Xilinx Inc. and Subsidiaries - Page 33

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         and harmonizes with the underlying * * * [statute’s]” purpose.               
         The Court, however, will not ignore the regulations’ explicit                
         terms in order to accommodate respondent’s litigating position.              
         While Treasury has the authority to modify its regulations to                
         resolve any conflict within the regulatory scheme, we must “apply            
         the provisions of respondent's regulations as we find them and               
         not as we think they might or ought to have been written.”                   
         Larson v. Commissioner, 66 T.C. 159, 186 (1976).  The arm’s-                 
         length standard is included without exception, and the 1986                  
         modification of section 482 did not eliminate the use of                     
         comparable transactions in determining a controlled taxpayer’s               
         income.  Section 1.482-1, Income Tax Regs., explicitly provides              
         that the arm’s-length standard applies to “all transactions”.                
         Cost-sharing determinations pursuant to section 1.482-7, Income              
         Tax Regs., are not exempted.  Accordingly, if unrelated parties              
         would not share the spread or the grant date value, respondent’s             
         determinations are arbitrary and capricious.                                 
              D.   Unrelated Parties Would Not Share the Spread or                    
                   Grant Date Value                                                   
              Respondent contends that unrelated parties “implicitly”                 
         share the spread12 and the grant date value,13 but both parties              


               12  As a result of respondent’s Oct. 21, 2003, amendment to            
          answer, the parties dispute who has the burden of proof with                
          respect to the spread theory.  Our conclusion is based on the               
          preponderance of the evidence.  Thus, the burden of proof is                
                                                             (continued...)           




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