Seagate Technology, Inc., Successor in Interest to Seagate Peripherals, Inc., f.k.a. Conner Peripherals, Inc.. - Page 9




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          that the FARS contracts are not comparable to the circumstances             
          in this case.                                                               
               The parties’ disagreement raises several questions about the           
          regulations.  Firstly, we must consider whether the Commissioner            
          must be aware of an actual arm’s-length transaction before                  
          allocating costs between controlled entities that have a bona               
          fide cost-sharing arrangement.  Secondly, if an actual arm’s-               
          length example is not required, then we must decide whether the             
          Commissioner must possess facts and/or admissible evidence before           
          making such an allocation.5                                                 
               We do not agree with petitioner’s perception that respondent           
          would have to be aware of an actual arm’s-length transaction as a           
          prerequisite to making any allocations.  Section 1.482-2(d)(4),             
          Income Tax Regs., limits the Commissioner’s ability to make an              
          allocation, in the case of a bona fide cost-sharing arrangement,            
          to the appropriate reflection of each participant’s arm’s-length            
          share of the costs and risks of developing the property.  The               
          regulation goes on to direct that cost-sharing arrangements will            
          be considered “arm’s length” where the “terms and conditions                
          [are] comparable to those which would have been adopted by                  
          unrelated parties similarly situated had they entered into such             


               5 The parties have raised several other factual and/or legal           
          questions that need not be addressed in the setting of this                 
          summary judgment motion because of our conclusion that there is a           
          genuine issue as to a material fact.                                        






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