H Group Holding, Inc. and Subsidiaries - Page 107




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          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 was                  





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