I-Tech R&D Limited Partnership - Page 26




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          according to petitioner, I-Tech could have legally marketed                 
          products during or after the 6-month period.                                
               The question is not whether it is possible in principle, or            
          by further contract, to engage in a trade or business, but                  
          whether in reality, the taxpayer possessed the capability in the            
          years before the Court to enter a new trade or business in                  
          connection with the discovery.  See Diamond v. Commissioner, 930            
          F.2d at 375.  The answer to the question of reality must be found           
          in economic reality.  See id.  Economically, it was not in I-               
          Tech’s interest to market the discoveries/products on its own               
          behalf during the 6-month nonexclusive period.  I-Tech was                  
          entitled to royalty income from each R&D company that                       
          successfully completed its research and reduced it to practice              
          during the nonexclusive option period.  If the R&D companies were           
          successful in exploiting their technology, they would exercise              
          their buy-out options to acquire all rights, title, and interest            
          in the technology at the expiration of the nonexclusive license             
          period and continue to pay I-Tech royalty income.  I-Tech then              
          had the right to convert its royalty interests into substantial             
          equity interests in successful R&D companies.                               
               Finally, the restrictions imposed by the Israeli Government            
          seriously undermined I-Tech’s ability to exploit the products in            
          the future.  Under the terms of the Chief Scientist Agreement,              
          only I-Tech in its independent capacity could obtain any patent             






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Last modified: May 25, 2011