David D. Stewart: Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: the very model of a modern major milestone.

On February 9, the U.S. Tax Court released its long-awaited transfer pricing decision in 3M v. Commissioner. The case, which had been pending in the Tax Court since 2013, was yet another win for the IRS after what had been a long streak of losses. But the importance of the decision goes beyond 3M.

To tell us more about what the court decided and what it means for transfer pricing litigation is Tax Notes contributing editor Ryan Finley.

Ryan, welcome back to the podcast.

Ryan Finley: Thanks for having me.

David D. Stewart: What are the basics of this 3M case? What is it about?

Ryan Finley: The 3M case is about a very specific set of regulations called the blocked income regulations, and they're part of the transfer pricing regulations under section 482 more generally. But they basically set the conditions under which the IRS will respect the effect of a foreign law that blocks a payment or receipt of an arm's-length amount.

Ordinarily, you'd have to pay an arm's-length amount in a controlled transaction under the transfer pricing regs. But these regulations basically set out the requirements under which the IRS will accept that OK, you were not legally able to make that payment.

David D. Stewart: OK. In what sort of cases would you not be legally able to make a payment?

Ryan Finley: The specific restriction at issue here is Brazil's former regime of maximum on the royalty rate that a local subsidiary could pay a foreign controlling parent. It was essentially written into the tax law, but as a matter of unwritten practice, it was picked up by the Brazilian patent and trademark office and the Brazilian central bank. Between the two, the rules prevented the payment of the royalties that the parties stipulated in 3M would've been arm's length.

David D. Stewart: About how much money are we talking about here?

Ryan Finley: We're looking at about $24 million.

David D. Stewart: All right. Now, this has been going on for quite a while. What all has been happening?

Ryan Finley: Well, yes, that's a question that many have raised, especially since November 2016, which is when the case was fully argued and briefed. There isn't really any clear answer as to why it took 6 1/2 years to get an opinion in this case. I would say that it was fully ... it was reviewed by 16 other Tax Court judges, and there were two concurring opinions and three dissenting opinions. That may have made it take a little bit longer than usual, but the extent of the delay is, to my knowledge, unexplained.

David D. Stewart: All right. Well then, let's get into what they actually decided. You're mentioning this isn't a unanimous decision, but how did the majority come out?

Ryan Finley: The opinion was written by Judge Richard Morrison. Six other Tax Court judges joined that opinion. Two concurred in the result only, and eight joined one or more of the three dissents. It was 9 to 8 in terms of the outcome, but only seven signed on to the controlling opinion. So it wasn't really a majority.

David D. Stewart: OK. This is fairly confusing, but I'll trust you to sort through which ones are most important. So in the controlling decision, how did they come out?

Ryan Finley: The main issue — whether 3M actually satisfied these regulations — was in most cases stipulated. It was really about the validity of these regs. There's the sort of substantive validity under Chevron and the procedural validity under the Administrative Procedure Act. The court ultimately upheld the validity of the regulations under both.

In terms of the Chevron analysis, the question was really whether a 1972 Supreme Court decision, First Security Bank of Utah v. Commissioner, was controlling precedent in terms of the meaning of section 482 and whether that basically dictated the outcome. The court held that it was not because that case was decided on the basis of an old regulatory provision — it wasn't enforced during the tax years at issue — and an older version of the statute that didn't have the commensurate with income standard added in 1986.

Basically, the court held that under Chevron, these regulations were a reasonable way to implement the sort of tax parity policy of the first section of section 482, and also independently a reasonable interpretation of the commensurate with income standard in the second sense.

In terms of the Administrative Procedure Act, the controlling opinion basically says that the policy behind it is self-evident by the text of the regulation. And because there was a satisfactory notice and comment period and the IRS heard the objections of taxpayers but went forward with the regulation anyway, that it was more or less clear why they were doing it and that they rejected the comments, sort of objecting to these regulations when they were issued in '94.

David D. Stewart: OK. Before we continue on with this case, I do want to ask about the commensurate with income idea. Where does it come from and how has it been interpreted until now?

Ryan Finley: Yeah. This is a good question, and I think it played an unexpectedly critical role in the Tax Court's opinion and particularly in the concurring opinions.

Before the Tax Reform Act in 1986, there was only one section to section 482. In 1986 they added this sentence, and it's kind of awkwardly worded, but it says, "The income attributable to a transfer license of a tangible property shall be commensurate with the income attributable to the intangible." Interpreting this sentence and its significance has been a major point of contention and a major point of, I would say, uncertainty in the case law for decades now.

Some basically argue that it really didn't do anything except elucidate the arm's-length standard and how it applies to intangibles. Some think it only is meant to authorize sort of periodic adjustments to the transfer price for intangibles. Some judges, including those who joined Morrison's opinion and the two concurrences, think the commensurate with income standard is sort of a broader provision meant to kind of draw in more kind of economic concepts and less focused on specific comparables.

The relevance in this case was that the allegedly blocked income was an arm's-length royalty for the license of intangible property. So it's not the normal situation in which this arises, which usually comes up when you're dealing with transfer pricing methods. It came up in the Altera v. Commissioner case. But this was an application of that provision that I don't think a lot of people expected.

David D. Stewart: So it was this commensurate with income idea that brought the concurring opinions along?

Ryan Finley: Yeah, that's right. Even though it was independently cited as statutory authorization in the controlling opinion, the commensurate with income standard was the focus of the two concurrences written by Judges Kathleen Kerrigan and Elizabeth Copeland. Copeland's in particular was fairly striking in that it said that you don't even need these regulations in place to get to the same result, that the text of the commensurate with income standard by itself dictates the outcome and would require disregarding this Brazilian royalty rate cap.

David D. Stewart: All right. So as I understand it to this point, we have the main opinion which says that these regs are valid. You have concurring opinions that say the commensurate with income standard allows this. Where did the dissenting opinions come down?

Ryan Finley: Well, one of the dissents, written by Judge Ronald Buch, and I apologize if I mispronounce that, is basically arguing that this commensurate with income amendment is irrelevant, that it was basically added to address entirely different policy concerns, and really has no bearing on the blocked income issue, and consequently that the First Security Bank of Utah decision remains controlling precedent.

In another dissent, Judge Cary Pugh argued that this First Security Bank opinion rested on the definition of income in general and therefore no amendment to section 482 could overturn it. And Judge Emin Toro basically focused on the Administrative Procedure Act and what he believed was a complete failure in the preamble to the 1994 regulations and to the 1993 temporary regulations to in any way explain the basis for these rules and to basically rebut comments that argued that the regulations violated First Security Bank.

David D. Stewart: Now, on a previous episode, you were here talking about the Coca-Cola decision and how there is some relationship between that and this 3M case. Could you tell us about that?

Ryan Finley: Sure. There's a very direct connection. In the Tax Court's 2020 opinion in the Coca-Cola case, they explicitly reserved ruling on a similar blocked income issue because the opinion noted that 3M was pending and therefore that the court wasn't going to rule on that issue there. Shortly after the 3M opinion came out though, Judge Albert Lauber, who's presiding over the Coca-Cola case, issued an order for supplemental briefing, and that presumably will lead to a supplemental opinion on, among other things, how 3M will apply to the Coca-Cola case and the blocked income issue that arose there.

David D. Stewart: Now, does this look like it works to the favor of the IRS in that case as well?

Ryan Finley: Well, yes it does. Now, I would note that the controlling opinion does not assess every condition under the blocked income regulations. It only assesses, depending on how you count them, essentially three, which are the requirements that the restriction apply generally to all comparably situated taxpayers, that it affect controlled and uncontrolled taxpayers alike, and that it be publicly promulgated. And it was the failure to meet those three requirements which the Tax Court upheld as valid that decided the case in 3M.

There are two other requirements. One in particular is important. It's the requirement that the taxpayer cannot make an arm's-length payment in any form, such as in the form of a dividend. The validity of that was not specifically examined in 3M, and that could come up in subsequent cases including Coca-Cola.

Having said that, it's certainly a win for the IRS that the parts of the regulations that were assessed were upheld. But given the narrow margin of victory, given the obviously wide diversity of views on the issue, I think we're only in the sort of early days of how this issue is really going to be decided.

David D. Stewart: What are the broader implications of this decision?

Ryan Finley: Well, a lot of taxpayers have encountered this issue with blocked income in Brazil, specifically royalty income. However, Brazil's passed a number of reforms to their tax laws over the past couple years, including a provisional measure at the very end of 2022 that adopts essentially OECD-aligned transfer pricing rules.

The specific blocked income issue that came up in this case should not arise in the future, but obviously there could always be other situations where a blocked income situation arises. I think, more than anything, it's the broader interpretation of the commensurate with income amendment and its application to an area that maybe wasn't immediately obvious or evident to many people that'll probably be the broadest sort of consequence of 3M, assuming it's upheld, which it very well may not be.

David D. Stewart: Well, that does bring me to my last question, which is that we have this closely divided court decision here. Even though we've spent six years waiting for this opinion, do you expect that this'll drag out longer through an appeals process?

Ryan Finley: I think that is a very safe assumption, and there will probably be multiple appeals, actually. 3M would be appealed to the Eighth Circuit and Coca-Cola, assuming that the 3M opinion is applied in a way that hands the IRS a victory on the blocked income issue in that case, Coca-Cola would likely include that in its appeal to the Eleventh Circuit.

So you very well could have, and in my opinion probably will have, two appeals of the blocked income regulations that'll take place over the next year or so. How the appeals court judges will see the issue is really hard to predict. Obviously, it's not something that's seen as an easy question to answer, at least by the 17 Tax Court judges who were involved in the case.

David D. Stewart: All right. Well, thank you for taking us through this thicket of transfer pricing decision, and I'm sure we'll have you back to talk about the appeals.

Ryan Finley: Sounds good.

David D. Stewart: And now, Coming Attractions. Each week we highlight new and interesting commentary in our magazines. Joining me now is Executive Editor for Commentary Jasper Smith. Jasper, what will you have for us?

Jasper B. Smith: Thanks, Dave. In Tax Notes Federal, Richard Molina and Bruce McClain examine the history of section 7491, enacted to help taxpayers shift the burden of proof to the government and question whether it has achieved its purpose. Three Foley & Lardner practitioners discuss redemption issues with qualified small business stock and how to avoid the founder stock problem.

In Tax Notes State, three Grant Thornton practitioners discuss how taxpayers may use recently released state guidance to help determine the indirect tax treatment of NFTs in states without specific guidance. Timothy Noonan and Katherine Piazza McDonald provide some guidance on how to make the move to lower-tax states.

In Tax Notes International, Nana Ama Sarfo reviews comments to the OECD's public consultation on pillar 1's provisions on digital services taxes and notes the differing opinions on what will be most destabilizing to the international tax system. Oliver Treidler examines the transfer pricing consequences of the U.S. Tax Court's 2022 Medtronic II decision.

In Featured Analysis, Ryan Finley explains that the IRS's win in 3M may be a sign that the courts are paying closer attention to section 482's commensurate with income standard.

And finally, on the Opinions Page, Carrie Brandon Elliot examines comments submitted in response to recent IRS guidance on the corporate AMT.

David D. Stewart: That's it for this week. You can follow me online @TaxStew, and be sure to follow @TaxNotes for all things tax. If you have any comments, questions, or suggestions for a feature episode, you can email us at podcast@taxanalysts.org. And as always, if you like what we're doing here, please leave a rating or review wherever you download this podcast. We'll be back next week with another episode of Tax Notes Talk.