous 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 Next
Last modified: May 25, 2011