IRS Cost-Sharing Regulations Revived By Appeals Court

According to Law360, the Ninth Circuit on Tuesday reversed a decision by the U.S. Tax Court that invalidated an Internal Revenue Service cost-sharing regulation in a dispute with an Intel Corp. subsidiary, saying the revenue agency did not exceed its authority in promulgating the rule.

In a 2-1 decision, the appeals court said the IRS is entitled to deference and was justified in issuing the rule under the Administrative Procedure Act, despite comments from the public that opposed the regulation.

The Tax Court had sided with Altera Corp., an Intel subsidiary, in the case in July 2015 after finding that the IRS had ignored significant evidence and public comments while issuing its rule requiring cost-sharing agreements between related parties to include the costs of stock-based compensation.

“Treasury’s refusal to credit oppositional comments is not fatal to a holding that it complied with the APA,” Chief Judge Sidney R. Thomas wrote on behalf of the panel. “Treasury gave sufficient notice of what it intended to do and why; it considered the comments, but it rejected them.”

 The case is Altera Corp. and Subsidiaries v. Commissioner of Internal Revenue, case numbers 16-70496 and 16-70497, in the U.S. Court of Appeals for the Ninth Circuit.

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