- 93 - paid for transfers by the same transferor to unrelated parties involving the same or similar intangible property under the same or similar circumstances. See id. If no sufficiently similar transfers can be found, section 1.482-2(d)(2)(iii), Income Tax Regs., sets forth a list of factors that may be considered in arriving at the amount of the arm’s-length consideration. The arm’s-length nature of an agreement is determined by reference only to facts in existence at the time of the agreement. See Bausch & Lomb, Inc. v. Commissioner, 92 T.C. 525, 601 (1989), affd. 933 F.2d 1084 (2d Cir. 1991). No evidence of similar intangibles being transferred to an unrelated party was produced. Hyatt Domestic’s transaction with HIC and HIC’s with its subsidiaries concerned services and other aspects, in addition to the names and marks. In each instance, the names and marks were part of a larger package including the provision of various services. Accordingly, we utilize the factors specified in section 1.482-2(d)(2)(iii), Income Tax Regs., to formulate our holding, noting that the parties’ experts have not specifically addressed those factors. One significant factor to consider would be the prevailing rates in the industry. Ideally, the 1968 rates for trade names and marks in the hotel industry would be a starting point. The hotel franchise rates presented in the record, however, cover the period 1979 through 1988. The licensing agreement here wasPage: Previous 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 Next
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