Electronic Arts, Inc. and Subsidiaries - Page 64




                                       - 64 -                                         
          by a corporation’s employees or officers are to be taken into               
          account in determining whether the corporation manufactured or              
          produced a product in a possession, within the meaning of                   
          sections 936(h)(5)(B)(ii) (final flush) and 954(d)(1)(A).                   
               By the same token, petitioners’ focus on certain language in           
          section 1.954-3(a)(4), Income Tax Regs., overlooks the                      
          regulation’s requirement that various actions have been done “by”           
          the corporation being evaluated.  Also, because of our evaluation           
          in Spalding v. Commissioner, 66 T.C. 1017 (1976), we conclude               
          that the Code’s inventory provisions that petitioners rely on are           
          not good precedents for interpreting “manufactured or produced”             
          within the meaning of section 954(d)(1)(A).                                 
               In light of our rejection of both sides’ views of the law,             
          we conclude that proper evaluation of the merits of the instant             
          cases requires a fuller development of the facts and perhaps a              
          fuller exposition of the law consistent with the views we have              
          expressed in this opinion.  Under these circumstances, we                   
          conclude that petitioners have failed to carry their burden of              
          proving that they are entitled to summary judgment as to the                
          second prong.                                                               
          4.  Analysis                                                                
               The dispute as to the second prong centers on the meaning of           
          the final flush language of section 936(h)(5)(B)(ii), requiring             
          that the product have been--                                                






Page:  Previous  54  55  56  57  58  59  60  61  62  63  64  65  66  67  68  69  70  71  72  73  Next

Last modified: May 25, 2011