- 53 - property income as United States source income unless an election out is made by the possessions corporation. Sec. 936(h)(1)(A). However, the general rule of possessions corporations is inapplicable if an eligible possessions corporation elects out of its provisions by electing to use either the cost sharing method or the profit split method for computing its taxable income. This election may be made under section 936(h)(5). For purposes of subparagraph (B) of section 936(h)(5), costs incurred by the electing corporation or a member of its affiliated group in connection with contract manufacturing by a person other than a member of the affiliated group are not treated as production costs of the electing corporation in the possession or as direct material costs or as compensation for services performed in the possession. Sec. 936(h)(5)(B)(iii)(II). Rather, they are treated as the direct labor costs of the affiliated group. Id. The effect of the term “contract manufacturing” in section 936(h)(5)(B)(iii)(II) is to make it more difficult to establish a substantial business presence in a possession--within the meaning of section 936(h)(5)(B)(i)--when the possessions corporation uses contract manufacturing for its manufacturing activities. The term appears in a rule which is statutorily directed to apply “For purposes of this subparagraph,” that is, subparagraph (B) of section 936(h)(5). Thus, when examined in context, the “expressio unius” canon of construction suggests that contractPage: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 Next
Last modified: May 25, 2011