Electronic Arts, Inc. and Subsidiaries - Page 55




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          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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