[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4876-4885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2171]



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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Parts 1 and 602

[TD 8656]
RIN 1545-AS24


Section 6662--Imposition of the Accuracy-Related Penalty

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final and temporary regulations.

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SUMMARY: These regulations provide guidance on the imposition of the 
accuracy related penalty under Internal Revenue Code section 6662(e) 
for net section 482 transfer price adjustments. This action implements 
changes to the applicable tax laws made by the Omnibus Budget 
Reconciliation Act of 1993.

DATES: These regulations are effective February 9, 1996.
    Applicability: At the election of the taxpayer, these regulations 
may be applied to all open taxable years beginning after December 31, 
1993.

FOR FURTHER INFORMATION CONTACT: Carolyn D. Fanaroff of the Office of 
Associate Chief Counsel (International), IRS (202) 622-3880 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collections of information contained in these final regulations 
have been reviewed and approved by the Office of Management and Budget 
in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under 
control number 1545-1426. Responses to this collection of information 
are required by section 6662(e) of the Internal Revenue Code in order 
to administer the transfer pricing penalty under that section.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    The estimated average annual burden per recordkeeper varies from 5 
to 15 hours, depending on individual circumstances, with an estimated 
average of 10 hours per recordkeeper.
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden should be sent to the Internal 
Revenue Service, Attn: IRS Reports Clearance Officer, T:FP, Washington, 
DC 20224, and to the Office of Management and Budget, Attn: Desk 
Officer for the Department of the Treasury, Office of Information and 
Regulatory Affairs, Washington, DC 20503.
    Books and records relating to this collection of information must 
be retained as long as their contents may become material in the 
administration of any internal revenue law. Generally, tax returns and 
tax return information are confidential, as required by 26 U.S.C. 6103.

Background

    Sections 6662(e) and (h) of the Internal Revenue Code reflect 
amendments made by Section 13236 of the Omnibus Budget Reconciliation 
Act of 1993 (OBRA `93, Public Law 103-66, 107 Stat. 312). On February 
2, 1994, the IRS and Treasury published temporary regulations (59 FR 
4791) and a notice of proposed rulemaking (58 FR 5263) setting forth 
rules for imposing a substantial valuation misstatement penalty in 
connection with transactions between persons described in section 

[[Page 4877]]
482 (the transactional penalty) and net section 482 transfer price 
adjustments (the net adjustment penalty) and withdrawing previously 
proposed regulations issued on January 21, 1993 (58 FR 5304). On July 
8, 1994, the IRS and Treasury issued new temporary regulations (59 FR 
35030) under section 6662(e) conforming the previously- issued 
regulations to the final 482 regulations published on the same day. A 
cross-referenced notice of proposed rulemaking accompanied the 
temporary regulations (59 FR 35066).
    The IRS and Treasury received numerous comments on the proposed and 
temporary regulations from taxpayers, practitioners, tax treaty 
partners, industry representatives, and professional associations. In 
general, most commenters recognized the government's interest in 
encouraging timely compliance with the arm's length standard at the 
time that a tax return is filed. These commenters primarily addressed 
particular aspects of the specified method rule in Sec. 1.6662-
6(d)(2)(ii) of the temporary regulations that they believed imposed an 
unnecessary burden.
    In response to these comments, the IRS and Treasury have attempted 
to simplify the requirements set forth in the proposed and temporary 
regulations without departing from the basic objective of section 
6662(e): to improve compliance with the arm's length standard by 
encouraging taxpayers to make reasonable efforts to determine and 
document arm's length prices for their intercompany transactions. The 
regulations are adopted as revised by this Treasury decision, and the 
corresponding proposed and temporary regulations are removed. Set forth 
below is a discussion of the most significant comments and the changes 
made in response to them.

Discussion of Major Comments and Changes to the Regulations

The Reasonableness Standard

    Commenters expressed concern that the standard for assertion of the 
transactional penalty and the net adjustment penalty (together, the 
penalty) under the proposed and temporary regulations effectively makes 
the penalty a ``no fault'' penalty to be imposed in any case in which 
the statutory thresholds for imposition are met. Commenters suggested 
that, in all cases, a taxpayer could not have used the most reliable 
measure of an arm's length result if it subsequently is determined that 
the taxpayer's analysis was incorrect. Some of these commenters urged 
the IRS to impose the penalty only where a taxpayer deliberately 
attempts to shift income.
    The IRS and Treasury have determined that it is not necessary to 
revise the proposed and temporary regulations in response to these 
comments. The proposed and temporary regulations do not adopt a ``no-
fault'' approach. Like other penalty statutes, the provisions of 
section 6662(e) incorporate standards of reasonable cause and good 
faith. See section 6662(e)(3)(D) and section 6664(c). Accordingly, 
under both the temporary and final regulations, the penalty is excused 
if the taxpayer, based upon the data that was reasonably available to 
it, reasonably concluded that its analysis was the most reliable and 
satisfied the documentation requirement of the regulations. In such a 
case, the taxpayer may be subject to an adjustment if the IRS later 
employs a different analysis or uses different data leading to a 
different result, but an adjustment does not necessarily trigger the 
imposition of the penalty. The regulations provide guidance on the 
interpretation of the reasonableness standard. See Sec. 1.6662-6(d).

Reported Results

    In response to comments, the final regulations clarify the method 
of determining reported results, and what will be considered amended 
returns for taxpayers electing Accelerated Issue Resolution or similar 
procedures.

Evaluation of Methods Other Than the Method Actually Applied

    Under Sec. 1.6662-6T(d)(2)(ii) of the temporary regulations, 
taxpayers may satisfy the specified method requirement by selecting and 
applying a specified method in a reasonable manner. In order to meet 
this requirement, taxpayers must make a reasonable effort to evaluate 
the potential applicability of the other specified methods in a manner 
consistent with the principles of the best method rule of Sec. 1.482-
1(c). Some commenters argued that this requirement would be overly 
burdensome because it could mean that the taxpayer effectively must 
disprove all other methods in order to avoid imposition of the penalty. 
Others asserted that the requirement in Sec. 1.6662-6T(d)(2)(ii) that 
taxpayers make a reasonable effort to evaluate other methods in a 
manner consistent with the principles of the best method rule was 
inconsistent with language contained in Sec. 1.482-1(c)(1).
    The notion of a comparison of methods is inherent in the best 
method rule of Sec. 1.482-1(c)(1). In order to be judged the ``best'' 
method, the method to some extent must be compared to other methods. 
The examples set forth under Sec. 1.482-8 illustrate an appropriate 
application of a comparative analysis. In introducing these examples, 
Sec. 1.482-8 states that ``a method may be applied in a particular case 
only if the comparability, quality of data, and reliability of 
assumptions under that method make it more reliable than any other 
available measure of the arm's length result.''
    The comparison to be done under the best method rule will not 
necessarily entail a thorough analysis under every potentially 
applicable method. The nature of the available data will often indicate 
either that a particular method should be the most reliable or that 
certain other specified methods would be clearly unreliable. Indeed, in 
some cases, it might be reasonable to conclude that a particular method 
is likely to be the most reliable with virtually no consideration of 
other potentially applicable methods. For example, if the comparable 
uncontrolled price method can be applied based upon a closely 
comparable uncontrolled transaction, it normally would be unnecessary 
to give any serious consideration to the other methods. Whether more 
extensive consideration could be needed in other cases will depend on 
the facts and circumstances.
    Accordingly, the final regulations retain the notion that 
comparisons to other specified methods may have to be made and the 
extent of such comparisons may vary depending upon the data available 
and other factors.

Most Current Data Requirement

    One of the factors taken into account in determining whether a 
taxpayer reasonably selected and applied a specified method is whether 
the taxpayer made a reasonable search for data. The proposed and 
temporary regulations provided that this factor would not be met unless 
the taxpayer used the most current data that was available prior to 
filing the tax return. Section 1.6662-6T(d)(2)(iii)(B).
    Commenters expressed concern that this requirement would be unduly 
burdensome because it would require a taxpayer to continually update 
its transfer pricing analysis until the filing of its tax return. 
Commenters also argued that this rule could lead to an increased 
incidence of double taxation if particular foreign jurisdictions did 
not permit alterations to transactional prices either after the 
transaction or after the close of a taxable year.
    In response to these comments, the requirement to consider the most 


[[Page 4878]]
current available data has been modified. Under the final regulations, 
taxpayers are expected to use only data available before the end of the 
taxable year and consequently have no obligation to continue to search 
for data after the close of the taxable year to avoid the penalty. 
However, when a taxpayer obtains additional relevant data between the 
close of the year and the date on which the tax return is filed (for 
example, in connection with transfer pricing analyses conducted with 
respect to the subsequent taxable year), the final regulations require 
the taxpayer to include such data in its principal documents as 
provided in Sec. 1.6662-6(d)(2)(iii)(B)(9). These documents must be 
provided to the IRS upon request. These changes are intended to relieve 
much of the burden on taxpayers and at the same time to ensure that, 
upon examination, the taxpayer provides the IRS with all relevant 
information in its possession.

Reasonably Thorough Search for Data

    Commenters requested additional guidance regarding the scope of the 
term reasonably thorough search for data under Sec. 1.6662- 
6(d)(2)(ii)(B). The proposed and temporary regulations provide that, in 
determining whether a search for data was reasonably thorough, the 
expense of acquiring additional data may be weighed against the dollar 
amount of the transactions.
    The IRS and Treasury have determined that more specific guidelines 
that would be applicable to all situations cannot be provided because 
the determination of whether a taxpayer engaged in a reasonable search 
for data depends on the facts and circumstances of each case. 
Therefore, the final regulations adhere to the general approach of the 
proposed and temporary regulations.
    However, the final regulations provide a more precise statement of 
the rule that governs the determination of whether the taxpayer made a 
reasonable search for data. Section 1.6662- 6(d)(2)(ii)(B) of the final 
regulations provides that taxpayers may weigh the expense a search for 
data against (i) the likelihood that they will find additional data 
that will improve the reliability of the results and (ii) the amount by 
which any new data would change the taxpayer's taxable income. Thus, a 
taxpayer that has located reliable data leading to an analysis that is 
unlikely to become more reliable if additional data were located would 
not need to continue a search. In addition, as the amount of taxable 
income potentially at stake declines (either because of low dollar 
amounts of the controlled transactions or because of low variability in 
results that are expected under the facts and circumstances), the need 
to continue to search for data also decreases.

Experience and Knowledge

    Section 1.6662-6(d)(2)(ii)(A) provides that one of the factors 
taken into account in determining whether a taxpayer reasonably applied 
a specified method is the experience and knowledge of the taxpayer, 
including all members of the taxpayer's controlled group. Commenters 
objected to this factor because it is not limited to consideration of 
the experience and knowledge of the taxpayer. The purpose of this 
factor is to consider the experience and knowledge of all the parties 
that are likely to be involved in the pricing of the controlled 
transactions. If the scope of this factor were limited to the taxpayer 
participating in the controlled transaction, the experience and 
knowledge of related persons who may have had a role in determining 
intercompany prices of the taxpayer might not be taken into account. 
Accordingly, this factor has not been changed in the final regulations.

Thresholds for Application

    The net adjustment penalty under section 6662(e)(1)(B)(ii) 
potentially applies if the net section 482 adjustment exceeds the 
lesser of $5 million or 10 percent of the taxpayer's gross receipts. 
Some commenters objected to the statutory $5 million threshold, 
pointing out that a relatively insignificant error could easily lead to 
a $5 million adjustment with respect to very large intercompany 
transactions. As a result, taxpayers that made reasonable efforts to 
determine an arm's length result might nonetheless be subject to 
penalty.
    The $5 million threshold for imposition of the penalty is fixed by 
statute. However, Sec. 1.6662-6(d)(2)(ii)(G) of the final regulations 
has been added to provide that the size of an adjustment in relation to 
the size of the controlled transaction is relevant to determining 
whether a taxpayer made a reasonable effort to apply a specified or 
unspecified method. Accordingly, the fact that a proposed adjustment is 
small in relation to the dollar amount of the controlled transaction to 
which it relates is relevant in determining if a taxpayer made a 
reasonable effort to apply a specified or unspecified method.

Reliance on Prior Analyses

    Citing the preamble to the temporary regulations and the 1993 
legislative history, some commenters requested that a pricing 
methodology that was approved by the IRS on audit or in connection with 
an Advanced Pricing Agreement (APA) be considered to satisfy the 
specified method requirement of the regulations. In response to this 
comment, Sec. 1.6662-6(d)(2)(ii)(F) of the final regulations has been 
added to provide that whether a taxpayer relied on a methodology 
developed in connection with an APA or approved by the IRS pursuant to 
an audit is relevant to determining whether the taxpayer made a 
reasonable effort to apply a specified or unspecified method, as long 
as the taxpayer applied the agreed method reasonably and consistently 
with its prior application, and adjustments have been made for any 
material changes in the facts and circumstances since the original 
application of that method. Pursuant to Sec. 1.6662-6(d)(3)(ii) (B) and 
(C), this factor is also relevant if the taxpayer employed an 
unspecified method.

Principal Documents

    Section 1.6662-6(d)(2)(iii)(B) of the final regulations provides a 
list of principal documents that must be provided to the IRS within 30 
days of a request. The proposed and temporary regulations set forth a 
contemporaneous documentation requirement pursuant to which all of 
these documents must have been in existence at the time that the 
taxpayer filed its tax return. In response to comments, several changes 
have been made to these provisions.
    Under the final regulations, the contemporaneous documentation 
requirement does not apply to the summary of data acquired after the 
close of the taxable year or the general index of principal and 
background documents. Thus, these documents do not have to be prepared 
at the time the return is filed.
    Several commenters argued that the requirement that the principal 
documents generally be provided within 30 days of a request is too 
short, but this requirement has not been changed in the final 
regulations because the statute mandates this 30-day disclosure period. 
Moreover, except for the two principal documents excluded from the 
contemporaneous documentation requirement, as described above, all 
principal documents are required to be prepared by the time the tax 
return is filed. The IRS and Treasury believe that 30 days should be 
adequate to provide documents that already exist and that were prepared 
with the intention of being provided to the IRS.
    Other commenters suggested that the list of documents in 
Sec. 1.6662-6(d)(2)(iii)(B) is too specific and that, in 

[[Page 4879]]
some cases, it should not be necessary to provide all of the documents 
listed. Some of these commenters suggested that the list of documents 
be replaced with a more flexible approach under which the documents 
required would depend on the facts and circumstances.
    The final regulations have not been changed in response to this 
comment. The list of principal documents is intended to provide the IRS 
with the documents necessary to conduct a complete examination of a 
taxpayer's transfer pricing. It is anticipated that all of the 
principal documents listed would be needed in connection with all 
transfer pricing audits. In addition, the suggested flexible approach 
would deprive taxpayers and the IRS of much-needed certainty. In the 
absence of the specific guidance provided by the regulations, most 
taxpayers would face uncertainty as to the appropriate scope of the 
documentation requirement.

Disclosure of Profit Split, Lump Sum, and Unspecified Methods

    The proposed and temporary regulations require that the taxpayer 
disclose on its tax return if the taxpayer used a profit split method, 
an unspecified method, or transferred an intangible in exchange for a 
lump sum payment. Commenters expressed concern about this requirement, 
particularly with respect to the profit split method. They asserted 
that it is inappropriate to impose a penalty on a taxpayer that used a 
profit split method, solely because it failed to comply with disclosure 
requirements, if the taxpayer otherwise fully complied with the 
regulations under section 6662(e). In response to this comment, the 
final regulations eliminate the disclosure requirement with respect to 
the profit split method, lump sum payments, and unspecified methods. 
The IRS and Treasury believe that these matters are more appropriately 
addressed under section 6038 and section 6038A of the Internal Revenue 
Code governing, in part, information returns on Forms 5471 and 5472. 
The IRS intends to review these forms to determine whether they should 
be revised.

Effective Date

    These regulations are effective February 9, 1996. However, 
taxpayers may elect to apply these regulations to all open taxable 
years beginning after December 31, 1993.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It has also been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to 
the regulations and, therefore, a Regulatory Flexibility Analysis is 
not required. Pursuant to section 7805(f) of the Internal Revenue Code, 
the notice of proposed rulemaking and temporary regulations preceding 
these regulations were sent to the Small Business Administration for 
comment on their impact on small business.
Drafting Information
    The principal author of these regulations is Carolyn D. Fanaroff of 
the Office of the Associate Chief Counsel (International), IRS. 
However, other personnel from the IRS and Treasury Department 
participated in their development.
List of Subjects
26 CFR Part 1
    Income taxes, Reporting and recordkeeping requirements.
26 CFR Part 602
    Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
    Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
    Paragraph 1. The authority for part 1 is amended by removing the 
entry ``Sections 1.6662-0 and 1.6662-6T'' and adding an entry in 
numerical order to read as follows:

    Authority: 26 U.S.C. 7805. * * *

    Section 1.6662-6 also issued under 26 U.S.C. 6662. * * *
    Par. 2. Section 1.6662-0 is amended by:
    1. Revising the entry for Sec. 1.6662-5T.
    2. Adding an entry for Sec. 1.6662-6.
    3. Removing the entry for Sec. 1.6662-6T.
    The revisions and additions read as follows:

Sec. 1.6662-0 Table of contents.

* * * * *

Sec. 1.6662-5T Substantial and gross valuation misstatements under 
chapter 1 (Temporary).

    (a) through (e)(3) [Reserved].

    (e)(4) Tests related to section 481.

    (i) Substantial valuation statement.

    (ii) Gross valuation misstatement.

    (iii) Property.

    (f) through (i) [Reserved].
    (j) Transactions between persons described in section 482 and 
net section 482 transfer price adjustments.

Sec. 1.6662-6 Transactions between persons described in section 482 
and net section 482 transfer price adjustments.

    (a) In general.
    (1) Purpose and scope.
    (2) Reported results.
    (3) Identical terms used in the section 482 regulations.
    (b) The transactional penalty.
    (1) Substantial valuation misstatement.
    (2) Gross valuation misstatement.
    (3) Reasonable cause and good faith.
    (c) Net adjustment penalty.
    (1) Net section 482 adjustment.
    (2) Substantial valuation misstatement.
    (3) Gross valuation misstatement.
    (4) Setoff allocation rule.
    (5) Gross receipts.
    (6) Coordination with reasonable cause exception under section 
6664(c).
    (7) Examples.
    (d) Amounts excluded from net section 482 adjustments.
    (1) In general.
    (2) Application of a specified section 482 method.
    (i) In general.
    (ii) Specified method requirement.
    (iii) Documentation requirement.
    (A) In general.
    (B) Principal documents.
    (C) Background documents.
    (3) Application of an unspecified method.
    (i) In general.
    (ii) Unspecified method requirement.
    (A) In general.
    (B) Specified method potentially applicable.
    (C) No specified method applicable.
    (iii) Documentation requirement.
    (A) In general.
    (B) Principal and background documents.
    (4) Certain foreign to foreign transactions.
    (5) Special rule.
    (6) Examples.
    (e) Special rules in the case of carrybacks and carryovers.
    (f) Rules for coordinating between the transactional penalty and 
the net adjustment penalty.
    (1) Coordination of a net section 482 adjustment subject to the 
net adjustment penalty and a gross valuation misstatement subject to 
the transactional penalty.
    (2) Coordination of net section 482 adjustment subject to the 
net adjustment penalty and substantial valuation misstatements 
subject to the transactional penalty.

    (3) Examples.

    (g) Effective date.

* * * * *

    Par. 3. Section 1.6662-5T is revised to read as follows:
Sec. 1.6662-5T  Substantial and gross valuation misstatements under 
chapter 1 (Temporary).
    (a) through (e)(3) [Reserved]. For further information, see 
Sec. 1.6662-5(a) through (e)(3).

    (e)(4) Tests related to section 482--(i) Substantial valuation 
misstatement. There is a substantial valuation 

[[Page 4880]]
misstatement if there is a misstatement described in Sec. 1.6662-6 
(b)(1) or (c)(1) (concerning substantial valuation misstatements 
pertaining to transactions between related persons).
    (ii) Gross valuation misstatement. There is a gross valuation 
misstatement if there is a misstatement described in Sec. 1.6662-6 
(b)(2) or (c)(2) (concerning gross valuation misstatements pertaining 
to transactions between related persons).
    (iii) Property. For purposes of this section, the term property 
refers to both tangible and intangible property. Tangible property 
includes property such as land, buildings, fixtures and inventory. 
Intangible property includes property such as goodwill. Covenants not 
to compete, leaseholds, patents, contract rights, debts and choses in 
action, and any other item of intangible property described in 
Sec. 1.482-4(b).
    (f) through (h) [Reserved] For further information, see 
Sec. 1.6662-5 (f) through (h).
    (i) [Reserved].
    (j) Transactions between persons described in section 482 and net 
section 482 transfer price adjustments. For rules relating to the 
penalty imposed with respect to a substantial or gross valuation 
misstatement arising from a section 482 allocation, see Sec. 1.6662-6.
    Par. 4. Section 1.6662-6 is added to read as follows:
Sec. 1.6662-6  Transactions between persons described in section 482 
and net section 482 transfer price adjustments.

    (a) In general--(1) Purpose and scope. Pursuant to section 6662(e) 
a penalty is imposed on any underpayment attributable to a substantial 
valuation misstatement pertaining to either a transaction between 
persons described in section 482 (the transactional penalty) or a net 
section 482 transfer price adjustment (the net adjustment penalty). The 
penalty is equal to 20 percent of the underpayment of tax attributable 
to that substantial valuation misstatement. Pursuant to section 6662(h) 
the penalty is increased to 40 percent of the underpayment in the case 
of a gross valuation misstatement with respect to either penalty. 
Paragraph (b) of this section provides specific rules related to the 
transactional penalty. Paragraph (c) of this section provides specific 
rules related to the net adjustment penalty, and paragraph (d) of this 
section describes amounts that will be excluded for purposes of 
calculating the net adjustment penalty. Paragraph (e) of this section 
sets forth special rules in the case of carrybacks and carryovers. 
Paragraph (f) of this section provides coordination rules between 
penalties. Paragraph (g) of this section provides the effective date of 
this section.
    (2) Reported results. Whether an underpayment is attributable to a 
substantial or gross valuation misstatement must be determined from the 
results of controlled transactions that are reported on an income tax 
return, regardless of whether the amount reported differs from the 
transaction price initially reflected in the taxpayer's books and 
records. The results of controlled transactions that are reported on an 
amended return will be used only if the amended return is filed before 
the Internal Revenue Service has contacted the taxpayer regarding the 
corresponding original return. A written statement furnished by a 
taxpayer subject to the Coordinated Examination Program or a written 
statement furnished by the taxpayer when electing Accelerated Issue 
Resolution or similar procedures will be considered an amended return 
for purposes of this section if it satisfies either the requirements of 
a qualified amended return for purposes of Sec. 1.6664-2(c)(3) or such 
requirements as the Commissioner may prescribe by revenue procedure. In 
the case of a taxpayer that is a member of a consolidated group, the 
rules of this paragraph (a)(2) apply to the consolidated income tax 
return of the group.
    (3) Identical terms used in the section 482 regulations. For 
purposes of this section, the terms used in this section shall have the 
same meaning as identical terms used in regulations under section 482.
    (b) The transactional penalty--(1) Substantial valuation 
misstatement. In the case of any transaction between related persons, 
there is a substantial valuation misstatement if the price for any 
property or services (or for the use of property) claimed on any return 
is 200 percent or more (or 50 percent or less) of the amount determined 
under section 482 to be the correct price.
    (2) Gross valuation misstatement. In the case of any transaction 
between related persons, there is a gross valuation misstatement if the 
price for any property or services (or for the use of property) claimed 
on any return is 400 percent or more (or 25 percent or less) of the 
amount determined under section 482 to be the correct price.
    (3) Reasonable cause and good faith. Pursuant to section 6664(c), 
the transactional penalty will not be imposed on any portion of an 
underpayment with respect to which the requirements of Sec. 1.6664-4 
are met. In applying the provisions of Sec. 1.6664-4 in a case in which 
the taxpayer has relied on professional analysis in determining its 
transfer pricing, whether the professional is an employee of, or 
related to, the taxpayer is not determinative in evaluating whether the 
taxpayer reasonably relied in good faith on advice. A taxpayer that 
meets the requirements of paragraph (d) of this section with respect to 
an allocation under section 482 will be treated as having established 
that there was reasonable cause and good faith with respect to that 
item for purposes of Sec. 1.6664-4. If a substantial or gross valuation 
misstatement under the transactional penalty also constitutes (or is 
part of) a substantial or gross valuation misstatement under the net 
adjustment penalty, then the rules of paragraph (d) of this section 
(and not the rules of Sec. 1.6664-4) will be applied to determine 
whether the adjustment is excluded from calculation of the net section 
482 adjustment.
    (c) Net adjustment penalty--(1) Net section 482 adjustment. For 
purposes of this section, the term net section 482 adjustment means the 
sum of all increases in the taxable income of a taxpayer for a taxable 
year resulting from allocations under section 482 (determined without 
regard to any amount carried to such taxable year from another taxable 
year) less any decreases in taxable income attributable to collateral 
adjustments as described in Sec. 1.482-1(g). For purposes of this 
section, amounts that meet the requirements of paragraph (d) of this 
section will be excluded from the calculation of the net section 482 
adjustment. Substantial and gross valuation misstatements that are 
subject to the transactional penalty under paragraph (b) (1) or (2) of 
this section are included in determining the amount of the net section 
482 adjustment. See paragraph (f) of this section for coordination 
rules between penalties.
    (2) Substantial valuation misstatement. There is a substantial 
valuation misstatement if a net section 482 adjustment is greater than 
the lesser of 5 million dollars or ten percent of gross receipts.
    (3) Gross valuation misstatement. There is a gross valuation 
misstatement if a net section 482 adjustment is greater than the lesser 
of 20 million dollars or twenty percent of gross receipts.
    (4) Setoff allocation rule. If a taxpayer meets the requirements of 
paragraph (d) of this section with respect to some, but not all of the 
allocations made under section 482, then for purposes of determining 
the net section 482 adjustment, setoffs, as taken into account under 
Sec. 1.482-1(g)(4), must be 

[[Page 4881]]
applied ratably against all such allocations. The following example 
illustrates the principle of this paragraph (c)(4):

    Example. (i) The Internal Revenue Service makes the following 
section 482 adjustments for the taxable year:

(1) Attributable to an increase in gross income because of an           
 increase in royalty payments........................................  $
                                                                       9
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
(2) Attributable to an increase in sales proceeds due to a decrease     
 in the profit margin of a related buyer.............................  6
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
(3) Because of a setoff under Sec.  1.482-1(g)(4)....................  (
                                                                       5
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       )
                                                                      --
    Total section 482 adjustments....................................  1
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                        

    (ii) The taxpayer meets the requirements of paragraph (d) with 
respect to adjustment number one, but not with respect to adjustment 
number two. The five million dollar setoff will be allocated ratably 
against the nine million dollar adjustment ($9,000,000/
$15,000,000 x $5,000,000=$3,000,000) and the six million dollar 
adjustment ($6,000,000/$15,000,000 x $5,000,000=$2,000,000). 
Accordingly, in determining the net section 482 adjustment, the nine 
million dollar adjustment is reduced to six million dollars 
($9,000,000-$3,000,000) and the six million dollar adjustment is 
reduced to four million dollars ($6,000,000-$2,000,000). Therefore, 
the net section 482 adjustment equals four million dollars.

    (5) Gross receipts. For purposes of this section, gross receipts 
must be computed pursuant to the rules contained in Sec. 1.448-
1T(f)(2)(iv), as adjusted to reflect allocations under section 482.
    (6) Coordination with reasonable cause exception under section 
6664(c). Pursuant to section 6662(e)(3)(D), a taxpayer will be treated 
as having reasonable cause under section 6664(c) for any portion of an 
underpayment attributable to a net section 482 adjustment only if the 
taxpayer meets the requirements of paragraph (d) of this section with 
respect to that portion.
    (7) Examples. The principles of this paragraph (c) are illustrated 
by the following examples:

    Example 1. (i) The Internal Revenue Service makes the following 
section 482 adjustments for the taxable year:

(1) Attributable to an increase in gross income because of              
 an increase in royalty payments...........................   $2,000,000
(2) Attributable to an increase in sales proceeds due to a              
 decrease in the profit margin of a related buyer..........    2,500,000
(3) Attributable to a decrease in the cost of goods sold                
 because of a decrease in the cost plus mark-up of a                    
 related seller............................................    2,000,000
                                                            ------------
    Total section 482 adjustments..........................    6,500,000
                                                                        

    (ii) None of the adjustments are excluded under paragraph (d) of 
this section. The net section 482 adjustment ($6.5 million) is 
greater than five million dollars. Therefore, there is a substantial 
valuation misstatement.
    Example 2. (i) The Internal Revenue Service makes the following 
section 482 adjustments for the taxable year:

(1) Attributable to an increase in gross income because of an           
 increase in royalty payments........................................  $
                                                                       1
                                                                       1
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
(2) Attributable to an increase in sales proceeds due to a decrease     
 in the profit margin of a related buyer.............................  2
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
(3) Because of a setoff under Sec.  1.482-1(g)(4)....................  (
                                                                       9
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       )
                                                                      --
    Total section 482 adjustments....................................  4
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                       ,
                                                                       0
                                                                       0
                                                                       0
                                                                        

    (ii) The taxpayer has gross receipts of sixty million dollars 
after taking into account all section 482 adjustments. None of the 
adjustments are excluded under paragraph (d) of this section. The 
net section 482 adjustment ($4 million) is less than the lesser of 
five million dollars or ten percent of gross receipts ($60 
million x 10%=$6 million). Therefore, there is no substantial 
valuation misstatement.
    Example 3. (i) The Internal Revenue Service makes the following 
section 482 adjustments to the income of an affiliated group that 
files a consolidated return for the taxable year:

(1) Attributable to Member A...............................   $1,500,000
(2) Attributable to Member B...............................    1,000,000
(3) Attributable to Member C...............................    2,000,000
                                                            ------------
    Total section 482 adjustments..........................    4,500,000
                                                                        

    (ii) Members A, B, and C have gross receipts of 20 million 
dollars, 12 million dollars, and 11 million dollars, respectively. 
Thus, the total gross receipts are 43 million dollars. None of the 
adjustments are excluded under paragraph (d) of this section. The 
net section 482 adjustment ($4.5 million) is greater than the lesser 
of five million dollars or ten percent of gross receipts ($43 
million  x  10% = $4.3 million). Therefore, there is a substantial 
valuation misstatement.
    Example 4. (i) The Internal Revenue Service makes the following 
section 482 adjustments to the income of an affiliated group that 
files a consolidated return for the taxable year:

(1) Attributable to Member A...............................   $1,500,000
(2) Attributable to Member B...............................    3,000,000
(3) Attributable to Member C...............................    2,500,000
                                                            ------------
    Total section 482 adjustments..........................    7,000,000
                                                                        

    (ii) Members A, B, and C have gross receipts of 20 million 
dollars, 35 million dollars, and 40 million dollars, respectively. 
Thus, the total gross receipts are 95 million dollars. None of the 
adjustments are excluded under paragraph (d) of this section. The 
net section 482 adjustment (7 million dollars) is greater than the 
lesser of five million dollars or ten percent of gross receipts ($95 
million  x  10% = $9.5 million). Therefore, there is a substantial 
valuation misstatement.
    Example 5. (i) The Internal Revenue Service makes the following 
section 482 adjustments to the income of an affiliated group that 
files a consolidated return for the taxable year:

(1) Attributable to Member A...............................   $2,000,000
(2) Attributable to Member B...............................    1,000,000
(3) Attributable to Member C...............................    1,500,000
                                                            ------------
    Total section 482 adjustments..........................    4,500,000
                                                                        

    (ii) Members A, B, and C have gross receipts of 10 million 
dollars, 35 million dollars, and 40 million dollars, respectively. 
Thus, the total gross receipts are 85 million dollars. None of the 
adjustments are excluded under paragraph (d) of this section. The 
net section 482 adjustment ($4.5 million) is less than the lesser of 
five million dollars or ten percent of gross receipts ($85 million 
x  10%=$8.5 million). Therefore, there is no substantial valuation 
misstatement even though individual member A's adjustment ($2 
million) is greater than ten percent of its individual gross 
receipts ($10 million  x  10%=$1 million).

    (d) Amounts excluded from net section 482 adjustments--(1) In 
general. An amount is excluded from the calculation of a net section 
482 adjustment if the requirements of paragraph (d) (2), (3), or (4) of 
this section are met with respect to that amount.
    (2) Application of a specified section 482 method--(i) In general. 
An amount is excluded from the calculation of a net section 482 
adjustment if the taxpayer establishes that both the specified method 
and documentation requirements of this paragraph (d)(2) are met with 
respect to that amount. For purposes of this paragraph (d), a method 
will be considered a specified method if it is described in the 
regulations under section 482 and the method applies to transactions of 
the type under review. A qualified cost sharing arrangement is 
considered a specified method. See Sec. 1.482-7. An unspecified method 
is not considered a specified method. See Secs. 1.482-3(e) and 1.482-
4(d).
    (ii) Specified method requirement. The specified method requirement 
is met if the taxpayer selects and applies 

[[Page 4882]]
a specified method in a reasonable manner. The taxpayer's selection and 
application of a specified method is reasonable only if, given the 
available data and the applicable pricing methods, the taxpayer 
reasonably concluded that the method (and its application of that 
method) provided the most reliable measure of an arm's length result 
under the principles of the best method rule of Sec. 1.482-1(c). A 
taxpayer can reasonably conclude that a specified method provided the 
most reliable measure of an arm's length result only if it has made a 
reasonable effort to evaluate the potential applicability of the other 
specified methods in a manner consistent with the principles of the 
best method rule. The extent of this evaluation generally will depend 
on the nature of the available data, and it may vary from case to case 
and from method to method. This evaluation may not entail an exhaustive 
analysis or detailed application of each method. Rather, after a 
reasonably thorough search for relevant data, the taxpayer should 
consider which method would provide the most reliable measure of an 
arm's length result given that data. The nature of the available data 
may enable the taxpayer to conclude reasonably that a particular 
specified method provides a more reliable measure of an arm's length 
result than one or more of the other specified methods, and accordingly 
no further consideration of such other specified methods is needed. 
Further, it is not necessary for a taxpayer to conclude that the 
selected specified method provides a more reliable measure of an arm's 
length result than any unspecified method. For examples illustrating 
the selection of a specified method consistent with this paragraph 
(d)(2)(ii), see Sec. 1.482-8. Whether the taxpayer's conclusion was 
reasonable must be determined from all the facts and circumstances. The 
factors relevant to this determination include the following:
    (A) The experience and knowledge of the taxpayer, including all 
members of the taxpayer's controlled group.
    (B) The extent to which reliable data was available and the data 
was analyzed in a reasonable manner. A taxpayer must engage in a 
reasonably thorough search for the data necessary to determine which 
method should be selected and how it should be applied. In determining 
the scope of a reasonably thorough search for data, the expense of 
additional efforts to locate new data may be weighed against the 
likelihood of finding additional data that would improve the 
reliability of the results and the amount by which any new data would 
change the taxpayer's taxable income. Furthermore, a taxpayer must use 
the most current reliable data that is available before the end of the 
taxable year in question. Although the taxpayer is not required to 
search for relevant data after the end of the taxable year, the 
taxpayer must maintain as a principal document described in paragraph 
(d)(2)(iii)(B)(9) of this section any relevant data it obtains after 
the end of the taxable year but before the return is filed, if that 
data would help determine whether the taxpayer has reported its true 
taxable income.
    (C) The extent to which the taxpayer followed the relevant 
requirements set forth in regulations under section 482 with respect to 
the application of the method.
    (D) The extent to which the taxpayer reasonably relied on a study 
or other analysis performed by a professional qualified to conduct such 
a study or analysis, including an attorney, accountant, or economist. 
Whether the professional is an employee of, or related to, the taxpayer 
is not determinative in evaluating the reliability of that study or 
analysis, as long as the study or analysis is objective, thorough, and 
well reasoned. Such reliance is reasonable only if the taxpayer 
disclosed to the professional all relevant information regarding the 
controlled transactions at issue. A study or analysis that was 
reasonably relied upon in a prior year may reasonably be relied upon in 
the current year if the relevant facts and circumstances have not 
changed or if the study or analysis has been appropriately modified to 
reflect any change in facts and circumstances.
    (E) If the taxpayer attempted to determine an arm's length result 
by using more than one uncontrolled comparable, whether the taxpayer 
arbitrarily selected a result that corresponds to an extreme point in 
the range of results derived from the uncontrolled comparables. Such a 
result generally would not likely be closest to an arm's length result. 
If the uncontrolled comparables that the taxpayer uses to determine an 
arm's length result are described in Sec. 1.482-1(e)(2)(ii)(B), one 
reasonable method of selecting a point in the range would be that 
provided in Sec. 1.482-1(e)(3).
    (F) The extent to which the taxpayer relied on a transfer pricing 
methodology developed and applied pursuant to an Advance Pricing 
Agreement for a prior taxable year, or specifically approved by the 
Internal Revenue Service pursuant to a transfer pricing audit of the 
transactions at issue for a prior taxable year, provided that the 
taxpayer applied the approved method reasonably and consistently with 
its prior application, and the facts and circumstances surrounding the 
use of the method have not materially changed since the time of the 
IRS's action, or if the facts and circumstances have changed in a way 
that materially affects the reliability of the results, the taxpayer 
makes appropriate adjustments to reflect such changes.
    (G) The size of a net transfer pricing adjustment in relation to 
the size of the controlled transaction out of which the adjustment 
arose.
    (iii) Documentation requirement--(A) In general. The documentation 
requirement of this paragraph (d)(2)(iii) is met if the taxpayer 
maintains sufficient documentation to establish that the taxpayer 
reasonably concluded that, given the available data and the applicable 
pricing methods, the method (and its application of that method) 
provided the most accurate measure of an arm's length result under the 
principles of the best method rule in Sec. 1.482-1(c), and provides 
that documentation to the Internal Revenue Service within 30 days of a 
request for it in connection with an examination of the taxable year to 
which the documentation relates. With the exception of the 
documentation described in paragraphs (d)(2)(iii)(B) (9) and (10) of 
this section, that documentation must be in existence when the return 
is filed. The district director may, in his discretion, excuse a minor 
or inadvertent failure to provide required documents, but only if the 
taxpayer has made a good faith effort to comply, and the taxpayer 
promptly remedies the failure when it becomes known. The required 
documentation is divided into two categories, principal documents and 
background documents as described in paragraphs (d)(2)(iii) (B) and (C) 
of this section.
    (B) Principal documents. The principal documents should accurately 
and completely describe the basic transfer pricing analysis conducted 
by the taxpayer. The documentation must include the following--
    (1) An overview of the taxpayer's business, including an analysis 
of the economic and legal factors that affect the pricing of its 
property or services;
    (2) A description of the taxpayer's organizational structure 
(including an organization chart) covering all related parties engaged 
in transactions potentially relevant under section 482, including 
foreign affiliates whose transactions directly or indirectly affect the 
pricing of property or services in the United States; 

[[Page 4883]]

    (3) Any documentation explicitly required by the regulations under 
section 482;
    (4) A description of the method selected and an explanation of why 
that method was selected;
    (5) A description of the alternative methods that were considered 
and an explanation of why they were not selected;
    (6) A description of the controlled transactions (including the 
terms of sale) and any internal data used to analyze those 
transactions. For example, if a profit split method is applied, the 
documentation must include a schedule providing the total income, 
costs, and assets (with adjustments for different accounting practices 
and currencies) for each controlled taxpayer participating in the 
relevant business activity and detailing the allocations of such items 
to that activity;
    (7) A description of the comparables that were used, how 
comparability was evaluated, and what (if any) adjustments were made;
    (8) An explanation of the economic analysis and projections relied 
upon in developing the method. For example, if a profit split method is 
applied, the taxpayer must provide an explanation of the analysis 
undertaken to determine how the profits would be split;
    (9) A description or summary of any relevant data that the taxpayer 
obtains after the end of the tax year and before filing a tax return, 
which would help determine if a taxpayer selected and applied a 
specified method in a reasonable manner; and
    (10) A general index of the principal and background documents and 
a description of the recordkeeping system used for cataloging and 
accessing those documents.
    (C) Background documents. The assumptions, conclusions, and 
positions contained in principal documents ordinarily will be based on, 
and supported by, additional background documents. Documents that 
support the principal documentation may include the documents listed in 
Sec. 1.6038A-3(c) that are not otherwise described in paragraph 
(d)(2)(iii)(B) of this section. Every document listed in those 
regulations may not be relevant to pricing determinations under the 
taxpayer's specific facts and circumstances and, therefore, each of 
those documents need not be maintained in all circumstances. Moreover, 
other documents not listed in those regulations may be necessary to 
establish that the taxpayer's method was selected and applied in the 
way that provided the most accurate measure of an arm's length result 
under the principles of the best method rule in Sec. 1.482-1(c). 
Background documents need not be provided to the Internal Revenue 
Service in response to a request for principal documents. If the 
Internal Revenue Service subsequently requests background documents, a 
taxpayer must provide that documentation to the Internal Revenue 
Service within 30 days of the request. However, the district director 
may, in his discretion, extend the period for producing the background 
documentation.
    (3) Application of an unspecified method--(i) In general. An 
adjustment is excluded from the calculation of a net section 482 
adjustment if the taxpayer establishes that both the unspecified method 
and documentation requirements of this paragraph (d)(3) are met with 
respect to that amount.
    (ii) Unspecified method requirement--(A) In general. If a method 
other than a specified method was applied, the unspecified method 
requirement is met if the requirements of paragraph (d)(3)(ii) (B) or 
(C) of this section, as appropriate, are met.
    (B) Specified method potentially applicable. If the transaction is 
of a type for which methods are specified in the regulations under 
section 482, then a taxpayer will be considered to have met the 
unspecified method requirement if the taxpayer reasonably concludes, 
given the available data, that none of the specified methods was likely 
to provide a reliable measure of an arm's length result, and that it 
selected and applied an unspecified method in a way that would likely 
provide a reliable measure of an arm's length result. A taxpayer can 
reasonably conclude that no specified method was likely to provide a 
reliable measure of an arm's length result only if it has made a 
reasonable effort to evaluate the potential applicability of the 
specified methods in a manner consistent with the principles of the 
best method rule. However, it is not necessary for a taxpayer to 
conclude that the selected method provides a more reliable measure of 
an arm's length result than any other unspecified method. Whether the 
taxpayer's conclusion was reasonable must be determined from all the 
facts and circumstances. The factors relevant to this conclusion 
include those set forth in paragraph (d)(2)(ii) of this section.
    (C) No specified method applicable. If the transaction is of a type 
for which no methods are specified in the regulations under section 
482, then a taxpayer will be considered to have met the unspecified 
method requirement if it selected and applied an unspecified method in 
a reasonable manner. For purposes of this paragraph (d)(3)(ii)(C), a 
taxpayer's selection and application is reasonable if the taxpayer 
reasonably concludes that the method (and its application of that 
method) provided the most reliable measure of an arm's length result 
under the principles of the best method rule in Sec. 1.482-1(c). 
However, it is not necessary for a taxpayer to conclude that the 
selected method provides a more reliable measure of an arm's length 
result than any other unspecified method. Whether the taxpayer's 
conclusion was reasonable must be determined from all the facts and 
circumstances. The factors relevant to this conclusion include those 
set forth in paragraph (d)(2)(ii) of this section.
    (iii) Documentation requirement--(A) In general. The documentation 
requirement of this paragraph (d)(3) is met if the taxpayer maintains 
sufficient documentation to establish that the unspecified method 
requirement of paragraph (d)(3)(ii) of this section is met and provides 
that documentation to the Internal Revenue Service within 30 days of a 
request for it. That documentation must be in existence when the return 
is filed. The district director may, in his discretion, excuse a minor 
or inadvertent failure to provide required documents, but only if the 
taxpayer has made a good faith effort to comply, and the taxpayer 
promptly remedies the failure when it becomes known.
    (B) Principal and background documents. See paragraphs (d)(2)(iii) 
(B) and (C) of this section for rules regarding these two categories of 
required documentation.
    (4) Certain foreign to foreign transactions. For purposes of 
calculating a net section 482 adjustment, any increase in taxable 
income resulting from an allocation under section 482 that is 
attributable to any controlled transaction solely between foreign 
corporations will be excluded unless the treatment of that transaction 
affects the determination of either corporation's income from sources 
within the United States or taxable income effectively connected with 
the conduct of a trade or business within the United States.
    (5) Special rule. If the regular tax (as defined in section 55(c)) 
imposed on the taxpayer is determined by reference to an amount other 
than taxable income, that amount shall be treated as the taxable income 
of the taxpayer for purposes of section 6662(e)(3). Accordingly, for 
taxpayers whose regular tax is determined by reference to an amount 
other than taxable income, the increase in that amount resulting 

[[Page 4884]]
from section 482 allocations is the taxpayer's net section 482 
adjustment.
    (6) Examples. The principles of this paragraph (d) are illustrated 
by the following examples:

    Example 1. (i) The Internal Revenue Service makes the following 
section 482 adjustments for the taxable year:

(1) Attributable to an increase in gross income because of              
 an increase in royalty payments...........................   $9,000,000
(2) Not a 200 percent or 400 percent adjustment............    2,000,000
(3) Attributable to a decrease in the cost of goods sold                
 because of a decrease in the cost plus mark-up of a                    
 related seller............................................    9,000,000
                                                            ------------
    Total section 482 adjustments..........................   20,000,000
                                                                        

    (ii) The taxpayer has gross receipts of 75 million dollars after 
all section 482 adjustments. The taxpayer establishes that for 
adjustments number one and three, it applied a transfer pricing 
method specified in section 482, the selection and application of 
the method was reasonable, it documented the pricing analysis, and 
turned that documentation over to the IRS within 30 days of a 
request. Accordingly, eighteen million dollars is excluded from the 
calculation of the net section 482 adjustment. Because the net 
section 482 adjustment is two million dollars, there is no 
substantial valuation misstatement.
    Example 2. (i) The Internal Revenue Service makes the following 
section 482 adjustments for the taxable year:

(1) Attributable to an increase in gross income because of              
 an increase in royalty payments...........................   $9,000,000
(2) Attributable to an adjustment that is 200 percent or                
 more of the correct section 482 price.....................    2,000,000
(3) Attributable to a decrease in the cost of goods sold                
 because of a decrease in the cost plus mark-up of a                    
 related seller............................................    9,000,000
                                                            ------------
    Total section 482 adjustments..........................   20,000,000
                                                                        

    (ii) The taxpayer has gross receipts of 75 million dollars after 
all section 482 adjustments. The taxpayer establishes that for 
adjustments number one and three, it applied a transfer pricing 
method specified in section 482, the selection and application of 
the method was reasonable, it documented that analysis, and turned 
the documentation over to the IRS within 30 days. Accordingly, 
eighteen million dollars is excluded from the calculation of the 
section 482 transfer pricing adjustments for purposes of applying 
the five million dollar or 10% of gross receipts test. Because the 
net section 482 adjustment is only two million dollars, the taxpayer 
is not subject to the net adjustment penalty. However, the taxpayer 
may be subject to the transactional penalty on the underpayment of 
tax attributable to the two million dollar adjustment.
    Example 3. CFC1 and CFC2 are controlled foreign corporations 
within the meaning of section 957. Applying section 482, the IRS 
disallows a deduction for 25 million dollars of the interest that 
CFC1 paid to CFC2, which results in CFC1's U.S. shareholder having a 
subpart F inclusion in excess of five million dollars. No other 
adjustments under section 482 are made with respect to the 
controlled taxpayers. However, the increase has no effect upon the 
determination of CFC1's or CFC2's income from sources within the 
United States or taxable income effectively connected with the 
conduct of a trade or business within the United States. 
Accordingly, there is no substantial valuation misstatement.

    (e) Special rules in the case of carrybacks and carryovers. If 
there is a substantial or gross valuation misstatement for a taxable 
year that gives rise to a loss, deduction or credit that is carried to 
another taxable year, the transactional penalty and the net adjustment 
penalty will be imposed on any resulting underpayment of tax in that 
other taxable year. In determining whether there is a substantial or 
gross valuation misstatement for a taxable year, no amount carried from 
another taxable year shall be included. The following example 
illustrates the principle of this paragraph (e):

    Example. The Internal Revenue Service makes a section 482 
adjustment of six million dollars in taxable year 1, no portion of 
which is excluded under paragraph (d) of this section. The 
taxpayer's income tax return for year 1 reported a loss of three 
million dollars, which was carried to taxpayer's year 2 year income 
tax return and used to reduce income taxes otherwise due with 
respect to year 2. A determination is made that the six million 
dollar allocation constitutes a substantial valuation misstatement, 
and a penalty is imposed on the underpayment of tax in year 1 
attributable to the substantial valuation misstatement and on the 
underpayment of tax in year 2 attributable to the disallowance of 
the net operating loss in year 2. For purposes of determining 
whether there is a substantial or gross valuation misstatement for 
year 2, the three million dollar reduction of the net operating loss 
will not be added to any section 482 adjustments made with respect 
to year 2.

    (f) Rules for coordinating between the transactional penalty and 
the net adjustment penalty--(1) Coordination of a net section 482 
adjustment subject to the net adjustment penalty and a gross valuation 
misstatement subject to the transactional penalty. In determining 
whether a net section 482 adjustment exceeds five million dollars or 10 
percent of gross receipts, an adjustment attributable to a substantial 
or gross valuation misstatement that is subject to the transactional 
penalty will be taken into account. If the net section 482 adjustment 
exceeds five million dollars or ten percent of gross receipts, any 
portion of such amount that is attributable to a gross valuation 
misstatement will be subject to the transactional penalty at the forty 
percent rate, but will not also be subject to net adjustment penalty at 
a twenty percent rate. The remaining amount is subject to the net 
adjustment penalty at the twenty percent rate, even if such amount is 
less than the lesser of five million dollars or ten percent of gross 
receipts.
    (2) Coordination of net section 482 adjustment subject to the net 
adjustment penalty and substantial valuation misstatements subject to 
the transactional penalty. If the net section 482 adjustment exceeds 
twenty million dollars or 20 percent of gross receipts, the entire 
amount of the adjustment is subject to the net adjustment penalty at a 
forty percent rate. No portion of the adjustment is subject to the 
transactional penalty at a twenty percent rate.
    (3) Examples. The following examples illustrate the principles of 
this paragraph (f):

    Example 1. (i) Applying section 482, the Internal Revenue 
Service makes the following adjustments for the taxable year:

(1) Attributable to an adjustment that is 400 percent or                
 more of the correct section 482 arm's length result.......   $2,000,000
(2) Not a 200 or 400 percent adjustment....................    2,500,000
                                                            ------------
    Total..................................................    4,500,000
                                                                        

    (ii) The taxpayer has gross receipts of 75 million dollars after 
all section 482 adjustments. None of the adjustments is excluded 
under paragraph (d) (Amounts excluded from net section 482 
adjustments) of this section, in determining the five million dollar 
or 10% of gross receipts test under section 6662(e)(1)(B)(ii). The 
net section 482 adjustment (4.5 million dollars) is less than the 
lesser of five million dollars or ten percent of gross receipts ($75 
million  x  10% = $7.5 million). Thus, there is no substantial 
valuation misstatement. However, the two million dollar adjustment 
is attributable to a gross valuation misstatement. Accordingly, the 
taxpayer may be subject to a penalty, under section 6662(h), equal 
to 40 percent of the underpayment of tax attributable to the gross 
valuation misstatement of two million dollars. The 2.5 million 
dollar adjustment is not subject to a penalty under section 
6662(b)(3).
    Example 2. The facts are the same as in Example 1, except the 
taxpayer has gross receipts of 40 million dollars. The net section 
482 adjustment ($4.5 million) is greater than the lesser of five 
million dollars or ten percent of gross receipts ($40 million  x  
10% 

[[Page 4885]]
= $4 million). Thus, the five million dollar or 10% of gross receipts 
test has been met. The two million dollar adjustment is attributable 
to a gross valuation misstatement. Accordingly, the taxpayer is 
subject to a penalty, under section 6662(h), equal to 40 percent of 
the underpayment of tax attributable to the gross valuation 
misstatement of two million dollars. The 2.5 million dollar 
adjustment is subject to a penalty under sections 6662(a) and 
6662(b)(3), equal to 20 percent of the underpayment of tax 
attributable to the substantial valuation misstatement.
    Example 3. (i) Applying section 482, the Internal Revenue 
Service makes the following transfer pricing adjustments for the 
taxable year:

(1) Attributable to an adjustment that is 400 percent or                
 more of the correct section 482 arm's length result.......   $6,000,000
(2) Not a 200 or 400 percent adjustment....................   15,000,000
                                                            ------------
    Total..................................................   21,000,000
                                                                        

    (ii) None of the adjustments are excluded under paragraph (d) 
(Amounts excluded from net section 482 adjustments) in determining 
the twenty million dollar or 20% of gross receipts test under 
section 6662(h). The net section 482 adjustment (21 million dollars) 
is greater than twenty million dollars and thus constitutes a gross 
valuation misstatement. Accordingly, the total adjustment is subject 
to the net adjustment penalty equal to 40 percent of the 
underpayment of tax attributable to the 21 million dollar gross 
valuation misstatement. The six million dollar adjustment will not 
be separately included for purposes of any additional penalty under 
section 6662.

    (g) Effective date. This section is effective February 9, 1996. 
However, taxpayers may elect to apply this section to all open taxable 
years beginning after December 31, 1993.


Sec. 1.6662-6T  [Removed]

    Par. 5. Section 1.6662-6T is removed.
    Par. 6a. In Sec. 1.6664-0, the introductory text is amended by 
removing the reference ``1.6664-4'' and adding ``1.6664-4T'' in its 
place.
    Par. 6b. Section 1.6664-4T is revised to read as follows:


Sec. 1.6664-4T  Reasonable cause and good faith exception to section 
6662 penalties.

    (a) through (e) [Reserved].
    (f) Transactions between persons described in section 482 and net 
section 482 transfer price adjustments. For purposes of applying the 
reasonable cause and good faith exception of section 6664(c) to net 
section 482 adjustments, the rules of Sec. 1.6662-6(d) apply. A 
taxpayer that does not satisfy the rules of Sec. 1.6662-6(d) for a net 
section 482 adjustment cannot satisfy the reasonable cause and good 
faith exception under section 6664(c). The rules of this section apply 
to underpayments subject to the transactional penalty in Sec. 1.6662-
6(b). If the standards of the net section 482 penalty exclusion 
provisions under Sec. 1.6662-6(d) are met with respect to such 
underpayments, then the taxpayer will be considered to have acted with 
reasonable cause and good faith for purposes of this section.

PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

    Par. 7. The authority citation for part 602 continues to read as 
follows:

    Authority: 26 U.S.C. 7805.

    Par. 8. In Sec. 602.101, paragraph (c) is amended by removing the 
entry for Sec. 1.6662-6T from the table and adding an entry in 
numerical order to the table to read ``1.6662-6....1545-1426''.
Margaret Milner Richardson,
Commissioner of Internal Revenue.

    Approved: January 19, 1996.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 96-2171 Filed 2-8-96; 8:45 am]
BILLING CODE 4830-01-U