5735 Instructions for Form 5735

Instructions for Form 5735
(Rev. January 2013)

Department of the Treasury
Internal Revenue Service

American Samoa Economic Development Credit
Section references are to the Internal Revenue Code unless
otherwise noted.

What's New

Section 330 of the American Taxpayer Relief Act of 2012 has
modified and expanded the American Samoa economic
development credit for tax years beginning after December 31,
2011. This revision reflects those changes. For information on
the credit for tax years beginning before January 1, 2012, see
the March 2007 revision of Form 5735 and the separate
instructions.

General Instructions
Purpose of Form

Form 5735 is used to figure the American Samoa economic
development credit under section 30A. The credit is generally
allowed against income tax imposed by Chapter 1 (see
Restrictions below for exceptions).

Who Must File

A domestic corporation (other than an S corporation) must
complete Form 5735 for each year the American Samoa
economic development credit election is in effect.

Where To File

Attach Form 5735 to the corporation's income tax return and file
the return with the Internal Revenue Service, P.O. Box 409101,
Ogden, UT 84409.

Qualifying for the Credit

To qualify for the American Samoa economic development
credit, a corporation must meet the qualified production activities
income (QPAI) requirement. A corporation meets this
requirement if it has qualified production activities income
(defined below).

Alternative Minimum Tax

Income eligible for the American Samoa economic development
credit is not taxed under the alternative minimum tax rules. See
Form 4626, Alternative Minimum Tax—Corporations.

Source of Gross Income, etc.

See sections 638, 861-864, and 936 to determine if the source
of gross income, deductions, and taxable income is in or outside
American Samoa. Amounts received in American Samoa may
be considered sourced outside American Samoa if they are from
sources outside American Samoa and received from an
unrelated person in the active conduct of a trade or business.
See section 936(b).

Qualified Production
Activities Income (QPAI)

Note. For tax years beginning in 2012, the corporation does not
report its QPAI on Form 5735. However, the corporation must
have positive QPAI in order to qualify for the American Samoa
economic development credit. For tax years beginning in 2012,
corporations should calculate their QPAI and keep it for their
records in order to prove to the IRS (in the case of an audit) that
they qualify for the credit.

Figuring QPAI. QPAI is the excess (if any) of:
1. Domestic production gross receipts (DPGR), over
2. The sum of:
a. Cost of goods sold allocable to DPGR, and
b. Other expenses, losses, or deductions which are properly
allocable to DPGR.

The credit is not allowed against the following taxes:
1. Tax on accumulated earnings (section 531).
2. Personal holding company tax (section 541).
3. Additional tax for recovery of foreign expropriation losses
(section 1351).
4. Recapture of investment credit (section 50).
5. Recapture of low-income housing credit
(section 42(j)(4)(D)).
6. Recapture of Indian employment credit
(section 45A).

Oil-related qualified production activities income.
Oil-related qualified production activities income is QPAI
attributable to the production, refining, processing,
transportation, or distribution of oil or gas, or any primary product
from oil or gas (section 927(a)(2)(C), as in effect before its
repeal).
Primary products from oil. Primary products from oil are
crude oil and all products derived from the destructive distillation
of crude oil, including volatile products, light oils such as motor
fuel and kerosene, distillates such as naphtha, lubricating oils,
greases and waxes, and residues such as fuel oil.
A product or commodity derived from shale oil, which would
be a primary product from oil if derived from crude oil, is
considered a primary product from oil.
Primary products from gas. Primary products from gas are
all gas and associated hydrocarbon components from gas or oil
wells, whether recovered at the lease or upon further
processing, including natural gas, condensates, liquefied
petroleum gases such as ethane, propane, and butane, and
liquid products such as natural gasoline.
See Temporary Regulations section 1.927(a)-1T(g)(2) for
additional information.

IC-DISC or FSC

Domestic Production Gross Receipts (DPGR)

!

CAUTION

The corporation does not qualify for the American
Samoa economic development credit unless it has a
positive QPAI.

Restrictions

A corporation cannot take the American Samoa economic
development credit for any tax year it is an IC-DISC or former
IC-DISC, or for any tax year in which it owns stock in an IC-DISC
or FSC, or former IC-DISC or former FSC (section 936(f)).
Jan 23, 2013

Generally, your gross receipts (defined later) derived from the
following activities are DPGR.
1. Construction of real property you perform in American
Samoa in your construction trade or business.

Cat. No. 20920T

than natural gas), chemical, and similar property, such as steam,
oxygen, hydrogen, or nitrogen.
Machinery, printing presses, transportation and office
equipment, refrigerators, grocery counters, testing equipment,
display racks and shelves, and neon and other signs that are
contained in or attached to a building constitute tangible
personal property.

2. Engineering or architectural services you perform in
American Samoa in your engineering or architectural services
trade or business for the construction of real property in
American Samoa.
3. Any lease, rental, license, sale, exchange, or other
disposition of the following.
a. Qualifying production property you manufacture, produce,
grow or extract in whole or in significant part in American
Samoa. See Qualifying Production Property and Manufacturing,
Producing, Growing, or Extracting, below, for details.
b. Any qualified film you produce.
c. Electricity, natural gas, or potable water you produce in
American Samoa.

Note. Local law does not control whether property is tangible
personal property.
See Regulations section 1.199-3(j)(2) for more information.
Computer software. In general, computer software includes
the following:
Any program, routine, or sequence of machine-readable code
that is designed to cause a computer to perform a desired
function or set of functions, and the documentation required to
describe or maintain that program or routine. An electronic book
online or for download does not constitute computer software.
Machine-readable code for (a) video games or similar
programs, (b) equipment that is an integral part of other property,
and (c) typewriters, calculators, adding and accounting
machines, copiers, duplicating equipment, and similar
equipment, even if the program is not designed to operate on a
computer as defined in section 168(i)(2)(B).
Computer programs including, but not limited to, operating
systems, executive systems, monitors, compilers and
translators, assembly routines, utility programs, and application
programs.
Any incidental and ancillary rights that are necessary for the
acquisition of the title to, the ownership of, or the right to use
computer software, and that are used only in connection with
that specific software. These incidental and ancillary rights are
not included in the definition of a trademark or trade name under
Regulations section 1.197-2(b)(10)(i).
Exception. Computer software does not include any data or
information base unless the data or information base is in the
public domain and is incidental to a computer program.
Example. If a word processing program includes a dictionary
feature that may be used to spell-check a document, then the
entire program (including the dictionary feature) is a computer
software program regardless of the form in which the dictionary
feature is maintained or stored.
See Regulations section 1.199-3(j)(3) for more information.

In general, gross receipts derived from the following activities
are not DPGR.
Activities not attributable to the actual conduct of a trade or
business.
The sale of food and beverages you prepare at a retail
establishment.
The lease, rental, or license of property between certain
persons treated as a single employer.
The lease, rental, license, sale, exchange, or other disposition
of land.
The transmission or distribution of electricity, natural gas, or
potable water.
Advertising and product-placement; however, see
Regulations section 1.199-3(i)(5)(ii) for exceptions.
Customer and technical support, telephone and other
telecommunications services, online services (including Internet
access services, online banking services, providing access to
online electronic books, newspapers, and journals) and other
similar services; however, see Regulations section 1.199-3(i)(6)
(iii) for exceptions.
Gross receipts. Gross receipts include the following amounts
from your trade or business activities.
Total sales (net of returns and allowances).
Amounts received for services, not including wages received
as an employee.
Income from incidental or outside sources (including sales of
business property).
Gross receipts are generally not reduced by the:
Cost of goods sold, or
Adjusted basis of property (other than capital assets) sold or
otherwise disposed of, if such property is described in section
1221(a)(1) through (5).

Sound Recordings. Sound recordings include any works that
result from the fixation of a series of musical, spoken, or other
sounds. The definition of sound recordings is limited to the
master copy of the recordings (or other copy from which the
holder is licensed to make and produce copies), and if the
medium (such as compact discs, tapes, or other
phonorecordings) in which the sounds may be embodied is
tangible, then the medium is considered tangible personal
property.
Exception. Sound recordings do not include the creation of
copy-righted material in a form other than a sound recording,
such as lyrics or music composition.
See Regulations section 1.199-3(j)(4) for more information.

Allocation of gross receipts. You generally must allocate your
gross receipts between DPGR and non-DPGR. Allocate gross
receipts using a reasonable method that accurately identifies
gross receipts that are DPGR. However, if less than 5% of your
gross receipts are non-DPGR, you can treat all of your gross
receipts as DPGR. Also, if less than 5% of your gross receipts
are DPGR, you can treat all of your gross receipts as non-DPGR.
For details, see Regulations section 1.199-1(d).

Qualifying Production Property

Qualified film. A qualified film is any motion picture film, video
tape, or live or delayed television programming, for which 50%
or more of the total compensation required to produce the film is
paid for services performed by actors, production personnel,
directors, and producers in American Samoa.
A qualified film includes the copyrights, trademarks, or other
intangibles related to the film. Also, QPAI includes gross receipts
from the production of a qualified film regardless of the methods
and means by which the film is distributed.

The following are qualifying production property.
Tangible personal property.
Computer software.
Sound recordings.
Tangible personal property. Tangible personal property
includes any tangible property other than land, buildings
(including structural components), computer software, sound
recordings, qualified films, electricity, natural gas, or potable
water. Tangible personal property also includes any gas (other
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See section 199(c)(6) and Regulations section 1.199-3(k) for
more information.

You are engaged in the trade or business of farming and are
not required to use the accrual method of accounting (see
section 447).
Your average annual gross receipts (defined below) are $5
million or less.
You are eligible to use the cash method of accounting under
Rev. Proc. 2002-28. You can find Rev. Proc. 2002-28 on
page 815 of I.R.B. 2002-18 at www.irs.gov/pub/irs-irbs/
irb02-18.pdf.

Manufacturing, Producing, Growing, or Extracting
Manufacturing, producing, growing, and extracting (MPGE)
generally include the following trade or business activities.
Activities related to manufacturing, producing, growing,
extracting, installing, developing, improving, and creating
qualifying production property.
Making qualifying production property out of scrap, salvage,
or junk material, or from new or raw material by processing,
manipulating, refining, or changing the form of an article, or by
combining or assembling two or more articles.
Cultivating soil, raising livestock, fishing, and mining minerals.
Storage, handling, or other processing activities (other than
transportation activities) in American Samoa related to the sale,
exchange, or other disposition of agricultural products, provided
the products are consumed in connection with, or incorporated
into, manufacturing, producing, growing, or extracting qualifying
production property whether or not by the taxpayer.

Under the small business simplified overall method, your total
cost of goods sold and other deductions, expenses, and losses
are ratably apportioned between DPGR and non-DPGR based
on relative gross receipts.
Example. Your total cost of goods sold and other trade or
business deductions, expenses, or losses are $400 and do not
include a net operating loss deduction. You have $1,000 total
gross receipts and $750 DPGR. Your DPGR equal 75% of your
total gross receipts. Under the small business simplified overall
method, you subtract $300 ($400 × .75) of your total cost of
goods sold and other trade or business deductions, expenses,
or losses from your DPGR to figure your QPAI, which is $450
($750 minus $300).

For details, see Regulations section 1.199-3(e).

Cost of Goods Sold

Average annual gross receipts. For this purpose, your
average annual gross receipts are your average annual gross
receipts for the preceding 3 tax years. If your business has not
been in existence for 3 tax years, base your average on the
period it has existed. Include any short tax years by annualizing
the short tax year's gross receipts by (a) multiplying the gross
receipts for the short period by 12 and (b) dividing the result by
the number of months in the short period.

Cost of goods sold is a component of QPAI and it includes the:
Cost of goods sold to customers, and
Adjusted basis of non-inventory property you sold or
otherwise disposed of in your trade or business.
Allocation of cost of goods sold. Generally, you must
allocate your cost of goods sold between DPGR and non-DPGR
using a reasonable method. If you use a method to allocate
gross receipts between DPGR and non-DPGR, the use of a
different method to allocate cost of goods sold will not be
considered reasonable, unless it is more accurate. However, if
you qualify to use the small business simplified overall method,
you can use it to apportion both cost of goods sold and other
deductions, expenses, and losses between DPGR and
non-DPGR.
For details, see Regulations section 1.199-4.

Oil-related production activities. If you have oil-related
qualified production activities income and you choose to use the
small business simplified overall method, you must allocate part
of these costs to DPGR from oil-related production activities to
determine oil-related QPAI.

Simplified Deduction Method
You generally can use the simplified deduction method to
apportion other deductions, expenses, and losses (but not cost
of goods sold) between DPGR and non-DPGR if you meet either
of the following tests.
Your total trade or business assets at the end of your tax year
are $10 million or less.
Your average annual gross receipts (defined above) are $100
million or less.

Form W-2 wages. To determine the amount of Form W-2
wages to include in cost of goods sold, see Wage expense
included in cost of goods sold, later.

Other Deductions, Expenses, or Losses

Other deductions, expenses, or losses include all deductions,
expenses, or losses (other than cost of goods sold and
employee business expenses) from a trade or business.

Under the simplified deduction method, your other trade or
business deductions, expenses, or losses are ratably
apportioned between DPGR and non-DPGR based on relative
gross receipts.

Allocation and apportionment of other deductions, expenses, or losses. You can generally use one of the following
three methods to allocate and apportion other trade or business
deductions, expenses, or losses between DPGR and
non-DPGR.
Small business simplified overall method.
Simplified deduction method.
Section 861 method.
However, do not allocate and apportion a net operating loss
deduction or deductions not attributable to the conduct of a trade
or business to DPGR under any of the methods.

Example. Your total other trade or business deductions,
expenses, or losses are $400 and do not include a net operating
loss. You have $240 of cost of goods sold allocable to DPGR.
You have $1,000 total gross receipts and $600 DPGR. Your
DPGR equal 60% of your total gross receipts. Under the
simplified deduction method, you subtract $240 ($400 × .60) of
your total other trade or business deductions, expenses, or
losses from your DPGR to figure your QPAI, which is $120 ($600
minus $240 minus $240).

Small Business Simplified Overall Method

Oil-related production activities. If you have oil-related
qualified production activities income and you choose to use the
simplified deduction method, you must allocate part of these
costs to DPGR from oil-related production activities to determine
oil-related QPAI.

You generally can use the small business simplified overall
method to apportion cost of goods sold and other deductions,
expenses, and losses between DPGR and non-DPGR if you
meet any of the following tests.

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b. Supplemental unemployment compensation benefits.
c. Sick pay or annuity payments from which the recipient
requested federal income tax withholding.
3. Subtract (2) from (1).
4. Add together any amounts reported in box 12 of the
relevant Forms W-2 that are properly coded D, E, F, G, or S.
5. Add (3) and (4).

Section 861 Method
You do not have to meet any tests to use the section 861
method. Under the section 861 method, you generally must
apply the rules of the section 861 regulations to allocate and
apportion other trade or business deductions, expenses, or
losses between DPGR and non-DPGR. Section 199 is treated
as an “operative section” described in Regulations section
1.861-8(f).

Tracking wages method. Under the tracking wages method,
Form W-2 wages are figured as follows.
1. Add the amounts reported in box 1 of the relevant Forms
W-2 that are also wages for federal income tax withholding
purposes.
2. Add any amounts reported in box 1 of the relevant Forms
W-2 that are both:
a. Wages for federal income tax withholding purposes, and
b. Supplemental unemployment compensation benefits.
3. Subtract (2) from (1).
4. Add together any amounts reported in box 12 of the
relevant Forms W-2 that are properly coded D, E, F, G, or S.
5. Add (3) and (4).

For details, see Regulations section 1.199-4(d).
For guidance on automatic approval to change certain
elections relating to the apportionment of interest expense and
research and experimentation expenditures, see Rev. Proc.
2006-42. You can find Rev. Proc. 2006-42 on page 931 of I.R.B.
2006-47 at www.irs.gov/pub/irs-irbs/irb06-47.pdf.
Oil-related production activities. If you have oil-related
qualified production activities income, apply the rules of section
861 to determine the amount of other trade or business
deductions, expenses, or losses to deduct for purposes of
determining oil-related QPAI.

Figuring Form W-2 Wages

You figure Form W-2 wages in two steps. First, you must
determine the amount of wages to classify as Form W-2 wages
under Regulations section 1.199-2(e)(1). Second, you must
figure Form W-2 wages that are properly allocable to DPGR.

Form W-2 wages paid to produce a qualified film. Form W-2
wages include compensation for services performed in
American Samoa by actors, production personnel, directors, and
producers to produce a qualified film. See Qualified film, earlier,
for more information.

You can figure Form W-2 wages that are properly allocable to
DPGR using one of the safe harbor methods discussed under
Form W-2 Wages Allocable to DPGR, below. Also, you can use
any reasonable method based on all the facts and
circumstances.

Form W-2 Wages
Allocable to DPGR
After you calculate Form W-2 wages, as discussed above, you
must figure Form W-2 wages that are properly allocable to
DPGR.

You can use one of the following three methods to determine
the amount of wages to classify as Form W-2 wages under
Regulations section 1.199-2(e)(1).
Unmodified box method.
Modified box 1 method.
Tracking wages method.

You can figure Form W-2 wages that are properly allocable to
DPGR under one of the following methods.
Small business simplified overall method safe harbor.
Wage expense safe harbor.
Any other reasonable method based on all the facts and
circumstances.

Relevant Forms W-2. To figure your Form W-2 wages,
generally use the sum of the amounts you properly report for
each employee on Form W-2, Wage and Tax Statement, for the
calendar year ending with or within your tax year. However, do
not use any amounts reported on a Form W-2 filed with the
Social Security Administration more than 60 days after its due
date (including extensions).

Small business simplified overall method safe harbor. If
you use the small business simplified overall method to allocate
costs between DPGR and non-DPGR (see Small Business
Simplified Overall Method, earlier), you can use the small
business simplified overall method safe harbor to determine the
amount of Form W-2 wages allocable to DPGR. Under this safe
harbor method, the amount of Form W-2 wages that is properly
allocable to DPGR equals the proportion of DPGR to total gross
receipts.

Non-duplication rule. Amounts that are treated as Form W-2
wages for a tax year under any method cannot be treated as
Form W-2 wages for any other tax year. Also, an amount cannot
be treated as Form W-2 wages by more than one taxpayer.
Unmodified box method. Under the unmodified box method,
Form W-2 wages are the smaller of:
1. The sum of the amounts reported in box 1 of the relevant
Forms W-2, or
2. The sum of the amounts reported in box 5 of the relevant
Forms W-2.

Wage expense safe harbor. If you are using either the section
861 method of cost allocation under Regulations section
1.199-4(d) or the simplified deduction method under Regulations
section 1.199-4(e), you determine the amount of wages properly
allocable to DPGR by multiplying the amount of wages for the
tax year by the ratio of your wage expense included in
calculating QPAI for the tax year to your total wage expense
used in calculating your taxable income (or adjusted gross
income) for the tax year without regard to any wage expenses
disallowed by sections 465, 469, 704(d), or 1366(d).
If you use the section 861 method or the simplified deduction
method, you must use the same expense allocation and
apportionment methods that you use to determine QPAI to
allocate and apportion wage expense for purposes of the safe
harbor.

Modified box 1 method. Under the modified box 1 method,
Form W-2 wages are figured as follows.
1. Add the amounts reported in box 1 of the relevant Forms
W-2.
2. Add all the amounts described below and included in
box 1 of the relevant Forms W-2.
a. Amounts not considered wages for federal income tax
withholding purposes.
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Wage expense included in cost of goods sold. After you
determine the amount of wages under the wage expense safe
harbor, discussed earlier, you can allocate a portion of those
wages to cost of goods sold by any reasonable method based
on the facts and circumstances. For example, you can include
wage expense in cost of goods sold in proportion to (a) the
amount of direct labor included in cost of goods sold, or (b)
section 263A labor costs (as defined in Regulations section
1.263A-1(h) (4)(ii)) included in cost of goods sold. See
Regulations section 1.199-2(e)(2)(ii)(B) for more information.

The amount of allocable employee fringe benefit expenses
for a tax year is equal to the total amount of employee fringe
benefit expenses (defined above) multiplied by a fraction. The
fraction consists of the corporation's qualified wages (defined
above) for the tax year, divided by the aggregate amount of
wages paid or incurred by the corporation during the tax year.
The allocable employee fringe benefit expenses cannot
exceed 15% of the corporation's qualified wages for the tax year.
For more information, see section 936(i)(2).

More information. For more information on figuring your Form
W-2 wages, see Regulations section 1.199-2 and Rev. Proc.
2006-47. You can find Rev. Proc. 2006-47 on page 869 of I.R.B.
2006-45 at www.irs.gov/pub/irs-irbs/irb06-45.pdf.
For more information on figuring Form W-2 wages properly
allocable to DPGR, see Regulations section 1.199-2(e)(2).

Lines 2–4

Qualified tangible property means any tangible property used
by the corporation in the active conduct of a trade or business
within American Samoa.
Short-life qualified tangible property is qualified tangible
property that is 3-year or 5-year property under section 168.

Specific Instructions

Medium-life qualified tangible property is qualified tangible
property that is 7-year or 10-year property under section 168.

Note. Any wages or other expenses taken into account in
determining the American Samoa economic development credit
may not be taken into account in determining the research credit
under section 41.

Long-life qualified tangible property is qualified tangible
property that is not short-life or medium-life qualified tangible
property.
For more information, see section 936(i)(4).

Line 1

Note. In the case of any qualified tangible property to which
section 168 (as in effect before the date of enactment of the Tax
Reform Act of 1986) applies, any references above to section
168 are to that Code section as then in effect.

Enter 60% of the sum of:
The aggregate amount of the corporation's qualified wages for
the tax year and
The allocable employee fringe benefit expenses of the
corporation for the tax year.

For more information on depreciation, see the Instructions for
Form 4562 and Publication 946.

Qualified wages. Qualified wages are wages paid or incurred
by the corporation during the tax year in connection with the
active conduct of a trade or business in American Samoa to an
employee for services performed in American Samoa, but only if
the services are performed while the employee's principal place
of employment is in American Samoa.
The term “wages” generally means wages as defined in
section 3306(b), but without regard to any dollar limitation
contained in that section. For this purpose, section 3306(b) is
applied as if the term “United States” includes American Samoa.
See section 936(i)(1)(D)(ii) for a special rule for agricultural labor
and railway labor.
The wages that are taken into account for the tax year for any
employee are limited to 85% of the old-age, survivors, and
disability insurance (OASDI) contribution and benefit base for
the calendar year in which that tax year begins. The OASDI
contribution and benefit base for 2012 is $110,100 and for 2013
is $113,700.
Special rules apply to part-time employees and employees
whose principal place of employment with the corporation is not
within American Samoa at all times during the tax year.
For more information, see section 936(i)(1).

Line 7

Include the line 7 credit on your income tax return on the same
line on which the qualified electric vehicle (QEV) credit is
reported. Enter “Form 5735” and the amount next to the entry
space for that line. On the 2012 Form 1120, the QEV is reported
on Schedule J, line 5b. The credit must also be included on the
QEV line of the following forms as applicable: Form 3800, Form
6478, Form 8835, Form 8860, Form 8910, Form 8911, and Form
8912.
Paperwork Reduction Act Notice. We ask for the information
on this form to carry out the Internal Revenue laws of the United
States. You are required to give us the information. We need it to
ensure that you are complying with these laws and to allow us to
figure and collect the right amount of tax.
You are not required to provide the information requested on
a form that is subject to the Paperwork Reduction Act unless the
form displays a valid OMB control number. Books or records
relating to a form or its instructions must be retained as long as
their contents may become material in the administration of any
Internal Revenue law. Generally, tax returns are confidential, as
required by section 6103.

Allocable employee fringe benefit expenses. The total
amount of employee fringe benefit expenses taken into account
in figuring the economic-activity limitation is the amount
deductible by the corporation in the tax year for:
Employer contributions to stock bonus, pensions,
profit-sharing, or annuity plans,
Employer-provided health or accident plan coverage for the
employees, and
The cost of life or disability insurance provided to employees.

The time needed to complete and file this form will vary
depending on individual circumstances. The estimated average
time is: Recordkeeping, 7 hr., 53 min.; Learning about the
law or the form, 2 hr., 17 min.; and Preparing, copying,
assembling, and sending the form to the IRS, 2 hr., 32 min.
If you have comments concerning the accuracy of these time
estimates or suggestions for making this form simpler, we would
be happy to hear from you. See the instructions for the tax return
with which this form is filed.

Note. Any amount treated as qualified wages may not be
treated as an employee fringe benefit expense.
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