- 60 -
section 936(h)(5)(B), and (2) if attribution is not per se
impermissible, then “there are material facts in dispute that are
relevant to the statutory” test. As to attribution, respondent
contends that (a) it is contrary to the plain meaning of the
statutory text; (b) it violates the “firmly established rule of
statutory construction that states: expressio unius est exclusio
alterius (the expression of one thing implies the exclusion of
another thing)”; (c) the legislative history shows that the
Congress did not intend to permit attribution to satisfy the
profit split method; and (d) absent attribution, EAPR’s own
activities do not constitute the manufacture or production of the
video games.
Respondent urges that the “Congress did not intend its
reference [in sec. 936(h)(5)(B)(ii) (final flush)] to section
954(d)(1) to lessen the requirement that the corporation electing
the profit split method must manufacture the product”, without
“taking into account the activities of a contract manufacturer.”
Also, respondent contends, the Court should not take into account
respondent’s interpretation of section 954 in Rev. Rul. 75-7,
1975-1 C.B. 244.13 Respondent contends that, if attribution is
13Interestingly, respondent includes the following among the
reasons why we should not rely on Rev. Rul. 75-7, 1975-2 C.B.
244, even though that ruling was extant when sec. 936(h) was
enacted:
In Ashland Oil, [95 T.C. 348 (1990)], the court stated:
(continued...)
Page: Previous 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 NextLast modified: May 25, 2011