This document summarizes a webinar about how government contracts can qualify for the Research and Development tax credit. It discusses that government contracts are often overlooked as eligible expenses but can qualify if they meet certain criteria. Specifically, contracts must involve technological uncertainty and experimentation through a qualified research process. Additionally, the company must retain intellectual property rights and bear some financial risk in the research for the contract to qualify rather than be considered "funded research". Different types of government contracts have varying likelihood of qualifying based on these criteria.
Encoursa Webinar: How Government Contractors Qualify for the R&D Tax Credit
1. HOW GOVERNMENT CONTRACTS QUALIFY FOR THE R&D
TAX CREDIT
Presented Left Brain Professionals and Hull & Knarr
2. Host: Liz Briggson, CPA
Connect on LinkedIn:
https://www.linkedin.com/in/lizbriggso
cpa/
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3. GOVERNMENT CONTRACTS & ACCOUNTING EXPERT
Email: robert@leftbrainpro.com
Phone: (614) 556-4415
LinkedIn: https://www.linkedin.com/in/rjones330/
Website: www.leftbrainpro.com/
Robert Jones CPA, CPCM, NCMA Fellow
Professional Background
Masters in Accountancy – College of Charleston
Business Management , Compliance, Operations
Controller
Defense Contracts Manager
Instructor and Speaker
5. LEARNING OBJECTIVES: TODAY’S PRESENTERS:
Carlos Freitas
Partner
Hull & Knarr LLP
cfreitas@hullandknarr.com
(317) 889-2134
Robert Jones
President & Principal
Left Brain Professionals
Robert@leftbrainpro.com
(614) 556-4415 X101
• Describe R&D Tax Credits
• Define includable expenses
• List the criteria to qualify for R&D Tax Credits
• Describe the impact of contract type
6. Employs Engineering Approach led by degreed engineers
Who is
Specializes in R&D Tax Credits and other local incentives
Can work directly with a company, with accountants or
accounting firms, VC firms or other strategic advisors
NOT an accounting firm
“The continuity H&K provides has
enabled us to benefit from the R&E
credit in a painless manner, in large
part thanks to the relationships
they have developed with our
engineers.“
― Tiffany Pace
Controller
“Working with H&K has had a
positive impact on our business.
We get to focus on running our
business while H&K works hard to
maximize our R&D tax credits.“
“H&K’s knowledge of the SBIR
program and governmental
structures helped us realize credits
we would have otherwise forfeited;
and they’re helping us maximize our
credit potential for the future.“
― Lisa Ferris
COO
― Chris Ludlow
VP of Engineering
7. Who is
A boutique accounting firm specializing
in government contract accounting.
A small business dedicated to helping
other small businesses.
We provide solutions that address
inadequacies or noncompliance and
bring about change to help your
company grow and prosper.
Our practice areas include accounting
system design and implementation,
audit support, accounting support
services, and training.
8. (I ho
communication
Hull & Knarr
Left Brain
Professionals
Accounting Firm
External CPA
Govt Contractor
(CFO/VP
Finance/Controller)
9. What do you believe is the main reason why most providers don’t feel
comfortable including government contracts in the R&D credit
calculation?
a. Didn’t know they could be included.
b. Tax code states, “funded research is excluded”.
c. Was told they couldn’t be included and never looked into it.
d. It’s too complicated.
Question
11. 30+ YEARS
WHAT IS THE R&D CREDIT?
WHAT DOES IT MEAN FOR A COMPANY?
Tax Credits
FINANCIAL
REWARD
30+ YEARS OFFSETS INCOME
OR PAYROLL TAX
Govt
Awards IR&D
TAX LIABILITY CASH FLOW
12. INDICATORS OF QUALIFIED RESEARCH:
Qualification for the R&D Credit depends on many factors. Typical
indicators of qualified research activities includes:
Awarded government R&D projects from: SBIR, STTR, OTA, etc.
Manufactures products with a highly automated process
Develops software using new algorithms, techniques or architectures
Degreed engineers or scientists on staff
Patentable products or production methods
13. Which is an indicator of qualified research activities?
a. Degreed engineers or scientists on staff.
b. Patentable products or production methods.
c. Manufactures products with a highly automated process.
d. All the above.
Question
15. SUBS AND CONSULTANTSMATERIALSWAGES
Qualified
Generally the largest component of
eligible R&D expenses. Wages can be
for direct R&D, direct supervision of
R&D, or direct support of R&D:
Principal Investigators
Engineers
Managers with technical input
Technicians
Production/Assembly personnel
Materials used in the R&D process can
be a significant contributor to the Credit:
Prototypes, including experimental
deliverables if first of a generation
Materials used in Process
development
Pilot Runs
Software used in R&D
Commonly used to temporarily add
capacity and complement internal
capabilities. Includable at 65% of
incurred costs:
Testing services
Outsourced R&D
Software development
16. Qualified R&D Expenses include all the following except-
a. Wages
b. Facilities
c. Materials
d. Subs and Consultants
Question
18. Criteria for
FINANCIAL RISK
Does the contract state that payments
are contingent upon success?
Payment upon milestones or other
deliverables
Payment is not on a reimbursement
basis
FOUR-PART TEST
Congress established a four-part test
that defines qualified research activities
associated with new and improved
product and process development to
exclude routine engineering :
Technological in Nature
Technological Uncertainty
Process of Experimentation
Permitted Purpose
RIGHTS
Does the contract state that AT LEAST
some of the intellectual property is
retained?
The SBIR/STTR program is designed in
a way that allows for companies to
retain some of the IP.
19. Treasury Regulation §1.41-4A(d) – (3) Research in which the taxpayer retains substantial rights – (i)In general. …A taxpayer
does not retain substantial rights in the research if the taxpayer must pay for the right to use the results of the research…
CASE LAW
Treasury Regulation §1.41-4A(d)
– (1) In general. Research does
not constitute qualified research
to the extent it is funded by any
grant, contract, or otherwise by
another person (including any
governmental entity)… Amounts
payable under any agreement
that are contingent on the success
of the research and thus
considered to be paid for the
product or result of the research
are not treated as funding…
Treasury Regulation §1.41-4A(d)
– (2) Research in which taxpayer
retains no rights. If a taxpayer …
retains no substantial rights in
research under the agreement
providing for the research, the
research is treated as fully
funded…
Treasury Regulation §1.41-4A(d)
– (3) Research in which the
taxpayer retains substantial
rights – (i)In general. …A taxpayer
does not retain substantial rights
in the research if the taxpayer
must pay for the right to use the
results of the research…
The regulations under IRC section 1.41-4(c) include the excluded activities for qualified research. Per
1.41-4(c)(9) – Research Funded – Qualified research does not include any research to the extent funded
by any grant, contract, or otherwise by another person (or government entity).
20. Fairchild Case
Lockheed Martin Case
CASE LAW
KEY TAKEAWAY: Funded Research is only excluded if a company both gives away the IP and
gets paid even if they don’t successfully meet the milestones (for example a LoE type of
contract). Otherwise, includability comes down to Right Retention and Financial Risk.
Fairchild Industries, Inc. v US
(US Court of Appeals, 1995)
The court held that whether research is funded
depends on “who bears the research costs
upon failure, not on whether the researcher is
likely to succeed in performing the project”.
Lockheed Martin v US (Fed. Cir., 2000)
The government argued that a taxpayer only
retains substantial rights if the taxpayer
retains the right to exclude others from its
research and in which other parties do not
also have the right to use or disclose the
taxpayer’s research. The court of appeals held
that the right to use the research without
paying the customer, even if not an exclusive
right, is a substantial right. Therefore, the
research credits were allowed because
research was not funded.
21. Includability comes down to-
a. Right Retention
b. Financial Risk
c. Who pays for the work
d. Both A & B
Question
23. EXCLUSION FOR FUNDED RESEARCH:
In practice, contract types can indicate how likely they are to qualify:
T&M
FFP (LOE)
CPFF/IF/AF
Commercial
Unbilled Direct
FFP
IR&D
B&P
Overruns
Low
Medium
High
24. Some contract types are more likely to qualify for R&D credit than
others?
a. True
b. False
Question
25. CORPORATE OFFICE
300 S. Madison Ave., Suite 300
Greenwood, IN 46142
Phone: 317.889.8494
www.hullandknarr.com
Left Brain
Professionals Inc.
@LeftBrainPro
@LeftBrainPro
Left Brain Pro
LeftBrainPro
www.LeftBrainPro.com
Support@LeftBrainPro.com
(614) 556-4415
26. Thanks for attending today’s event!
Encoursa is committed to helping accounting and
finance professionals develop personally and
professionally through continuing education.
Join us for Left Brain Professionals’ next event on
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Laying the Foundation for GovCon Accounting
Fundamentals of Indirect Rates
Advanced Indirect Rates
Notas del editor
National Contract Management Association
Many misconceptions associated with the research tax credit prevent companies from maximizing their benefit. One of the biggest misconceptions is government contracts do not qualify for the research tax credit
IMPROVE CASH FLOW
Recoup funds from previous research programs to fuel new initiatives, reduce estimated tax payments, and minimize the amount of cash leaving your business each quarter.
STAY FOCUSED ON R&D
Your technical team should not spend time determining which of their activities are qualified. We will quickly make those determinations so you can stay focused on making advancements in your field.
REDUCE EXPOSURE
Keeping your business innovative and ahead of the competition requires considerable investment. Smart companies use proven experts to recover these expenses and protect their claims.
ENGINEERING APPROACH:
Understand R&D processes
Accurately qualify R&D activities
Minimize time spent by clients qualifying R&D
Obtain documentation to substantiate claims
Maximize the footprint of qualified R&D activities
Bolster defense of R&D Credits before the IRS
Hull & Knarr and Left Brain Professionals are strategic advisors specializing in the R&D credit and government contract accounting. Government contracting is complex and we provide peace of mind and compliance for our government contractor clients while allowing their CPA firm and accountants to focus on what they do best.
Federal and State financial reward for companies that create or improve its:
Products
Technology & Techniques
Manufacturing Processes
Software
Amounts to approximately 12% of eligible R&D expenses incurred each year
Tax Credit is a dollar-for-dollar offset of tax (better return than a tax deduction)
Unused credits may used in the future for up to 20 years
For businesses within their first 5 years of revenue, the credits apply to payroll taxes
What does it mean for a company
Costs associated with Government contracts also qualify. Based on:
IRS Regulations – Treasury Regulation §1.41-4A
Court Cases – Lockheed Martin v. US and Fairchild Industries v. US
The R&D Credit is a specialized part of the tax code that is rooted in engineering
While the calculation is filed on a tax form, engineers can speak the same language as technical staff to determine whether activities meet the necessary criteria for qualification.
This leads to ability to qualify more activities with certainty, translating into a higher credit, which reduces tax liability and increases cash flow
Operate in a manufacturing industry – electronics and components, chemicals, specialty materials, etc.
Operates in industry where prototyping is common:
Medical
Aerospace
Robotics
Defense
Applications
APIs
Embedded software
Cloud computing
Cyber security
Large, custom ERP implementations/development
d. All the above
B. Facilities
One of the most common misconceptions within the R&D Credit is the concept that most believe government contracts aren’t includable in the credit calculation. The reason for this is …
While this does not itself provide a definition for funded research, the following Treasury Regulations (official IRS guidance) provide clarification on identifying critical contract characteristics.
Given these regulations, the critical contract characteristics become rights retention clauses and payments contingent upon success.
Fairchild Industries, Inc. v US (US Court of Appeals, 1995)
Funded Issues: Financial Risk
The appellate court held that research credits were eligible because research was not funded – the total system responsibility was on Fairchild to produce aircraft that met its customer’s requirements for a fixed price. The lower court argued that because progress payments were made to Fairchild before a working product was delivered, the research was funded to the extent it received payment under the contract. The Court of Appeals reversed that decision, determining that the progress payments from the government to Fairchild did not alter the provisions of the contract that put Fairchild at risk for the development. The fact that the taxpayer received advanced payments from the Air Force did not change the result because the payments were refundable if the project was not successful.
The court held that whether research is funded depends on “who bears the research costs upon failure, not on whether the researcher is likely to succeed in performing the project”.
Lockheed Martin v US (Fed. Cir., 2000)
Funded Issues: Substantial Rights
The government argued that a taxpayer only retains substantial rights if the taxpayer retains the right to exclude others from its research and in which other parties do not also have the right to use or disclose the taxpayer’s research. The court of appeals held that the right to use the research without paying the customer, even if not an exclusive right, is a substantial right. Therefore, the research credits were allowed because research was not funded.