The internal use software and the dual-function software provisions appear to be the most useful to review.
Under IRC [section]41(d)(4)(E), no research credit is allowed for internal use software development, except as provided by regulations.
For the innovativeness test, the court believed that quantification would not be materially helpful; based on House and Senate reports, it concluded that "the extent of the improvements required by Congress with respect to internal use software
is much greater than that required in other fields."
The proposed legislation would provide exceptions for criminal offenses or internal use software
. The House report on this provision notes its belief that "the intellectual property rights of the developers and owners of computer programs should be respected."
The two plans are entitled "Research Tax Credit: Audit Plan for Examination of the Research Tax Credit" and "Research Tax Credit: Internal Use Software Audit Plan." TEI's written comments, which elaborate on issues discussed during a March 15 meeting between representatives of TEI's IRS Administrative Affairs Committee and the Internal Revenue Service, were submitted to David G.
The second plan addresses itself to software developed for the taxpayer's internal use, and is captioned "Research Tax Credit: Internal Use Software Audit Plan" (10/23/95).
In addition to setting forth the statutory requirements (and pertinent legislative history) in respect of internal-use software audit plan, the preamble to the internal use software audit plan should define precisely what is meant by internal-use software (through the use of examples).
We note that, in amending the research tax credit as part of the Tax Reform Act of 1986, Congress chose to exclude certain internal use software from the reach of the credit.
For the foregoing reasons, we recommend that Example (6) be revised to provide that the costs of developing internal use software will be qualified R&E expenditures where the activity undertaken to develop the software (without regard to whether it relates to management functions or techniques) is research.