Electronic Arts, Inc. and Subsidiaries - Page 53




                                       - 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 contract              






Page:  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