In United States v. McFerrin, 570 F.3d 672 (5th Cir. 2009), the Fifth Circuit vacated the opinion of the lower court which concluded that the taxpayer was not entitled to the research tax credit claimed. McFerrin, a prominent chemical engineer, owns several chemical companies. McFerrin hired a tax consulting firm to prepare a research tax credit study for his companies. McFerrin filed an amended tax return to claim a research tax credit based on the study. The IRS issued a refund and, later, brought suit to recover the refund. The District Court sided with the government. It concluded that McFerrin’s research did not “discover” new information and McFerrin’s evidence supporting its claim, which consisted primarily of employee testimony, was not sufficient. The Fifth Circuit disagreed with both of these conclusions as they are based on incorrect law. The Fifth Circuit remanded the case back to the District Court with instructions for the lower court to consider employee testimony to determine how much, if not all, of the research tax credit claim is allowable.

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