- 55 -
at 337, we interpreted the statute to allow attribution of the
services of nonemployees if certain conditions are satisfied.
Thus, the courts have interpreted this language to not
preclude attribution as a matter of law, but rather as permitting
attribution or not depending on the factual setting. A careful
examination of respondent’s contention that the plain meaning of
the statute and its legislative history precludes attribution
leads us to conclude that such a plain meaning cannot be drawn
from the statute and its legislative history.
5. Holding
We conclude that EAPR’s manufacturing arrangement in Puerto
Rico met the requirements of the section 936 active-conduct-of-a
-trade-or-business test as we interpreted it in MedChem. This is
a highly factual determination. Frank is also persuasive in this
context.
Further, we conclude that petitioners have met their burden
of showing that there is not any genuine issue as to any material
fact with respect to whether EAPR actively conducted a trade or
business in Puerto Rico within the meaning of section
936(a)(2)(B).
Accordingly, we hold that petitioners are entitled to
summary judgment on this issue.
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