RESEARCH AND DEVELOPMENT TAX INCENTIVES

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1 RESEARCH AND DEVELOPMENT TAX INCENTIVES Federal, State, and Foreign Michael D. Rashkin, J.D., LL.M. CCH INCORPOR ATED Chicago

2 xi Table of Contents Chapter 1: Introduction to R&D Tax Incentives and Their Role in the World Economy Overview Introduction to R&D Tax Incentives and Their Role in the World Economy The Importance of Research and Development in Today s Information Economy The Role of Government Worldwide Research and Development Expenditures Research Spending in the United States Nature of Research and Development Expenditures Costs That May Be Eligible Characteristics of Tax Incentives for Research and Development Definition of Research and Development R&D as Defined in the World of Science R&D as Defined in the Tax World Conflict Within Tax Legislation Effectiveness of R&D Credits in Increasing R&D Expenditures Chapter 2: The Deduction for R&D Expenditures Overview The Deduction for R&D Expenditures Electing to Expense Research and Development Expenditures Treatment as Deferred Expenses Changing to a Different Method Trade or Business Requirement Definition of Research and Experimental Expenses Research Costs Definition of Product Excluded Activities Software Expenditures

3 xii Table of Contents Web Site Development Costs Unreasonable Expenses Contract Research Expenditures for Land and Depreciable Property The Alternative Minimum Tax Chapter 3: The Research Credit: Foundations and Eligible Expenditures Overview The Research Credit: Foundations and Eligible Expenditures Legislative Background Qualified Research Expenses Generally In-house Research Expenses Wages In-house Research Expenses Qualified Services In-house Research Expenses Determining the Ratio of Qualified Wages The Substantially All Rule In-house Research Expenses Supplies In-house Research Expenses Use of Computers Contract Research Expenses Research Consortia Summary of Qualified Research Expense Components Trade or Business Requirement Chapter 4: The Research Credit: Elements of Qualified Research Overview The Research Credit: Elements of Qualified Research Interaction of T.D and the 2001 Proposed Regulations 415 Qualified Research Defined Test Number 1: Code Sec. 174 Expense Treatment Test Number 2: Discovering Information That Is Technological in Nature Patent Safe Harbor Information That Is Technological in Nature New or Improved Business Component of the Taxpayer History of the Discovery of Information Test Test Number 3: The Process of Experimentation Evaluation of Alternatives Facts and Circumstances Test Elements of a Process of Experimentation

4 Table of Contents xiii Substantially All Requirement Readily Discernible and Applicable Method, Capability, or Design History of the Process of Experimentation Test Test Number 4: The Purpose of the Research Production Process The Shrinking Back Rule Summary of Four-Part Test for Qualified Research Chapter 5: The Research Credit: Excluded Activities Overview The Research Credit: Excluded Activities Research After Commercial Production Improvements to Existing Products Pharmaceutical Products Adaptation of Existing Business Components Duplication of Existing Business Components Surveys and Studies Internal-use Software Generally Software Primarily for Internal Use Software Used in the Provision of Services Internal-use Software High Threshold of Innovation Test. 545 High Threshold of Innovation Test Examples Foreign Research Social Sciences Funded Research Chapter 6: The Research Credit: Computational Rules Overview The Research Credit: Computational Rules Calculating the Amount of the Credit Alternative Incremental Credit The Base Amount Fixed-base Percentage for Start-up Companies Gross Receipts Re Double Benefit R&D Deduction Reduced Re Double Benefit Election to Reduce the Credit Research Credits During Suspension Periods Consistency Rules Accounting Rules Controlled Groups and Groups Under Common Control Definition of Trade or Business Under Common Control and Controlled Group of Corporations

5 xiv Table of Contents Different Tax Years Among Members of Controlled Group Acquisitions and Dispositions Definition of Acquisition, Separate Unit, and Major Portion Passthrough Entities Short Tax Years Limits on Use of Research Credits Credit Limitation for Individuals Effective Date Chapter 7: The Research Credit: Payments for Basic Research Overview The Research Credit: Payments for Basic Research Requirements Credit Calculation Chapter 8: The Research Credit: Documenting the Credit and Defending Against IRS Challenges Overview The Research Credit: Documenting the Credit and Defending Against IRS Challenges Recordkeeping Five-step Plan for Maximizing the Credit and Handling Audit Challenges Step 1: Gain a Complete Understanding of the Company s Technology and Research Step 2: Assess Whether Each of the Company s Research Activities Satisfies the Tests of Code Sec Step 3: Communicate Your Conclusions to Company Management Step 4: Develop and Implement a Plan for Documenting the Credit Step 5: Plan for an Audit Alternative Approaches Chapter 9: The Research Credit: Evaluation of the Credit Overview The Research Credit: Evaluation of the Credit Fundamental Questions Regarding the Credit What Kind of Research Did Congress Actually What to Encourage?

6 Table of Contents xv Is the R&D Credit Effective? Is the IRS Capable of Administering the Research Credit? Congress Needs to Reassess Chapter 10: State Tax Incentives for Research and Development Overview State Tax Incentives for Research and Development Features of State Research Incentives Deductibility of R&D Expenses Refundability and Exchangeability Limitations on Use of the Research Credit Carryover and Carryback Definition of Qualified Research Expenses Basic Research Incremental Feature Base Amount Alternative Incremental Credit Code Sec. 280C(c) Reduction of R&D Expense Deduction Expiration of Credit Other Research Incentives Survey of State Research Incentives Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky

7 xvi Table of Contents Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming Chapter 11: International Research Tax Incentives Overview International Research Tax Incentives Tax Incentives vs. Direct Funding Type and Nature of Tax Incentives Measuring the Size of Tax Incentives Qualifying R&D Activities Survey of Foreign Tax Incentives

8 Table of Contents xvii Australia Austria Belgium Canada China Denmark France Germany Hong Kong India Ireland Israel Italy Japan Korea Malaysia Mexico Netherlands New Zealand Norway Portugal Singapore Spain Sweden Taiwan Thailand United Kingdom Appendix Practice Tools Legislative Activity Concerning the Federal Research Credit ,010 Audit Techniques Guide... 10,020 Regulatory Activity Under Code Sec ,030 Summary of Internal-use Software Examples... 10,040 Survey Form for Research Managers... 10,050 Summary of State Research Incentives... 10,060 Summary Chart of International R&D Tax Incentives... 10,070 Form 6765 and Instructions... 10,080 Page Index

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