Xilinx Inc. and Subsidiaries - Page 35

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         * * * [development] costs not directly shared or reimbursed.”                
         (Emphasis added.)  Respondent, however, did not present any                  
         credible evidence that unrelated parties implicitly share the                
         spread or grant date value related to ESOs.  Scott T. Newlon, the            
         only witness respondent proffered to address this issue, did not             
         reference any other economists, unpublished or published                     
         articles, or any transactions supporting his theory.  In fact, he            
         conceded that it was not possible to test whether parties                    
         implicitly include ESOs as a compensation cost in cost-sharing               
         agreements.  Petitioners, however, through the testimony of                  
         numerous credible witnesses, established that companies do not               
         implicitly take into account the spread or the grant date value              
         for purposes of determining costs relating to cost-sharing                   
         agreements.  Furthermore, petitioners established that if                    
         unrelated parties believed that the spread and grant date value              
         were costs related to intangible development activities, such                
         parties would be very explicit about their treatment for purposes            
         of their agreements.  In short, respondent’s implicit cost theory            
         is specious and unsupported.                                                 
                   1.   The Spread                                                    
              Unrelated parties would not share the spread because it is              
         difficult to estimate, unpredictable, and potentially large in               
         amount.  Petitioners’ uncontradicted evidence established that               
         certainty and control are of paramount importance to unrelated               





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