Jeffrey A. Harper & Katherine M. Harper ( 2023 )

United States Tax Court
T.C. Memo. 2023-57JEFFREY A. HARPER AND KATHERINE M. HARPER,
Petitioners
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 26176-16. Filed May 10, 2023.
—————
John H. Dies, Jeremy M. Fingeret, Jefferson H. Read, and Matthew S.
Reddington, for petitioners.
Erika B. Cormier, Brian M. Howell, and Christopher J. Richmond, for
respondent.
MEMORANDUM OPINION
COPELAND, Judge: Section 41 1 provides a tax credit for certain
“qualified research expenses” of taxpayers carrying on a trade or
business. Petitioners, Jeffrey Harper and Katherine Harper, claimed
section 41 credits of $46,656 and $778,610 for tax years 2012 and 2013
(years in issue), respectively, in connection with the activities of their
S corporation, Harper Construction Co. (HCC), owned through a grantor
trust of which Mr. Harper is the sole grantor and trustee. He is also the
president of HCC. The Commissioner of the Internal Revenue Service
(Respondent) disallowed these credits and issued a notice of deficiency
to the Harpers on September 9, 2016, determining deficiencies in federal
1 Unless otherwise indicated, all statutory references are to the Internal
Revenue Code, Title 26 U.S.C. (I.R.C. or Code), in effect at all relevant times, all
regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in
effect at all relevant times, and all Rule references are to the Tax Court Rules of
Practice and Procedure. Some dollar amounts are rounded.
Served 05/10/23
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[*2] income tax of $433,707 and $2,249,217 and section 6662(a)
accuracy-related penalties of $86,741 and $449,843 for 2012 and 2013,
respectively. The deficiencies were additionally based on disallowing a
net operating loss carryback from 2014 and making certain ancillary
adjustments. The Harpers filed their Petition with this Court on
December 7, 2016, assigning error to all parts of Respondent’s notice of
deficiency. When they filed their Petition, the Harpers were residents
of California, and HCC was a corporation organized and operating under
the laws of California.
This matter is before the Court on Respondent’s Motion for
Partial Summary Judgment and the Harpers’ Memorandum in
Opposition to Respondent’s Motion for Summary Judgment.
Respondent has alleged that the construction designs that underlie the
Harpers’ claims for section 41 credits for increasing research activities
fail to meet the definition of “business components” that constitutes one
of four threshold tests for qualified research. See I.R.C. § 41(d)(1), (2)(B).
Respondent concludes that this failure alone means that Petitioners do
not qualify for their claimed credits under section 41 for the years in
issue.
Background
The following background statement is drawn from the pleadings,
the parties’ Motion papers, and the Declarations and Exhibits attached
thereto. We state the background solely for purposes of ruling on the
pending Motion for Partial Summary Judgment and not as findings of
fact.
HCC was founded in 1974 and is based in San Diego, California.
It is a privately owned design builder and general contractor that has
worked on residential, commercial, and industrial projects around the
country and overseas. Over the last 15 years, HCC has specialized in
military design-build projects, including over 30 military housing
projects.
HCC reported 53 separate projects during the years in issue as
eligible for the research credit under section 41, including but not
limited to work on the construction of aircraft hangars, maintenance
facilities, military recruit barracks and living quarters, college
buildings, medical clinics, instructional facilities, fitness centers,
parking garages, training facilities, a 200,000-gallon solar-powered
water tank, a photovoltaic renewable energy generation system, a multi-
3
[*3] megawatt renewable energy system for use in South Africa, and a
specialized energy solution in Las Vegas, Nevada. Respondent and the
Harpers agree that each of HCC’s projects is unique to a particular
location, client need, and set of specifications, as well as being subject to
regulatory and environmental constraints.
During the preconstruction, construction, design/development,
and postconstruction phases of each project, HCC engaged in some or all
of the following activities and services:
• Schematic Estimates
• System Cost Studies
• Scheduling
• Constructability Reviews
• Design Management
• Green Building Reviews
• Zoning and Regulatory Investigation
• Preliminary Milestone Construction Schedule
• Project Management
• Final Bidding & Buyout
• Contract Procurement
• Jobsite Controls and Quality Assurance
• Safety Management
• LEED [Leadership in Energy and Environmental Design] Project
Analysis & Registration/Certification
• Design and Development Estimates
• System Cost Studies
• Maintainability Reviews
• System Studies
• Value Engineering
• Sustainable Building Design & Construction
• Design Meetings
• As-Built Documentation
• Warranty Programming
• USGBC [U.S. Green Building Council] LEED Certification
Management
HCC’s work for each of its clients proceeded in five stages: job bid,
conceptual design, design development, documentation, and
construction. During the job bid phase, HCC would create a bid to
present to the prospective client. Upon winning a bid, HCC began
conceptual design, which involved identifying alternatives relating to
building materials, building orientation, piping and duct routing,
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[*4] insulation materials, and equipment sizes. In the course of this
work, HCC prepared drawings and diagrams of potential layouts for the
project.
Moving to the design development phase, HCC prepared detailed
floor plans, along with an outline of major building materials, building
systems, building code analysis, and methods of implementing the
design. HCC would provide the client with several “submittals” at
various stages of the design development phase. Once the design
reached 90% completion, HCC prepared plans sufficient for permitting
and construction. These plans contained both graphic and written
specifications. HCC proceeded with actual construction once the
building plans garnered client and regulatory approval.
In 2012 the Harpers hired alliantgroup, LP (alliantgroup), to
opine on HCC’s eligibility for qualified credits for increasing research
activities in earlier tax years. Subsequently, alliantgroup prepared a
research credit study for each of the years in issue; however, those
studies were not finalized until after the relevant tax returns had been
filed. For the 2012 tax year the research credit study shows that the
“Total Federal Qualifying Wages” were $4,621,679 and the “Total
Federal QREs [Qualifying Research Expenses]” were also $4,621,679.
Therefore, the total “Gross Federal R&D Tax Credits” were $462,168. 2
Similarly, for the 2013 tax year the research credit study shows “Total
Federal Qualifying Wages” of $3,874,821 and “Total Federal QREs” of
$3,874,821. Therefore, the total “Gross Federal R&D Tax Credits” were
$387,482. Further, the alliantgroup research studies described HCC’s
relevant research activities as follows: “Each project was undertaken to
develop unique solutions to a combination of various aspects spanning
the disciplines of architectural, civil, structural, mechanical, electrical,
and plumbing engineering, among others,” and HCC “faced many
uncertainties regarding the final design resulting from the unique
combinations of all project requirements.”
Discussion
I. Summary Judgment
The purpose of summary judgment is to expedite litigation and
avoid costly, time-consuming, and unnecessary trials. Fla. Peach Corp.
2 This figure equals 20% of the excess of HCC’s QREs (as calculated by
alliantgroup) over HCC’s “base amount,” a certain percentage of its average annual
gross receipts for the preceding four tax years. See I.R.C. § 41(a)(1), (c).
5
[*5] v. Commissioner, 90 T.C. 678, 681 (1988). Under Rule 121(a)(2), we
may grant summary judgment when there is no genuine dispute as to
any material facts and a decision may be rendered as a matter of law.
Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17
F.3d 965 (7th Cir. 1994). A partial summary adjudication is appropriate
if some but not all issues in the case may be decided as a matter of law,
even though not all the issues in the case are disposed of. See Rule
121(a)(1) and (2); Turner Broad. Sys., Inc. & Subs. v. Commissioner, 111
T.C. 315, 323–24 (1998).
The burden is on the moving party to demonstrate that no
genuine dispute as to any material fact remains and that it is entitled
to judgment as a matter of law. FPL Grp., Inc. & Subs. v. Commissioner,
116 T.C. 73, 74–75 (2001). In deciding whether to grant summary
judgment, we construe factual materials and inferences drawn from
them in the light most favorable to the nonmoving party. Sundstrand,
98 T.C. at 520 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). However, the nonmoving party may not rest upon the mere
allegations or denials in its pleadings but instead must set forth specific
facts showing that there is a genuine dispute for trial. Rule 121(d);
Sundstrand, 98 T.C. at 520.
Having reviewed Respondent’s Motion and the Harpers’
Opposition, along with all the documents submitted in support of these
filings, we will deny the Motion.
II. Section 41 Credit for Increasing Research Activities
When Congress added the section 41 qualified research expenses
credit to the Code in 1981, it aimed to spur business investments in
technological research, finding that the motivation of section 174 was
insufficient. H.R. Rep. No. 97-201, at 111 (1981), as reprinted in 1981-2
C.B. 352, 358. 3 In particular, Congress sought to encourage research
activity that would not otherwise have been undertaken. See Union
Carbide Corp. & Subs. v. Commissioner, T.C. Memo. 2009-50, 97 T.C.M.
(CCH) 1207, 1252, aff’d, 697 F.3d 104 (2d Cir. 2012). For amounts paid
or incurred in tax years beginning in 2021 or earlier, as here, section 174
3 The research credit was originally added as section 44F to the 1954 Code by
the Economic Recovery Tax Act of 1981, Pub. L. No. 97-34, § 221(a), 95 Stat. 172, 241.
The credit was recodified at section 30 by the Deficit Reduction Act of 1984, Pub. L.
No. 98-369, § 471(c), 98 Stat. 494, 826. The current version of the credit is found at
section 41. See Tax Reform Act of 1986, Pub. L. No. 99-514, § 231, 100 Stat. 2085,
2173–80 (amending the research credit and renumbering its section as section 41).
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[*6] permitted taxpayers to currently deduct certain business-related
research and experimental expenditures, rather than capitalizing them.
For amounts paid or incurred in tax years beginning after 2021, section
174 generally requires capitalization of such expenditures, with
amortization of the cost generally over five years. See Tax Cuts and Jobs
Act of 2017, Pub. L. No. 115-97, § 13206, 131 Stat. 2054, 2111–13.
The section 41 credit is generally calculated as 20% of any excess
of the taxpayer’s “qualified research expenses” for the tax year over a
prescribed “base amount.” I.R.C. § 41(a)(1). Qualified research
expenses must be appropriately related to “qualified research,”
encompassing activities that meet all of the following four threshold
tests: (1) the section 174 test, (2) the technological information test,
(3) the business component test, and (4) the process of experimentation
test. I.R.C. § 41(d); Max v. Commissioner, T.C. Memo. 2021-37, at *28
& n.10 (citing Siemer Milling Co. v. Commissioner, T.C. Memo. 2019-37,
at *19).
The first test (section 174 test) requires that the expenditures
involved in the research qualify as “research or experimental
expenditures” under section 174. 4 The regulations under section 174
provide that “[e]xpenditures represent research and development costs
in the experimental or laboratory sense if they are for activities intended
to discover information that would eliminate uncertainty concerning the
development or improvement of a product.” Treas. Reg. § 1.174-2(a)(1).
“Product” is defined to include “any pilot model, process, formula,
invention, technique, patent, or similar property.” Id. subpara. (3). The
second test (technological information test) requires that the research
be undertaken for the purpose of discovering information of a
technological nature. I.R.C. § 41(d)(1)(B)(i). The third test (business
component test) requires that the taxpayer intend the discovered
information “to be useful in the development of a new or improved
business component of the taxpayer.” I.R.C. § 41(d)(1)(B)(ii). The fourth
test (process of experimentation test) requires that substantially all of
the activities involved in the research constitute a process of
experimentation for a purpose related to performance, reliability,
4 The version of section 41 in effect during the years in issue referred to
“expenses under section 174,” and section 174 at those times referred to “research or
experimental expenditures.” The present version of section 41 refers to “specified
research or experimental expenditures under section 174,” I.R.C. § 41(d)(1)(A), and the
present version of section 174 likewise refers to “specified research or experimental
expenditures.” All further citations in this Opinion refer to the statutes as in effect
during the years in issue.
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[*7] quality, or a new or improved function, but not related to style,
taste, cosmetic, or seasonal design factors. I.R.C. § 41(d)(1)(C), (3).
However, regardless of whether activities satisfy all four of these
tests, they will nonetheless fail to constitute qualified research if they
fall into any of the eight excluded categories of section 41(d)(4), such as
research “conducted after the beginning of commercial production of the
business component,” “related to the adaptation of an existing business
component to a particular customer’s requirement or need,” or “related
to reproduction [duplication] of an existing business component . . . from
plans [or] blueprints,” among others. I.R.C. § 41(d)(4)(A)–(C); see also
Max, T.C. Memo. 2021-37, at *47; Little Sandy Coal Co. v.
Commissioner, T.C. Memo. 2021-15, at *16 n.4, aff’d, 62 F.4th 287 (7th
Cir. 2023).
III. Business Component Test
Respondent asks us to focus on the business component test.
Section 41(d)(2)(B) defines a business component as “any product,
process, computer software, technique, formula, or invention which is to
be—(i) held for sale, lease, or license, or (ii) used by the taxpayer in a
trade or business of the taxpayer.” Under this test, the qualifying
research must be undertaken to discover information useful in the
development of a new or improved product, process, technique, etc. See
Siemer Milling Co., T.C. Memo. 2019-37, at *22.
Respondent asks the Court to rule that HCC fails the business
component test on any of the following alternative grounds:
1. The buildings and facilities constructed by HCC never
belonged to HCC, yet only these structures (and not the
designs created by HCC) were “new or improved.”
2. HCC’s designs were not “products,” as that word is
intended in the statute, but rather “tangible
manifestation[s] of construction services.”
3. Neither HCC’s designs nor the facilities it constructed were
ever “held for sale” by HCC.
4. HCC did not “use” its designs in the sense intended by the
statute, because Congress meant for taxpayers’ use of
business components to be “meaningful” and so “affect the
way a business operates to some degree.” Respondent
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[*8] alleges that “HCC’s day-to-day operations were not
changed by its designs.”
IV. Analysis of Respondent’s Arguments
We will take each of Respondent’s arguments in turn, keeping in
mind that in considering this Motion for Partial Summary Judgment we
must construe factual materials and inferences drawn from them in the
light most favorable to the Harpers.
First, Respondent’s contention that HCC’s designs (as distinct
from the constructed facilities) were never “new or improved” is
contradicted by the record. HCC evidently engaged in a lengthy, multi-
step process of conceptual design and design development for each
project, resulting in novel ideas and iterative improvements to them.
We have consistently held that to be useful in the development of a new
or improved business component the research need only provide some
level of functional improvement in establishing the business component
element. I.R.C. § 41(d)(1)(B)(i); Norwest Corp. & Subs. v. Commissioner,
110 T.C. 454, 495 (1998) (“[I]t is evident that Congress intended only
that the taxpayer’s activities provide some level of functional
improvement, at a minimum.”); Union Carbide Corp. & Subs., 97 T.C.M.
(CCH) at 1255.
To illustrate the dilemma faced by the Court in evaluating this
Motion for Partial Summary Judgment, we recite below a sample of the
project descriptions provided by the Harpers (which we take as true for
purposes of ruling on the present Motion). We cannot, on the record
before us, dispel the notion that the designs that HCC developed for
these projects could be new or improved:
The Marine Corps Recruit Depot (MCRD) Complex. The
Harpers report that HCC conducted research to determine
“the appropriate design of the site’s drainage system to
provide an efficient and cost-effective storm water drainage
design solution.”
The Yuma Hangar. The Harpers report that HCC
conducted research to design a “cockpit air supply (CAS)
system that distributed air underneath the hangar at the
proper temperature and air pressure, and withstood the
soil condition.”
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[*9] Mission Command Training Center. The Harpers report
that in order to “meet secure network and systems
certification” for a battlefield-simulation facility, HCC
“designed the facility’s walls with panels on both sides of
the wall.”
Tactical Equipment Maintenance Facility. The Harpers
report that for this facility, HCC “designed numerous
skylights installed into the roof, light wells, and vertical
light shafts to carry the natural light into the interior
spaces on the first floor to maximize energy efficiency.”
Pendleton BEQ Package 5. The Harpers report that HCC
“incorporated various elements into the final design such
as Photovoltaic (‘PV’) panels connected to carport roofs,
underground retention chambers for water collection, and
formaldehyde-free particle boards to improve performance
and environmental efficiencies.”
While the designs that HCC produced for these facilities may or
may not run afoul of other restrictions for claiming a credit for qualified
research expenses, they could be construed as processes, techniques, or
inventions that would constitute a business component of HCC’s
operations; and it is further possible they were processes, techniques, or
inventions replicated and used in HCC’s business. See I.R.C.
§ 41(d)(2)(B). The same is true with the remaining project descriptions
(not recited here). On the record before us, we cannot rule out these
possibilities.
As to Respondent’s second argument, we agree that HCC’s
designs were not “products.” The designs cannot be products because
that term—when used in business or economic contexts—typically
denotes a physical object made for sale to customers. See, e.g., Product,
The Oxford Dictionary and Usage Guide to the English Language (1995)
(defining “product,” in relevant part, as a “thing or substance produced,
esp. by manufacture”); Product, Oxford English Dictionary (2d ed. 1989)
(“That which is produced by any action, operation, or work; a production;
the result. Now freq. that which is produced commercially for sale.”);
Product, Black’s Law Dictionary (7th ed. 1999) (“Something that is
distributed commercially for use or consumption and that is usually
(1) tangible personal property, (2) the result of fabrication or processing,
and (3) an item that has passed through a chain of commercial
distribution before ultimate use or consumption.”); Product, Merriam-
10
[*10] Webster’s Dictionary, https://www.merriam-webster.com
/dictionary/product (last visited Apr. 21, 2023) (“something produced
especially: commodity”). However, as we noted above, the designs could
still potentially constitute processes, techniques, or inventions, all of
which are included in the definitional list of business components. See
I.R.C. § 41(d)(2)(B). The failure of HCC’s designs to constitute products
would not by itself entitle Respondent to a determination that HCC’s
designs did not meet the business component test.
Third, the record before the Court does not contain any of the
construction contracts for the projects at issue. Therefore, we cannot
establish whether HCC ever owned the building facilities and structures
it constructed before conveying them to its clients. Respondent asserts
that “HCC did not build a building then transfer title to the buyer; it
built a building on behalf of someone else, on land owned by that other
party.” Respondent supports this assertion by extrapolating from HCC’s
contracts in 2008 and 2010—whereas this case concerns projects in 2012
and 2013. HCC reports that “[s]tructures and facilities built by HCC,
while custom built to specifications and requirements, [were] sold.” Mr.
Harper also submitted a declaration stating, among other things, that
the facilities built by HCC were “built to be sold to the ultimate owners.”
While it seems implausible that buildings constructed on government
and private property under a bid process were ever owned by HCC, the
record before us does not conclusively establish ownership status.
Regardless, as we explained above, even if HCC did not develop any
“products” that it used or held for sale, we must still consider the
processes, techniques, and potential inventions that HCC evidently
developed. Because there is a dispute as to whether those processes,
techniques, and potential inventions were used in HCC’s business, we
need not resolve ownership of the buildings and other structures for
ruling on this Motion for Partial Summary Judgment.
Respondent’s fourth argument—that HCC did not use its designs
in the “meaningful” way intended by Congress—hinges on his
conclusory and unevidenced assertion that “HCC’s day-to-day
operations were not changed by its designs.” However, it is indisputable
that HCC used its designs—the designs that were “permitt[ed] and
approv[ed]” before building—in the construction process, in the sense of
referring to and relying on them. Therefore, we must assume that by
“day-to-day,” Respondent means to refer to habitual use.
The plain meaning of “use” belies Respondent’s contention that
section 41(d)(2)(B)(ii)—according to which a business component, if it is
11
[*11] not “held for sale, lease, or license,” must be “used by the taxpayer
in a trade or business of the taxpayer”—requires some habitual
availment. Nothing in the statute itself indicates that Congress is using
the word “use” in such a special way, and we have found no
contemporary dictionary definitions of “use” that clearly conform with
Respondent’s interpretation. 5 Respondent supports his interpretation
of “use” by gesturing to the legislative history, particularly Congress’
evident intent for the credit for increasing research activities to
stimulate economic growth. However, where an undefined statutory
term has a clear and unambiguous meaning on its face, we do not look
past that meaning to the legislative history. As the Supreme Court has
stated:
In statutory interpretation disputes, a court’s proper
starting point lies in a careful examination of the ordinary
meaning and structure of the law itself. Schindler Elevator
Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011).
Where . . . that examination yields a clear answer, judges
must stop. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,
438 (1999).
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019).
Accordingly, we reject Respondent’s invitation to accord the word “use”
a specialized definition in the business component test. 6
From the existing record, it appears that HCC may have
conducted research to develop new or improved processes, techniques,
and possibly inventions that it used in its construction business.
5 In the Oxford English Dictionary’s entry for “use” (as a verb), no definition
requires habitualness, regularity, or indefiniteness, although some definitions include
such characteristics with an “especially” qualification. See, e.g., Use, Oxford English
Dictionary (3d ed. 2011, rev. Mar. 2023), https://www.oed.com/view/Entry/
220636 (“I.5.b. To carry out or carry on (an action or activity), esp. regularly or
habitually . . . . Now rare.”; “II. To put to practical or effective use; to make use of,
employ, esp. habitually.”). We will not import a possible connotation of “use” into its
denotation absent an explicit indication of congressional intent.
6 We likewise note that in one of the few cases discussing the business
component test, the taxpayer was not required to demonstrate that it habitually sold
products of the same type as the one at issue for meeting the business component test
of section 41(d)(2)(B)(i). See Trinity Indus., Inc. v. United States, 691 F. Supp. 2d 688,
691 (N.D. Tex. 2010), aff’d in part, vacated and remanded in part on other grounds,
757 F.3d 400 (5th Cir. 2014). (Trinity Industries, Inc., designed and built prototype
“first in class” ships according to customer contracts. It hoped to build and sell
duplicates, but it had no guarantee of realizing that hope.)
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[*12] Respondent has pointed to no evidence tending to show that the
Harpers’ claimed credit for increasing research activities did not satisfy
the business component test of section 41(d)(1) and (2).
Conclusion
We will deny Respondent’s Motion for Partial Summary
Judgment, as we do not find grounds for ruling as a matter of law that
the HCC projects at issue failed the business component test of section
41(d).
We have considered all other arguments made by the parties and,
to the extent not discussed above, we find those arguments to be
irrelevant, moot, or without merit. To reflect the foregoing,
An appropriate order will be issued.