Coal-site testing is mining exploration, not qualified research

Plain-English summary

A corporation investigated whether coal beneath its land could support a proposed processing plant. Contractors performed geological mapping, core drilling, seismic surveys, and related site-selection work. Chief Counsel advised that each activity must be judged by its own purpose, even if it formed part of a broader technology-development project. Because the work helped determine the location, extent, or quality of mineral deposits, section 174(d) treated the costs as mining exploration expenses rather than deductible research expenses under section 174(a). The corporation could deduct them under section 617 only if it made the required election, and the notice of deficiency should not grant that deduction without an election. The costs also failed the section 41 research-credit test because they were not research or experimental expenditures under section 174.

Ruling snapshot

• Question: Could drilling, geological, and seismic costs for a proposed coal-processing project qualify for the section 174 deduction and section 41 research credit?
• Outcome: advice given, the costs were mining exploration expenses potentially deductible by election under section 617, but not section 174 research expenses or section 41 qualified research
• Key authorities: IRC §§ 41, 174, 617, 6501, 6503, 6511; Treas. Reg. §§ 1.174-2 and 1.617-1

Full text (IRS public release)

~~~
Office of Chief Counsel
Internal Revenue Service
memorandum
Number: 201718011
Release Date: 5/5/2017
CC:PSI:B06:
TL-N-1179-16

        UILC:      41.00-00, 174.00-00, 617.00-00

         date:     December 01, 2016

             to:   Keith G. Medleau
                   Senior Counsel (Seattle, Group 2)
                   (Large Business & International)

                   Joseph R. Worst
                   Attorney, (Seattle, Group 2)
                   (Large Business & International)

         from:     Peter C. Friedman
                   Senior Technician Reviewer, Branch 6
                   Office of Associate Chief Counsel
                   (Passthroughs & Special Industries)

subject: Request for Advice-------------------------------------------

       This Chief Counsel Advice responds to your request for assistance. This advice may not
       be used or cited as precedent.

       LEGEND

       Taxpayer        =       -----------------------------------

       Act             =       ----------------------------------------------------------------

       Process         =       -------------------------------------------------------

       Years           =      ----------------

       Year 1          =      -------

       Year 2          =      -------

TL-N-1179-16 2

Year 3 = -------

Year 4 = -------

Date 1 = -------------------

Date 2 = -------------------

Date 3 = --------------------------

Date 4 = ----------------------

Oxidant = -----------------------

Laboratory = -----------------------------------------------------------------

Pilot Project = ------------------------------------------------

Technology = -----------------------------------

Conversion = ---------------------------

Accounting Firm = -----------

LLC = -----------------------------------

Company 1 = ---------------------------

Company 2 = ----------------------------------------------------

Company 3 = ----------------------------------------------

Company 4 = -----------------------------------

Company 5 = ------------------------------------

a% = ------

$A = ----------------

$B = ----------------

$C = ----------------

$D = -----------------
TL-N-1179-16 3

$E$ = -----------------

$F = --------------

ISSUES

     1. Whether certain expenditures in tax Years 1, 2 and 3 incurred by Taxpayer in
        connection with a potential Process plant qualify as research and
        experimental expenditures deductible under § 174(a), or are precluded from
        being deductible under § 174(d) as exploration expenditures and instead
        deductible under § 617.

     2. Whether the expenditures qualify for the § 41 research credit.

CONCLUSIONS

     1. The expenditures incurred by Taxpayer are exploration expenditures under
        § 174(d) and, thus, are not deductible as research and experimental
        expenditures under § 174(a). The exploration expenditures are deductible
        under § 617 if Taxpayer makes an election pursuant to § 617(a)(2) and the
        regulations thereunder.

     2. The expenditures do not qualify for the § 41 research credit.

FACTS

Taxpayer is a corporation that was created by the Act. Taxpayer owns land under
which lie coal deposits. According to Taxpayer’s protest, these coal deposits are
located ----------------------------------------------------------------------------------------------------------

In Years, Taxpayer began looking into the potential development of a Process plant to
extract the coal from its land. Process is --------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------

In Year 1, Taxpayer teamed up with Laboratory, a government research agency, to
assist with this endeavor. The Laboratory Statement of Work (SOW) included three
TL-N-1179-16 4

tasks: (1) site selection, site characterization, preliminary environmental hazard
identification, assessment, and recommendations; (2) site development planning; and
(3) project management activities. The SOW also stated that successful completion of
the first two tasks would contribute to Taxpayer’s ability to successfully field a test burn
and start toward Pilot Project, and assist in the engineering design and execution of
Process pilot.

On Date 1, Taxpayer created a disregarded entity, LLC, which then entered into a
partnership with Company 1. Company 1 is a Process developer and holds the certain
geographical rights to the Company 2 Technology under license from Company 2. The
Company 2 Technology is described on Company 2’s website as the “------------------------
----------------------------------------------------------------” The purpose of the partnership was
to carry out the Process project.

Taxpayer also contracted with two other parties regarding the potential Pilot plant. On
Date 2, Taxpayer contracted with Company 3 as a consultant for the Process project.
The contract provides for Company 3 consulting services involving the exploration and
development of coal resources on Taxpayer’s land. Taxpayer’s protest notes that
Company 3 also conducted a geological mapping project, a two-phase core-drilling
program in Years 2 and 3, and a 2D seismic survey in Years 3 and 4.

Taxpayer also entered into a contract with Company 4 on Date 3, for Company 4 to do
geophysical surveys. According to Taxpayer’s protest, Company 4 also conducted
seismic testing in the bores drilled by Company 3.

Neither the Company 4 nor Company 3 contracts include any language or provision
regarding Process, research Company 4 or Company 3 is to conduct, nor alternatives to
consider to resolve any uncertainties with respect to the Process project.

Taxpayer’s expenses relating to the Company 3 and Company 4 contracts make up
about a% of the total contract expenses Taxpayer incurred in tax Years 2,3 and 4 all of
which Taxpayer considers research and experimental expenditures under § 174 and
qualified research under § 41.1 Taxpayer claimed § 174 deductions for Process related
expenditures in the amounts of $A, $B, and $C on its tax returns for the Years 2, and 4,
respectively. Taxpayer claimed § 41 research credits in the amounts of $D and $E on
its Year 2, 3 and 4 tax returns, respectively.

Taxpayer hired Accounting Firm to analyze its costs related to the Process project to
determine their eligibility for § 41 research credits and § 174 research and experimental
expenditure deductions. As part of Accounting Firm’s analysis, Research Tax Credit
Study Project Questionnaire and Contract Research Analysis forms were completed for

1
To the extent Taxpayer is allowed a research credit under I.R.C. § 41, research expenses cannot be
deducted under § 174. I.R.C. § 280C(c)(1).
TL-N-1179-16 5

Years 2 and 3. Accounting Firm concluded that Taxpayer’s costs were more likely than
not eligible for both §§ 41 and 174 treatment.

On Date 4, Company 2 provided a recent update regarding the status of the Process
project in a memorandum that gives the results of the site selection phase of the project.
The memo goes in depth about the site selection process, which focused on the
geology, hydrology, and rock mechanics assessment of the target Pilot area. ------------
of the memo states that the site-selection process determination by Company 2 was
based on whether a candidate site was suitable for the application of Technology and
for the potential development of a commercial scale Process plant.

Law and Analysis

Issue 1: Whether certain expenditures in tax years 2, 3 and 4 incurred by
Taxpayer in connection with a potential Process plant qualify as research and
experimental expenditures deductible under § 174(a), or are precluded from such
deduction under § 174(d) as exploration expenditures (and instead deductible
under § 617 if Taxpayer so elects).

Section 174(a) provides that a taxpayer may treat research or experimental
expenditures paid or incurred by the taxpayer during the taxable year in connection with
its trade or business as a deduction rather than chargeable to a capital account.

Treas. Reg. § 1.174-2(a)(1) provides that the term “research or experimental
expenditures,” as used in § 174, means expenditures incurred in connection with the
taxpayer’s trade or business which represent research and experimental costs in the
experimental or laboratory sense. The term generally includes all such costs incident to
the development or improvement of a product. Expenditures represent research and
experimental 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. Uncertainty exists if the information
available to the taxpayer does not establish the capability or method for developing or
improving the product or the appropriate design of the product. Whether expenditures
qualify as research or experimental expenditures depends on the nature of the activity
to which the expenditures relate, not the nature of the product or improvement being
developed or the level of technological advancement the product or improvement
represents.

Treas. Reg. § 1.174-2(a)(2) provides that for purposes of Treas. Reg. § 1.174-2, the
term “product” includes any pilot model, process, formula, invention, technique, patent,
or similar property, and includes products to be used by the taxpayer in its trade or
business as well as products to be held for sale, lease, or license.

Treas. Reg. § 1.174-2(a)(8) provides, in part, that the provisions of Treas. Reg. § 1.174-
2 apply not only to costs paid or incurred by the taxpayer for research or
TL-N-1179-16 6

experimentation undertaken directly by the taxpayer but also to expenditures paid or
incurred for research or experimentation carried on in its behalf by another person or
organization.

Section 174(d), however, provides that § 174 shall not apply to any expenditure paid or
incurred for the purpose of ascertaining the existence, location, extent, or quality of any
deposit of ore or other mineral (including oil and gas). Treas. Reg. § 1.174-2(c) repeats
the language of § 174(d) and cross-references §§ 617 and 263.

There are at least four sub-issues related to the primary issue above: (a) whether the
activities of Company 3 and Company 4 should be viewed as independent activities or
as part of Taxpayer’s overall Process project in determining whether the expenditures
are exploration expenditures under § 174(d); (b) whether Taxpayer’s secondary
purpose of collecting data to refine its knowledge as to the extent or quality of known
coal deposits causes its costs to be exploration expenditures under § 174(d); (c) if
Taxpayer’s contract costs to Company 3 and Company 4 are exploration costs under
§ 174(d), whether they are deductible under § 617; and (e) if so, whether the statutory
notice of deficiency (SNOD) adjustments should include such deductions absent a
§ 617 election by Taxpayer.

We now address those sub-issues as follows:

   (a) Whether the activities of Company 3 and Company 4 should be viewed
   as independent activities or as part of Taxpayer’s overall Process project in
   determining whether the expenditures are exploration expenditures under
   § 174(d).

Taxpayer claims that it cannot separate its exploration costs from its overall project
because the two are intertwined. In other words, Taxpayer argues that it only
contracted with Company 3 and Company 4 to conduct the drilling and surveying in
connection with Taxpayer’s Process project. The logic of Taxpayer’s argument seems
to be that since the goal of the Process project was to develop a commercial Process
plant and to improve the Process process, all steps Taxpayer took to accomplish those
goals are incidental to such development or improvement. As such, it asserts that
contract expenses paid to Company 3 and Company 4 are deductible as research and
experimental expenditures under § 174(a).

However, this argument is refuted by Rev. Ruls. 74-67 and 75-122. Rev. Rul. 74-67,
1974-1 C.B. 63, involved a taxpayer engaged primarily in the business of exploring,
developing, and producing minerals. The taxpayer began a project in which it
delineated the size and grade of the ore body by using conventional drilling methods
and perfecting a new hydraulic mining method. The project included the drilling of holes
for three purposes: (1) for maximum coverage of geologic information; (2) for testing the
new hydraulic mining method; and (3) for optimum production with the new mining
method. The Service held the costs incurred for the first purpose were mining
TL-N-1179-16 7

exploration expenditures subject to the provisions of § 6152 or 617, while the costs
incurred for the second and third purposes were research and experimental
expenditures subject to § 174.

In Rev. Rul. 75-122, 1975-1 C.B. 87, the Service considered the costs incurred by a
mining company: (1) in determining the location and quality of a mineral deposit that
previously had not been commercially exploited; (2) in driving shafts, drifts, cross-cuts,
and for other production facilities that were not limited to use in developing prototype
mining equipment and perfecting a new metallurgical process; and (3) at the research
laboratory that were directly related to the development of prototype mining equipment
and the perfecting of new metallurgical processes. The Service held the first type of
costs were exploration expenditures under § 617, the second type of costs were mine
development expenses under § 616, and the third type of costs were research or
experimental expenditures within the meaning of Treas. Reg. § 1.174-2(a)(1) and may
be deducted under § 174(a).

Implicit in these holdings is that, when a taxpayer is involved in a project that includes
discrete activities, the taxpayer’s purpose for each activity must be analyzed in
determining whether the expenses relating to that activity qualify as research or
experimental expenditures within the meaning of Treas. Reg. § 1.174-2(a)(1).

The revenue rulings’ analyses provide a strong argument that the expenditures at issue
are exploration costs under § 174(d). The revenue rulings were issued more than forty
years ago and have not been revoked or superseded. During that time, no court has
cited them and only a few pieces of administrative guidance have discussed them.3
There has been a revision to Treas. Reg. § 1.174-2 since the issuance of the revenue
rulings that is relevant.4 In T.D. 8562, a definition for “research or experimental
expenditures” was added. The last sentence of the regulation notes that the
determination of “whether expenditures qualify as research or experimental
expenditures depends on the nature of the activity to which the expenditures relate, not
the nature of the product or improvement being developed.” This sentence suggests
that the determination of whether expenditures can be deducted under § 174(a) is made
upon looking at the purpose of each independent activity as opposed to the purpose of
the entire project to which the activity relates. In other words, the regulation validates
the analyses in Rev. Ruls. 74-67 and 75-122.

2
Section 615 (Pre-1970 Exploration Expenditures) was repealed by the Tax Reform Act of 1976 and
replaced by former § 617(i). Former § 617(i) was repealed by Sec. 11801(a)(27) of the Omnibus Budget
Reconciliation Act of 1990. See 1991-2 C.B. 481, 538.
3
Rev. Rul. 74-67 has only been cited by Rev. Rul. 75-122, a 1981 PLR, and a 1993 field service
advisory. Rev. Rul. 75-122 has been cited by two nondocketed service advice reviews and three field
service advisories, with the most recent informal administrative guidance issued in 2001.
4
Treas. Reg. § 1.174-2 has also been revised in T.D. 8131 (issued on March 30, 1987) and T.D. 9680
(issued on July 21, 2014). The revisions in those regulations are not relevant to this case.
TL-N-1179-16 8

   (b) Whether Taxpayer’s secondary purpose of collecting data to improve
   Taxpayer’s knowledge as to the extent or quality of its known coal deposits
   causes its costs to be exploration expenditures under § 174(d).

Section 174(d) provides that § 174 “shall not apply to any expenditures paid or incurred
for the purpose of ascertaining the existence, location, extent, or quality of any deposit
or other mineral.” (emphasis added). The ambiguous part of § 174(d) is whether “the”
indicates that the subsection only applies if a taxpayer’s sole purpose of an expenditure
paid or incurred is ascertaining, location, extent, or quality of any deposit of ore or other
mineral, or it applies if such purpose is merely one of the taxpayer’s purposes for the
expenditure.

Taxpayer’s argues that its primary purpose, which it asserts was to eliminate or reduce
technical uncertainty incident to the design or development of the Process process, is
what is relevant under § 174. Although Taxpayer notes multiple times that it knew of
the coal deposits, it admits that a secondary consequence of collecting data was to
improve its knowledge as to the extent or quality of the known coal deposits. Taxpayer
goes on to argue, however, that the Service is focusing on this secondary consequence
instead of its primary motivation.

Whether and to what extent tax deductions shall be allowed depends upon legislative
grace. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). A taxpayer
seeking a deduction must be able to point to a statute and show that it comes within its
terms. Id. As a general matter, provisions providing special tax deductions are strictly
construed. General Securities Co. v. Commissioner, 123 F.2d 192, 194 (10th Cir. 1941)
(citing Helvering v. Northwest Steel Rolling Mills Inc., 311 U.S. 46, 49 (1940)).

Based on these basic rules of statutory construction for deductions, Taxpayer’s costs
are subject to § 174(d) even if Taxpayer can demonstrate that the expenditures
otherwise meet the requirements of § 174(a) and the regulations thereunder. Given that
§ 174(a) should be strictly construed, it follows that the exclusion in § 174(d) be
interpreted broadly. The language of § 174(d) supports such a broad reading because
it applies to “any” expenditures for the purpose of exploration. Had Congress intended
the § 174(d) exclusion to apply narrowly, as Taxpayer suggests, it could have used
“those,” or similar limiting language, to describe the expenditures to which § 174(d)
applies. Moreover, a strict reading of § 174(d) in the context of § 174 suggests that if
“any” expenditure is paid or incurred for “the” purpose of ascertaining the existence,
location, extent, or quality of any deposit of ore or other mineral, then it does not matter
how important that purpose is relative to any purpose for the expense. In such case,
the taxpayer is not entitled to a deduction for the expense as a research and
experimental expenditure.

The legislative history to § 174 supports this interpretation. The committee reports (H.
Rept. 83-1337 (1954), p. 28; S. Rept. 83-1622 (1954), p. 33), which accompany H.R.
8300, the Internal Revenue Code, explain that exploration expenditures are not
TL-N-1179-16 9

deductible as research and experimental expenditures under § 174 because they are
“presently provided for under other provisions.”5 Congress clearly recognized that a
different regime applies to exploration expenditures. If Congress did not add subsection
(d) to § 174, taxpayers may have tried to take two deductions for one expenditure, e.g.,
under both §§ 174 and 617. But see Charles Ilfeld Co. v. Hernandez, 292 U.S. 62, 68
(1934) (stating that absent the Code or regulations that specifically authorize it,
taxpayers are not allowed the practical equivalent of a double deduction). Thus,
regardless of a taxpayer’s intent, the legislative history provides that if expenses qualify
as exploration expenses under § 617, or are otherwise provided for, they cannot qualify
as research and experimental expenditures under § 174(a).

Taxpayer’s argument that its alleged primary purpose is more important than its
secondary purpose for purposes of § 174(d) is without merit. Congress enacted § 174
as a part of the Internal Revenue Code of 1954. Since then, Congress has amended
§ 174 numerous times without ever changing the language of § 174(d). See, e.g.,
Omnibus Budget Reconciliation Act of 1989, Public Law 101-239, 103 Stat. 2489
(adding I.R.C. § 174(e) and redesignating what used to be § 174(e) as § 174(f)); The
Tax Reform Act of 1986, Public Law 99-514, 100 Stat. 2085 (amending what is currently
in § 174(f)(2)). Congress could have clarified § 174(d) so that it only applies if a
taxpayer’s “principal purpose,” “significant purpose,” or “primary purpose” is for
exploration, which is language Congress has used in other Code sections. See, e.g.,
§§ 357(b)(1) (use of principal purpose); 6662(d)(2)(C)(ii) (use of significant purpose);
and 502(a) (use of primary purpose). The fact that Congress has not amended the
language of § 174(d) since it was enacted in 1954 and the legislative history to § 174(d)
makes it clear that § 174(d) takes precedence over the other requirements of § 174.
Accordingly, Taxpayer’s expenses incurred in its Process project cannot be deducted as
research and experimental expenditures under § 174(a) because they are exploration
costs under § 174(d).

    (c) If Taxpayer’s contract costs to Company 3 and Company 4 are
    exploration costs under § 174(d), whether the costs are deductible under
    § 617.

Section 617(a) provides, in part, that at the election of the taxpayer, expenditures paid
or incurred during the taxable year for the purpose of ascertaining the existence,
location, extent, or quality of any deposit of ore or other mineral, and paid or incurred
before the beginning of the development stage of the mine, shall be allowed as a
deduction in computing taxable income. In no case shall § 617(a) apply with respect to
amounts paid or incurred for the purpose of ascertaining the existence, location, extent,
or quality of any deposit of oil or gas or of any mineral with respect to which a deduction
for percentage depletion is not allowable under § 613(a).

5
Though not cited explicitly, the “other provisions” referenced in the legislative history are likely to §§ 263
and 617. See Treas. Reg. § 1.174-2(c).
TL-N-1179-16 10

Taxpayer’s costs are mining exploration costs subject to § 617. Taxpayer does not
disagree that the requirements in the first sentence of § 617(a) are met. However, it
maintains that, under the last sentence of § 617(a), no deduction under § 617 is
allowable because a deduction for percentage depletion is not available to Taxpayer
under § 613.

Section 613 provides an allowance for depletion based on the percentage of the gross
income from “mining.” Section 613(c)(4) provides a list of treatment processes
considered as “mining,” while § 613(c)(5) provides a list of treatment processes not
considered as “mining” unless the process is otherwise provided for in § 613(c)(4).

Process is an activity that subsumes the coal extraction process – a mining activity.
The definition of “mining” under § 613(c) includes the extraction of the ores or minerals
from the ground. ---------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------

     (d) If Taxpayer’s costs are deductible under § 617, whether the statutory
     notice of deficiency (SNOD) adjustments should include the deduction or
     offset to Taxpayer’s income absent Taxpayer affirmatively making the § 617
     election.

Taxpayer’s costs meet all the eligibility requirements of § 617(a) to deduct the costs as
mining exploration expenditures. The first clause of § 617(a), however, provides that
the deduction is taken “[a]t the election of the taxpayer.”6 Thus, absent such election,
the Service should not allow Taxpayer the § 617(a) deduction.

The SNOD should be revised to not allow Taxpayer any deduction or offset to income
under § 617; but rather to provide in the explanatory language that the expenditures are
deductible under § 617 if Taxpayer so elects. Thus, it would be Taxpayer’s decision to
determine when it will make the election to deduct the costs or to capitalize them. This
recommendation conforms to the election requirement of § 617.

     (e) If Taxpayer seeks to elect § 617 treatment, whether such election would
     be timely.

6
It appears if a taxpayer does not make the election to deduct exploration mining expenditures under
§ 617, the expenditures would be capitalized under I.R.C. § 263. See Treas. Reg. § 1.174-2(c).
TL-N-1179-16 11

An additional sub-issue is whether, in the instant case, Taxpayer can make a timely
§ 617 election.

Section 6501(a) provides, in part, that except as otherwise provided in this section, the
amount of any tax imposed by this title shall be assessed within 3 years after the
return was filed.

Section 6501(c)(4) provides, in part, that where before the expiration of the time
prescribed in this section for the assessment of any tax imposed by this title both the
Secretary and the taxpayer have consented in writing to its assessment after
such time, the tax may be assessed at any time prior to the expiration of the period
agreed upon. The period so agreed upon may be extended by subsequent
agreements in writing made before the expiration of the period previously agreed
upon.

Section 6503(a)(1) provides, in part, that the running of the period of limitations
provided in §§ 6501 or 6502 on the making of assessments shall (after the mailing
of a notice under § 6212(a)) be suspended for the period during which the Secretary
is prohibited from making the assessment and for 60 days thereafter.

Section 6511(c) provides, in part, that if an agreement under the provisions of
§ 6501(c)(4) extending the period for assessment of a tax imposed by this title is
made within the period prescribed in subsection (a) for the filing of a claim or
refund- (1) The period for filing claim for credit or refund shall not expire prior to 6
months after the expiration of the period within which an assessment may be
made pursuant to the agreement or any extension thereof under § 6501(c)(4).

If the Service and taxpayer agree to a § 6501(c)(4) extension to the period for
assessment, the period for filing a timely claim for credit or refund shall not expire
prior to 6 months after the expiration of the agreement or any extension of time for
which the Service may make the assessment. § 6511(c)(1). Pursuant to the
issuance of a SNOD, § 6503(a)(1) suspends the period of limitations provided in
§ 6501 for the period of time the Secretary is prohibited from making the
assessment, plus 60 days. The § 6501(c)(4) agreement to extend the period of
limitations for assessment is a period of limitations within the meaning of § 6503.

lf' the period for assessment provided in § 6501 is extended by the period of time
for which assessment is prohibited, plus 60 days, the plain language of § 6511(c)(1)
requires that the time to file a timely claim for credit or refund be extended by
the same period of time. This extension will ensure the § 6511(c)(1) period to file
a timely claim for credit or refund will not expire prior to 6 months after the expiration
of the period for assessment provided in § 6501 thereby extending the time taxpayer
has to make a timely election under § 617(a)(2)(B) to deduct its exploration
expenditures.
TL-N-1179-16 12

Issue 2: Whether the expenditures qualify for the § 41 research credit

The expenditures incurred by Taxpayer are not R&E expenditures under
§ 174 but are mining exploration expenditures under § 174(d). Therefore, such
expenditures do not qualify for the § 41 research credit as the requirements of
§ 41(d)(1)(A) have not been met. Consequently, we do not need to continue our
analysis to determine whether any of the other elements of § 41(d) have been met as
such an analysis would be irrelevant.
TL-N-1179-16 13

CASE DEVELOPMENT, HAZARDS, AND OTHER CONSIDERATIONS
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~~~