|Paige Marvel is a new entry this year|
Transfer pricing litigation does not get to trial often. It is a complex affair that usually demands lengthy preparation – read, expense – and numerous participants, often in the form of expert witnesses – read, more expense. And there is the feeling that taxpayers would prefer if they did not have to explain publicly how they worked out their related-party policies. So practitioners everywhere were waiting for the rarity that was Paige Marvel's US Tax Court decision in Altera last July.
Marvel ruled the Treasury and Internal Revenue Service's disregard for the Administrative Procedure Act meant that the regulation, introduced after the government lost the Xilinx case in 2005 – a decision affirmed by the appeals court in 2010 – that the value of stock-based compensation had to be included in a cost-sharing agreement was invalid. Altera had argued that the regulation was based on something that had already been rejected in Xilinx because it was not deemed to be arm's-length.
Marvel has been on the court for almost 18 years, having been appointed by President Clinton in 1998 after a decade as a partner of Venable. President Obama reappointed her to another 15 year term in 2014. She may not deliver a more significant judgment than in Altera.