- 7 - 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 toPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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