Inverworld, Inc., et al. - Page 127

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                  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.                                                  





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