Microsoft Corporation - Page 7

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            election because it failed to maintain a significant business                               
            presence in Puerto Rico with respect to the diskettes under section                         
            936(h)(5)(B)(i).  Consequently, respondent recalculated the prices                          
            at which MS-Puerto Rico sold its diskettes to Microsoft and                                 
            redetermined MS-Puerto Rico's taxable income under the transfer                             
            pricing rules of section 482, as provided under section 936(h)(3).                          
            The NOPA did not refer to any recalculation of the combined taxable                         
            income.                                                                                     
                  A report entitled "Report for Disallowance of Election Out                            
            Provisions of Section 936(h)", prepared by Thomas McDonell (the                             
            McDonell report), an Internal Revenue Service team coordinator, was                         
            attached to the NOPA.  The McDonell report explained the proposed                           
            adjustment:                                                                                 
                  The Internal Revenue Service is proposing to increase                                 
                  taxable income by $1,366,918 for the year ending June 30,                             
                  1990 and $43,771,224 for the year ending June 30, 1991 in                             
                  determining Microsoft Corporation tax liability.  The                                 
                  increase to taxable income is based on a determination                                
                  that diskette duplication activities by Microsoft                                     
                  Corporation's wholly owned subsidiary Microsoft Puerto                                
                  Rico, Inc. do not qualify for the profit split provisions                             
                  of Internal Revenue Code section 936(h). This                                         
                  determination is based primarily on the conclusion that                               
                  diskette duplication is not manufacturing as defined by                               
                  sections 936 and 954 of the Code.                                                     
                  Throughout the audit, both petitioner and MS-Puerto Rico                              
            executed Forms 872, Consents to Extend the Time to Assess Tax, with                         
            respect to the 1990 and 1991 tax years.  The first three of these                           
            extension consents were unrestricted and permitted respondent to                            






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