H. R. 6353
IN THE HOUSE OF REPRESENTATIVES
August 2, 2012
Ms. Schwartz (for herself and Mr. Boustany) introduced the following bill; which was referred to the Committee on Ways and Means
To amend the Internal Revenue Code of 1986 to allow a deduction for patent box profit from the use of United States patents.
This Act may be cited as the
Manufacturing American Innovation Act
Deduction for patent box profits
Part VI of subchapter B of chapter 1 of the Internal Revenue Code of 1986 is amended by adding at the end the following new section:
Patent box profits
Allowance of deduction
If the taxpayer elects the application of this section, there shall be allowed as a deduction an amount equal to 71 percent of the lesser of—
the patent box profit of the taxpayer for the taxable year, or
taxable income (determined without regard to this section) for the taxable year.
Patent box profit
For purposes of this section—
Except as provided by paragraph (9), the term patent box profit means, with respect to a taxable year, IP profit multiplied by the ratio—
the numerator of which is the 5-year research and development expenditures of the taxpayer with respect to the taxable year, and
the denominator of which is the 5-year total costs of the taxpayer with respect to the taxable year.
The term IP profit means the excess (if any) of—
patent gross receipts, over
the sum of—
the taxpayer’s cost of goods sold for the taxable year that are properly allocable to patent gross receipts,
other expenses, losses, or deductions (other than the deduction allowed under this section), which are properly allocable to patent gross receipts, as determined by the Secretary, plus
The term routine profit means—
the taxpayer’s cost of goods sold for the taxable year properly allocable to patent gross receipts reduced by the sum of cost of raw materials, cost of items purchased for resale, and amounts incurred for intangible property rights (including royalties and amortization), multiplied by
The Secretary shall prescribe rules for the proper allocation of items described in this paragraph for purposes of determining patent box profit. Such rules shall provide for the proper allocation of items whether or not such items are directly allocable to patent gross receipts.
Determination of costs
Cost shall be determined in accordance with the principles of sections 263A and 471, as provided for by the Secretary under regulations or other guidance.
Items brought into United States
For purposes of determining cost of goods sold, any item or service brought into the United States shall be treated as acquired by purchase, and its cost shall be treated as not less than its value immediately after it entered the United States. A similar rule shall apply in determining the adjusted basis of leased or rented property where the lease or rental gives rise to patent gross receipts.
Exports for further manufacture
In the case of any property described in clause (ii) that had been exported by the taxpayer for further manufacture, the increase in cost or adjusted basis under subparagraph (A) shall not exceed the difference between the value of the property when exported and the value of the property when brought back into the United States after the further manufacture.
5-year research and development expenditures
The term 5-year research and development expenditures means with respect to a taxable year the research and development expenditures paid or incurred by the taxpayer for the performance of research and development in the United States for which a deduction is allowed under subsection (a) or (b) of section 174 (determined without regard to section 41) for the 5-taxable-year period ending with the taxable year.
5-year total costs
The term 5-year total costs means with respect to a taxable year the excess of—
all costs paid or incurred by the taxpayer for the 5-taxable year period ending with such taxable year, over
the sum of—
the taxpayer’s cost of goods sold for such 5-taxable year period,
interest paid or accrued for such 5-taxable year period,
taxes paid or accrued for such 5-taxable year period, and
the net gain or loss for such 5-taxable year period from the sale or exchange of capital assets.
Rules relating to 5-year period
For purposes of this paragraph—
Not in existence for entire 5-year period
If the taxpayer was not in existence for the entire 5-year period referred to in subparagraphs (B) and (C), such subparagraphs shall be applied on the basis of the period during which such taxpayer was in existence.
Treatment of predecessors
Any reference in this paragraph to a taxpayer shall include a reference to any predecessor of such taxpayer.
Patent gross receipts
The term patent gross receipts means gross receipts of the taxpayer for the taxable year which are derived from the sale, lease, license, or other disposition of property in the ordinary course of a United States trade or business of the taxpayer in which qualified patent property is used directly or indirectly if more than a substantial percentage of the value of the such property is derived from the use of one or more qualified patents.
For purposes of this paragraph—
Compensation for infringement of a patent
The term patent gross receipts includes compensation for the infringement of a qualified patent to the extent the compensation is included in gross income of the taxpayer.
Sales to related persons
The term patent gross receipts shall not include any gross receipts of the taxpayer derived from sales of a qualified patent to a related person.
Under regulations or other guidance prescribed by the Secretary, such term shall not include any transaction with a related person which the Secretary determines abuses the purposes of this paragraph.
A person shall be treated as related to another person if such persons are treated as a single employer under subsection (a) or (b) of section 52 or subsection (m) or (o) of section 414, except that determinations under subsections (a) and (b) of section 52 shall be made without regard to section 1563(b).
Qualified patent property
The term qualified patent property means property which is—
a qualified patent, or
a product which incorporates a qualified patent or patents if more than a substantial percentage of the value of the product is derived from the use of one or more qualified patents.
The term qualified patent means a patent—
issued or extended by, or for which an application is pending before, the United States Patent and Trademark Office under title 35, United States Code,
with respect to which—
the taxpayer is the patent owner or the holder of an exclusive license to exploit the patent within a specified territory or for a specific purpose,
the taxpayer is actively involved in the decisionmaking connected with exploiting the patent, and
either the taxpayer or a member of the affiliated group of which the taxpayer is a member performed significant activity to develop the patented invention, its application, or a product incorporating the patented invention, and
for any taxable year beginning after the third taxable year beginning after the date of the enactment of this section, more than a substantial percentage of the activity to develop the patented invention or its application occurs in the United States.
Special rule for certain foreign patents
If the taxpayer—
is the patent owner or the holder of an exclusive license to exploit a patent which meets the requirements of subparagraph (A),
is issued or extended by a foreign country a patent for the same or substantially similar invention or application as the patent described in clause (i), and
is the owner of, or the holder of an exclusive license to exploit, the foreign patent described in clause (ii),
Special rules relating to licensing
In the case of a license of a patent, the patent shall not be treated as a qualified patent unless the licensor—
certifies to the licensee (in such form and manner as the Secretary may prescribe) that the patent is a qualified patent, and
provides to the licensee such information as the Secretary may require to determine whether the patent is a qualified patent.
Royalties, profit shares, and similar amounts received from the license or use of a qualified patent shall be treated as qualified patent gross receipts if the licensor meets the requirements of clause (i) and has developed or has acquired and added substantial value to the qualified patent, but only so long as the licensor is regularly engaged in the development and addition of substantial value to property of such kind.
Special rules relating to patent claims denied or ruled invalid
there is a recapture event with respect to any claim contained in a qualified patent, and
a deduction was allowed under subsection (a) for any taxable year with respect to such claim,
For purposes of clause (i), the term recapture event means, with respect to a claim that—
the patent does not issue on the basis (in whole or in part) of such claim, or
such claim is determined by the United States Patent and Trademark Office or a court of competent jurisdiction not to be valid.
For purposes of clause (i), the recapture amount with respect to a claim is the sum of—
the excess of the amount by which—
the total tax (determined without regard to subsection (a)) that would be shown on returns of tax of the taxpayer for all taxable years for which a deduction was allowed under subsection (a) with respect to such claim, exceeds
the total tax shown on all returns of tax of the taxpayer for all taxable years for which a deduction was allowed under subsection (a) with respect to such claim, determined with regard to subsection (a), plus
in the case of a recapture event described in clause (ii)(I), interest at the underpayment rate established under section 6621 on the amount determined under subclause (I) for each prior taxable year for the period beginning on the due date for filing the return for the prior taxable year involved.
Alternative determination of patent box profit
In accordance with regulations or other guidance provided by the Secretary, the taxpayer may elect to determine patent box profit as the amount equal to the net income derived from patent gross receipts related to exploitation of the qualified patent that would be received for the taxable year if all transactions of the taxpayer for the taxable year were conducted at arm’s length under the principles of section 482.
An election under subparagraph (A) for a taxable year shall apply with respect to all qualified patents. Such election, once made, may be revoked only with the consent of the Secretary.
Alternative method for certain taxpayers
In the case of a taxpayer which meets the $5,000,000 gross receipts test of section 448(c) for the taxable year, patent box profit shall be the greater of the amount determined under subsection (b) or 50 percent of IP profit.
Definitions and special rules
For purposes of this section—
Application of section to pass-thru entities
Partnerships and S corporations
In the case of a partnership or S corporation—
the deduction under subsection (a) shall be determined at the partner or shareholder level,
except as provided in clause (i), all determinations relating to receipts, expenses, and whether a patent is a qualified patent shall be made at the entity level, and
each partner or shareholder shall take into account such person’s allocable share of each item described in clause (i) or (ii) of subsection (b)(2)(A) (determined without regard to whether the items described in such clause (i) exceed the items described in such clause (ii)).
Trusts and estates
In the case of a trust or estate—
the items referred to in subparagraph (A)(ii) (as determined therein) shall be apportioned between the beneficiaries and the fiduciary (and among the beneficiaries) under regulations prescribed by the Secretary, and
for purposes of paragraph (2), adjusted gross income of the trust or estate shall be determined as provided in section 67(e) with the adjustments described in such paragraph.
Application to individuals
In the case of an individual, subsection (a)(2) shall
be applied by substituting
adjusted gross income for
taxable income. For purposes of the preceding sentence, adjusted
gross income shall be determined—
after application of sections 86, 135, 137, 199, 219, 221, 222, and 469, and
without regard to this section.
Agricultural and horticultural cooperatives
Deduction allowed to patrons
Any person who receives a qualified payment from a specified agricultural or horticultural cooperative shall be allowed for the taxable year in which such payment is received a deduction under subsection (a) equal to the portion of the deduction allowed under subsection (a) to such cooperative which is—
allowed with respect to the portion of the patent box profit to which such payment is attributable, and
identified by such cooperative in a written notice mailed to such person during the payment period described in section 1382(d).
Cooperative denied deduction for portion of qualified payments
The taxable income of a specified agricultural or horticultural cooperative shall not be reduced under section 1382 by reason of that portion of any qualified payment as does not exceed the deduction allowable under clause (i) with respect to such payment.
Taxable income of cooperatives determined without regard to certain deductions
For purposes of this section, the taxable income of a specified agricultural or horticultural cooperative shall be computed without regard to any deduction allowable under subsection (b) or (c) of section 1382 (relating to patronage dividends, per-unit retain allocations, and nonpatronage distributions).
Special rule for marketing cooperatives
For purposes of this section, a specified agricultural or horticultural cooperative described in clause (vi)(II) shall be treated as having manufactured, produced, grown, or extracted in whole or significant part any qualifying production property marketed by the organization which its patrons have so manufactured, produced, grown, or extracted.
For purposes of this paragraph, the term qualified payment means, with respect to any person, any amount which—
is described in paragraph (1) or (3) of section 1385(a),
is received by such person from a specified agricultural or horticultural cooperative, and
is attributable to patent box profits with respect to which a deduction is allowed to such cooperative under subsection (a).
Specified agricultural or horticultural cooperative
For purposes of this paragraph, the term specified agricultural or horticultural cooperative means an organization to which part I of subchapter T applies which is the owner of, or theholder of an exclusive license to exploit, a qualified patent.
The Secretary may prescribe rules requiring or restricting the allocation of items under this paragraph and may prescribe such reporting requirements as the Secretary determines appropriate.
Special rule for affiliated groups
All members of an expanded affiliated group shall be treated as a single corporation for purposes of this section.
Expanded affiliated group
For purposes of this section, the term expanded affiliated group means an affiliated group as defined in section 1504(a), determined—
more than 50 percent for
at least 80
percent each place it appears, and
without regard to paragraphs (2) and (4) of section 1504(b).
Allocation of deduction
Except as provided in regulations, the deduction under subsection (a) shall be allocated among the members of the expanded affiliated group in proportion to each member’s respective amount (if any) of patent box profit.
Coordination with minimum tax
For purposes of determining alternative minimum taxable income under section 55—
patent box profit shall be determined without regard to any adjustments under sections 56 through 59, and
in the case of a
corporation, subsection (a)(2) shall be applied by substituting
alternative minimum taxable income for
Coordination with domestic production activities deduction
This section shall be applied without regard to section 199.
Unrelated business taxable income
For purposes of determining the tax
imposed by section 511, subsection (a)(2) shall be applied by substituting
unrelated business taxable income for
Acquisitions and dispositions
The Secretary shall provide for the application of this subsection in cases where the taxpayer acquires, or disposes of, the major portion of a trade or business or the major portion of a separate unit of a trade or business during the taxable year.
The term United States includes the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
The taxpayer may make an election to have this section apply for any taxable year.
In the case of a pass-thru entity, the election shall be made at the partner or shareholder level.
An election under paragraph (1), once made, may be revoked only with the consent of the Secretary.
The Secretary shall prescribe such regulations as may be appropriate to carry out this section, including regulations which prevent the abuse of the purposes of this section.
Section 56(d)(1)(A) of such Code is amended
deduction under section 199 both places it appears
deductions under sections 199 and 200.
Section 56(g)(4)(C) of such Code is amended by adding at the end the following new clause:
Deduction for domestic business income
Clause (i) shall not apply to any amount allowable as a deduction under section 200.
The following provisions of such Code are
each amended by inserting
Section 222 (b)(2)(C)(i).
163(j)(6)(A)(i) of such Code is amended by striking
and at the
end of subclause (III) and by inserting after subclause (IV) the following new
any deduction allowable under section 200, and
170(b)(2)(C) of such Code is amended by striking
and at the end
of clause (iv), by striking the period at the end of clause (v) and inserting
, and, and by inserting after clause (v) the following new
Section 172(d) of such Code is amended by adding at the end the following new paragraph:
Domestic business income
The deduction under section 200 shall not be allowed.
Section 199(c) of such Code is amended by adding at the end the following new paragraph:
Coordination with patent box profits deduction
Qualified production activities income, taxable income, and domestic production gross receipts shall be determined without regard to section 200.
199(d)(2)(B) of such Code is amended by striking
this section and section 200.
Section 613(a) of such Code is amended by
deduction under section 199 and inserting
deductions under sections 199 and 200.
Section 613A(d)(1) of such Code is amended by redesignating subparagraphs (C), (D), and (E) as subparagraphs (D), (E), and (F), respectively, and by inserting after subparagraph (B) the following new subparagraph:
any deduction allowable under section 200,
of such Code is amended by striking
and at the end of paragraph
(16), by redesignating paragraph (17) as paragraph (18), and by inserting after
paragraph (16) the following new paragraph:
the deduction provided by section 200 shall not be allowed; and
The table of sections for part VI of subchapter B of chapter 1 of such Code is amended by adding at the end the following new item:
Sec. 200. Patent box profits.
The amendments made by this section shall apply to taxable years beginning after the date of the enactment of this Act.