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Umling Expense Apportioning

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Umling Expense Apportioning

  1. 1. Allocation and Apportionment of Expenses<br />April 19th -20th U.S. International Tax Compliance & ReportingRadisson Plaza –Warwick Hotel<br />Edward Umling CPA, LLM<br />UrishPopeck, LLC<br />April 19-20, 2010<br />
  2. 2. 1<br />We cover in this Module:<br />Part 1 - How expense apportionment affects the foreign tax credit benefits.<br />Providing key definitions for <br />class of income, <br />statutory groupings <br />residual groupings<br />
  3. 3. 2<br />We cover in this Module: continued<br />Part II - Application and apportionment of <br />interest expense<br />research and experimental expenses <br />stewardship, <br />state taxes and charitable deductions<br />Part III - Adopting a plan to apportion selling, general and administrative expenses<br />
  4. 4. Part 1 - How expense apportionment affects the foreign tax credit benefits.<br />3<br />
  5. 5. Example - How expense apportionment affects the foreign tax credit benefits.<br />4<br /><ul><li>The allocation and apportionment of expenses affects the amount of foreign tax credit limitation since expenses are used in deriving taxable income.</li></ul><br />The Limitation Equation<br />U.S. Tax Liability<br />Foreign Source Taxable Income<br />X<br />World-wide Taxable Income<br />
  6. 6. 5<br />How expense apportionment affects the foreign tax credit benefits.<br />Foreign Source Taxable Income<br />1,020<br />x<br />2,380<br />=<br />World-wide taxable income<br />Foreign Tax Credit Limitation<br />
  7. 7. Results<br />6<br /><br />
  8. 8. 7<br />Re-allocate an expense item of 500 to Foreign Source Income<br />Foreign Source Taxable Income<br />850<br />x<br />2,380<br />=<br />World-wide taxable income<br />Limitation<br />
  9. 9. 8<br /><br />Results Compared<br />
  10. 10. FTC Interaction with Qualified Productions Activities Income<br />A deduction is allowed for a taxpayers “qualified production activities income” which is currently 6% for 2009 and 9% thereafter. QPAI is actually DPGR less certain costs and expenses.<br />There are three categories of costs and expenses; cost of goods sold allocable to DPGR, other expenses directly allocable and expenses not directly allocable<br />9<br />
  11. 11. Expense Allocation for QPAI<br />Treasury Regulations allow three methods for allocating and apportioning expenses for purposes of §199. <br />The principal method <br /> The §861 method <br />simplified deduction method<br />10<br />
  12. 12. 861 method = “preferred method”<br />The Consistency Rule<br />If a taxpayer applies the allocation and apportionment rules of the IRC §861 regulations for one operative section, (i.e., to allocate expenses to FSI for the FTC) limitation the taxpayer must apply the same method of allocation and the same principles of apportionment to other operative sections such as calculating the QPAD<br />11<br />
  13. 13. 12<br />Exception to the Consistency Rule<br />Net operating losses not apportioned to QPAI<br />Charitable contributions are apportioned ratably between QPAI and non-QPAI<br />Research & Experimental expenses are allocated and apportioned to QPAI without taking into account the exclusive apportionment applicable to the FTC limitation calculations<br />
  14. 14. 13<br />The QPAI Deduction and the FTC benefits<br />Understand first…there are competing objectives with regard to expense allocations between the foreign tax credit (“FTC”) limitation and the domestic production activity deduction (“DPAD”)<br />The objective of the Foreign Tax Credit Limitation mechanism is to maximizes foreign source taxable income<br />The objective of the DPAD is to maximize the domestic production activities income deduction<br />
  15. 15. 14<br />Understand the Equations<br /><br />The Limitation Equation<br />U.S. Tax Liability<br />Foreign Source Taxable Income<br />X<br />World-wide Taxable Income<br />Stated another way…FSI x 35%<br /> DPAD for 2008 = 6% of qualified production activity income (“QPAI”) then you take that result and multiply by the tax rate (i.e. 35%)<br />
  16. 16. 15<br />Interest Allocations & Apportionment affects FTC benefits<br />How is interest expense allocated<br />Fair Market Value of assets<br />Tax Book Value (Average assets)<br />Alternate Tax Book Value (Straight Line)<br />
  17. 17. <br />Consider<br />How are U.S. assets depreciated?<br />Is the consolidated U.S. tax balance sheet weighted unfairly to foreign assets because consolidating adjustments effectively eliminate: investments in U.S. subsidiaries, U.S. intercompany loans and U.S. intercompany accounts receivable? <br />How are assets located outside the U.S. depreciated?<br />Which assets have the higher TBV?<br />Where does more of the interest get allocated? <br />16<br />
  18. 18. Example – allocate 100 of Interest<br />U.S. MACRS<br />Foreign Straight Line<br />17<br />100<br />40%<br />60%<br />
  19. 19. 18<br /><br />Remember the Example?<br /> Unutilized FTC<br />
  20. 20. 19<br />Stewardship Expenses affects FTC benefits<br />Stewardship and other oversight expenses reduce foreign source taxable income for the FTC limitation, but not QPAI <br /><ul><li> Allocated to a class of gross income consisting of dividends received or to be received from foreign companies</li></li></ul><li>20<br />Research & Development<br />Specific Allocation of R&D Expenses <br />Gross income method for the FTC limitation <br />25% of the R&D is allocated to the country where the majority of the research was performed<br />Sales income method for the FTC limitation <br />50% of the R&D is allocated to the country where the majority of the research was performed <br />For the DPAD, no specific allocation so 100% of the R&D is allocated to QPAI and non-QPAI<br />
  21. 21. 21<br />Research & Development Consistency<br />Two Methods to allocate R&D to the FTC limitation: gross income method or the sales method <br />Grouping using 3 digit SIC codes<br />Specific Allocations:<br />Government regulations<br />For market development<br />
  22. 22. 22<br />Selling General & Administrative (“SG&A”) <br />Generally SG&A other than those previously discussed are allocated rather than apportioned.<br /><br />Remember<br />Allocation is fact based. Identify relevant drivers and allocate the expenses to the income of those drivers<br />
  23. 23. Understanding key definitions for a class of income, statutory and residual groupings and gross income apportionment<br />
  24. 24. Expense Apportionment <br />Guidelines are provided in Treas. Reg. 1.861-8 for allocating and apportioning deductions. Specific expenses are enumerated along with the treatment for allocating and apportioning.<br />Items that represent capital expenditures are not allocated and apportioned because they are included in the basis of another asset. This would represent items under UNICAP.<br />24<br />
  25. 25. 25<br />Where are the rules located?<br />Treasury Regulation 1.861-8<br />Computation of taxable income from sources within and without the United States <br />
  26. 26. 26<br />Definition - Allocation<br />Allocation – expenses assigned based upon a factual relationship to certain classes of income (i.e. business income, rents, royalties, interest, and dividends). <br />In other words, if an expense is incurred as a result of or incident to or in connection with an activity then, that expense is allocated to the income of that activity to which it is attributable (referred to as a class of income)<br />Keys…expense incurred (1) as a result of, (2) incident to or (3) in connection with <br />
  27. 27. 27<br />Example 1 – statutory and residual groupings<br />Assume a domestic corporation manufactures in the United States and sells through its foreign branch. Assume the independent factory price (“IFP”) method is used for dividing gross income between U.S. source manufacturing income and foreign source sales income.<br />US Co<br />Mfg<br />branch rules discussed in separate module<br />Branch<br />Sales<br />
  28. 28. 28<br />Example 1 - results<br /><ul><li>Expenses related to the foreign branch are definitely related to foreign source income (statutory grouping)
  29. 29. Expense related to the manufacturing process are definitely related to US source gross income (referred to as a residual grouping) and are therefore excluded in determining FSI</li></ul>US Co<br />Mfg<br />Branch<br />Sales<br />
  30. 30. 29<br />Terminology for Allocation & Apportionment<br />Residual Grouping<br />US Co<br />Mfg<br />Branch<br />Sales<br />Statutory Grouping<br />Income is determined by Statute or Code Section<br />
  31. 31. 30<br />Explanation<br />Statutory Grouping - means the gross income from a specific source or activity which must first be determined in order to arrive at taxable income… under an operative section for example:<br />FSI<br />ECI<br />Subpart F<br />
  32. 32. 31<br />Definitions<br />The previous example leads to another term that needs defined “Apportionment”<br />If a deduction is definitely related to a class of gross income that includes income in a statutory grouping and the residual grouping….an “apportionment” is required.<br />
  33. 33. 32<br />Example 1 - expanded<br />Assume domestic company incurs management expenses in connection with the manufacturing and sale of its goods. <br />Since the management expenses relate to all of the domestic company’s activities they are definitely related to a class of gross income that includes both U.S. and foreign source income. <br />Because the expenses fall partly in the statutory grouping and partly in the residual grouping they must beapportioned between the two groups.<br />
  34. 34. 33<br />Terminology for Allocation & Apportionment<br />Incurs Management Expenses<br />US Co<br />Mfg<br />Branch<br />Sales<br />Management Expenses also relate to branch sales<br />Management Expenses are “Apportioned” between Statutory and Residual groupings<br />
  35. 35. 34<br /><br />Question<br />Incurs Management Expenses of 100<br />How much is “Apportioned” between each entity<br />US Co<br />Mfg<br />Branch<br />Sales<br />
  36. 36. 35<br /><br />Question<br />Apportionment by<br />Incurs Management Expenses of 100<br /><ul><li>Units sold
  37. 37. Gross receipts
  38. 38. Gross income
  39. 39. Cost of goods sold
  40. 40. Assets used
  41. 41. Space used
  42. 42. Production hours
  43. 43. Any other reasonable method</li></ul>US Co<br />Mfg<br />Branch<br />Sales<br />
  44. 44. 36<br /><br />Debrief<br />FTC benefits are affected by Expense Allocation & Apportionment<br />Defined terms by example<br />Classes of income (i.e. business income, rents, royalties, interest, and dividends)<br />Allocation & Apportionment to… <br />Statutory Groupings<br />Residual Groupings<br />
  45. 45. 37<br />Debrief - How is Allocation Accomplished?<br /><br />Allocation is accomplished by determining, with respect to each deduction, the class of gross income to which the deduction is definitely related and then allocating such deduction to such class of gross income.<br />Note <br />A deduction shall be considered definitely related to a class of gross income if expense incurred <br />(1) as a result of, (2) incident to or (3) in connection with<br />
  46. 46. 38<br />Debrief - How is Apportionment Accomplished?<br /><br />Expenses have to be allocated and apportioned to statutory classes of income even if that particular class does not have any income. <br />Consider the example of a U.S. company that owns several foreign subsidiaries that have not paid any dividends<br />The U.S. company has a statutory class of income: dividends from foreign subsidiaries<br /> Interest, R&D, G&A, etc. would be allocated to this class of income<br />Allocations can create an overall foreign loss (“OFL”) <br />
  47. 47. 39<br />Debrief - How is Apportionment Accomplished?<br /><br />An apportionment must be done in a way that reflects to a reasonable extent the factual relationship between a deduction and the grouping of gross income (Treas. Reg 1.861-8T(C)(1))<br />Acceptable Methods<br />Number of units sold<br />Gross receipts<br />Assets used<br />Space used or time spent<br />
  48. 48. 40<br />Part II of this Module<br />Application and apportionment of<br /> Interest expense<br />Research expenses<br />Stewardship expenses<br />State tax<br />Charitable contributions<br />
  49. 49. 41<br />Interest Expense<br />Interest expense relates to all of a taxpayers activities and assets and therefore is apportioned based on the basis of assets rather than gross income. Note: Asset values determined under tax book value, fair market value or alternative tax book value<br />Theoretically allocated to classes of gross income in proportion to assets that generate or can reasonably be expected to generate such income<br />Generally use average of BOY and EOY assets, (monthly average may be required in case of significant acquisition or dispositions during the year)<br />
  50. 50. Treas. Reg. §1.861-9T(j)<br />May elect to apportion interest of all CFCs under the “modified gross income” method as described in Reg. §1.861-9T(j)<br />However, this election is not available to a CFC if a US shareholder and affiliates constitute a controlling shareholder and the CFC elects FMV method.<br />42<br />
  51. 51. 43<br />Interest Expense<br />Example Asset Method<br />Assume interest expense of 200 for the year and average net assets is 4,000 which includes 800 of net assets used in activities that generate FSI<br />
  52. 52. 44<br />Interest Expense<br />Step 1 – determine the apportionment amount for the statutory grouping first and then apportion balance to the residual grouping<br />Result<br />Statutory grouping (800/4,000) x 200 = 40 of interest<br />Residual grouping 160 (200-40) <br />
  53. 53. 45<br />A Formula to Allocate Interest Expense<br />Assets of affiliate group generating foreign source income<br /> Interest expense apportioned to foreign source<br /> U.S. interest expense<br />x<br />=<br /> Total average net assets of the affiliate group<br />The numerator includes investments in foreign subsidiaries, net E&P of foreign subsidiaries, loans to foreign subsidiaries, accounts receivable applicable to sales with foreign title passage, other assets of foreign branches and directly owned disregarded entities, etc. <br />
  54. 54. TBV v. FMV AllocationWhat’s the difference?<br />The FMV may be advantages where US assets are fully depreciated or have a low tax basis and those assets possess a higher FMV. Taxpayer has highly appreciated domestic assets.<br />This occurs where US assets have been subjected to accelerated depreciation and subject to a greater depreciation percentage than foreign assets. (note the ATBV may mitigate this problem)<br />46<br />
  55. 55. FMV method<br />The FMV election does not require the consent of the IRS. However, once the fair market value method has been elected, it may only be changed with the permission of the IRS. <br />Retroactive Application? Yes<br />Ralston Purina v. Comr., <br />47<br />
  56. 56. FMV Method<br />Step 1. Determine aggregate value of all assets<br />Step 2. Determine value all assets of taxpayer and percentage of assets related persons not including stock or indebtedness and intangibles in related persons <br />Step 3. Subtract step 2 from step 1 and apportion the difference between the taxpayer and the related persons on net income before interest and taxes, excluding passive income.<br />Step 4. Determine value of U.S. taxpayer’s stock in related persons<br />48<br />
  57. 57. Alternative tax book value method<br />Similar to TBV, but allows use of Alternate Deprecation method to determine TBV of U.S. assets, which is consistent with method used to determine TBV of foreign assets that are depreciated.<br />Should result in higher tax basis in U.S. than the TBV method which uses accelerated depreciation in valuing US assets. <br />This may be easier and less costly than FMV method <br />49<br />
  58. 58. Debrief Summary<br /><br />Application of TBV, FMV or ATBV method<br />May elect FMV on an amended return for open tax years. <br />Once you elect a method you must stay on that method for five years.<br />50<br />
  59. 59. 51<br />Research and Experimental<br />Rules are covered under Treasury Regulation §1.861-17 <br />Example <br />Where a taxpayer performs tests on a product in response to a requirement imposed by the U.S. Food and Drug Administration, and the test results cannot reasonably be expected to generate amounts of gross income (beyond de minimis amounts) outside the United States, the costs of testing shall be allocated solely to gross income from sources within the United States. The remainder of R&D costs are allocated and apportioned, at the taxpayers election, by the sales method or the gross income method. <br />
  60. 60. 52<br />Research and Experimental<br />The regulations require taxpayers to segregate income into specified product categories and then match related R& E expenses with that income. <br />This prevents R& E expenses incurred in one business line from reducing taxable income from a separate business line. <br />For example, R& E performed for a taxpayer's chemical business should not reduce that taxpayer's income from a separate textile mill business.<br />
  61. 61. 53<br />Research and Experimental<br /><br />Step 1<br />Allocate to gross income in the Broad Product Categories (i.e. 3 digit SIC Code). <br />
  62. 62. 54<br />Research and Experimental<br /><br />Step 2<br />Identify Legally Mandated Research & Experimentation<br />R&E undertaken solely to meet legal requirements in a particular geographic area <br />This definitely related R&D is allocable ONLY to the group or groupings of gross income within that geographic area<br />
  63. 63. 55<br />Research and Experimental<br /><br />Step 3<br />Identify whether 50% or more of the R&E efforts take place in a specific geographic area, i.e., the U.S., the UK, etc.? <br />If the “Geographic Source Test” is met then, depending upon which allocation method is used, either 25% or 50% of the R&D is allocated to the geographical source <br />
  64. 64. 56<br />Research and Experimental<br />What if exclusive apportionment does not exist<br />If 50% requirement is not met then there is no geographic apportionment. All R&D expenses are apportioned under the sales method or the gross income method.<br />This could happen if R&D activities are de-centralized and no particular geographic source accounts for more than 50% of the expenses<br />
  65. 65. 57<br />R&E: Exclusive Apportionment<br />There are two methods to allocate and apportion the exclusively apportioned R&D amount to the statutory and residual groupings which a taxpayer can choose or elect<br />Sales Method (50%) <br />(Optional) Gross Income Method (25%)<br />Example: Sales Method<br />Assume taxpayer's total R & E expense of $1,000 for the products falling within SIC Code 363, $750 is incurred within the United States.<br />
  66. 66. 58<br />R&E: Exclusive Apportionment<br />Under the sales method a taxpayer can exclusively apportion 50% of its R&E expenses within that product category (i.e., $500) to U.S. - source income (the residual grouping in this case) , thereby reducing the amount of R& E apportioned to foreign-source income. <br />The remaining $500 of R& E expenses would then be apportioned by a mathematical equation For instance, sales in a particular SIC category divided by total sales<br />
  67. 67. 59<br />Optional Gross Income Method<br />Under the gross income method 25% of the exclusively apportioned R&E is apportioned exclusively to the applicable geographic source then, remainder of the R&E is allocated based upon gross income.<br />
  68. 68. 60<br />Optional Gross Income Method<br />Two requirements accompany the sales method:<br />The amount allocated and apportioned under the statutory grouping must be at least 50%of the amount determined under the sales method<br />The amount allocated and apportioned under the residual grouping must be at least 50%of the amount determined under the sales method<br />If either of the two preceding tests are failed then an adjustment is made to bring the allocated amount of R&D within the 50% amount determined using the sales method <br />
  69. 69. 61<br />Comprehensive Example <br />Alcan manufactures and distributes aluminum machines and incurred $60,000 of R&D in the U.S. Its products fall within the same SIC category. Alcan’s wholly owned subsidiary in Australia manufactures and sells the aluminum machines in Europe using the technology developed by Alcan.<br />
  70. 70. 62<br />Comprehensive Example<br />
  71. 71. 63<br />Sales Method<br />½ of R&D allocated exclusively to the U.S. Remainder is apportioned<br />Statutory Grouping 30,000 X 300,000 / 800,000 = 11,250<br />Residual Grouping 30,000 X 500,000 / 800,000 = 18,750<br />U.S. is apportioned 48,750<br />[30,000 + 18,750]<br />
  72. 72. 64<br />Optional Gross Income Method<br />25% of R&D allocated exclusively to the U.S. Remainder is apportioned<br />Residual Grouping 15,000 <br />45,000 x 150,000 / 160,000 = 57,188 – U.S. Residual Grouping <br />45,000 x 10,000 / 160,000 = 2,812 – FSI Statutory Grouping<br />Alcan Gross profit = 140,000<br />Australian royalties = 10,000<br />Interest Income = 10,000<br />Total Gross income = 160,000<br />Rule – must be at least 50% of what it would otherwise be under the sales method<br />
  73. 73. 65<br />Optional Gross Income Method<br />Residual Grouping 15,000 <br />45,000 - 140,000 / 150,000 = 43,375 – U.S. Residual Grouping <br />45,000 - 10,000 / 150,000 = 5,625 – Statutory Grouping<br />Increase R&E allocated to statutory grouping to 50% of what it would be under the sales method 11,250 x 50% = 5,625<br />
  74. 74. 66<br />Choice of Sales Method or Gross Income Method<br /> Taxpayers must generally follow a particular method for 5 years and after the 5 year period they can change to the other method and follow that method for 5 years [Treas. Reg. 1.861-17(e)]<br />
  75. 75. 67<br />R&E Allocations<br />In general, regardless of whether a taxpayer applies the sales method or the gross income method, the allocation and apportionment of R&D within an affiliated group is determined as if all members were a single corporation [1.861-14T]<br />
  76. 76. 68<br />Stewardship<br />Stewardship activities are overseeing activities and functions undertaken to supervise an investment in another entity. <br />The regulations view expenses relating to stewardship or overseeing functions as being incurred as a result of, or incident to, the payor corporation's ownership of stock in the related corporation. <br />Accordingly, the regulations treat such expenses as definitely related and allocable to dividends received or to be received from the related corporation. <br />
  77. 77. 69<br />Stewardship<br />The IRS has indicated that stewardship expenses include<br />the cost of duplicative review or performance of activities already undertaken by the subsidiary; <br /> the cost of periodic visitations and general review of the subsidiary's performance; <br />the cost of complying with reporting requirements or other legal requirements that the subsidiary would not incur but for being part of the affiliated group; and <br />
  78. 78. 70<br />Stewardship<br />The IRS has indicated that stewardship expenses include: <br />the cost of financing or refinancing the parent's ownership participation in the subsidiary. <br />An example in the Treasury Regulations under Code Sec. 861 also indicates stewardship expenses include the costs of auditors from the parent's accounting department, and the costs of the parent's treasurer. <br />
  79. 79. 71<br />Charitable Contributions<br />Under the 2005 final regulations, a charitable contribution deduction allowed under Sections 170 , 873(b)(2) , and 882(c)(1)(B) is treated as definitely related and allocable to all of the taxpayer's gross income.<br />The contribution is then apportioned between the statutory grouping (or among the statutory groupings) of gross income and the residual groupings of gross income on the basis of the relative amounts of U.S.-source gross income in each grouping. <br />
  80. 80. 72<br />State Income Taxes<br />State income taxes are treated as definitely related and allocable to the gross income with respect to which taxes are imposed.<br />If a corporation subjects foreign source income to taxation, that portion of state tax definitely related and allocable to FSI<br />In general, state income taxes are allocable and apportioned based upon state taxable income<br />
  81. 81. 73<br />State Income Taxes<br />State income tax is allocated and apportioned to foreign source income only if the sum of the entity's state taxable income exceeds its federal domestic source taxable income<br />
  82. 82. 74<br />State Income Taxes<br />Treasury Regulation 1.861-8 Example 25<br />Domestic Company operates in three states, A, B and C and also has a foreign branch in another country<br />Federal taxable income is as follows:<br />150,000 = net FSI<br />800,000 = net U.S. source income<br />FSI is taxable in all three states<br />
  83. 83. 75<br />State Income Taxes Data for Example 25<br />
  84. 84. 76<br />State Income Taxes<br />State taxes of 69,000 are related to and allocable to the gross income on which the taxes were imposed<br />No exemption for FSI<br />Taxable income > domestic federal income<br />800,000 of US-source and 150,000 of FSI<br />(950,000-800,000) =FSI<br />
  85. 85. 77<br />State Income Taxes Apportionment<br />Foreign Source:<br />69,000 x (150,000/950,000) = 10,895 allocated to net FSI <br />69,000 x (800,000/950,000) = 58,105 allocated to net U.S. source income <br />
  86. 86. Part IIIAdopting a Plan for Expense Apportionment<br />
  87. 87. 79<br />
  88. 88. 80<br />Schedule O page 1 Continued<br />
  89. 89. 81<br />Purpose of Schedule O<br />A corporation that is a member of a controlled group must use Schedule O to report apportionment of taxable income, income tax and certain tax benefits between members of the controlled group.<br />If the corporation is adopting an apportionment plan for the current tax year.<br />If a corporation is amending or terminating and existing apportionment plan.<br />If a corporation has no apportionment plan and is not adopting a plan.<br />Corporation already has an apportionment plan in effect<br />
  90. 90. 82<br />Who must file Schedule O?<br />A corporation must file Schedule O with its income tax return, amended return, or claim for refund for each tax year that the corporation is a component member of a controlled group, even if no apportionment plan is in effect..<br />The common parent of that consolidate group must file as part of the consolidated income tax return. Only one Schedule O is required on behalf of the group. So subsidiary should file this form.<br />
  91. 91. 83<br />Disclaimers<br /><ul><li>The informal comments and the information presented in these slides should not be construed as constituting tax advice applicable to any specific taxpayer because each taxpayer’s facts are different.
  92. 92. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice mentioned in the presentation or contained in these slides is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transactions or matters addressed herein. </li></li></ul><li>84<br />Edward Umling, CPA. LLM<br />Senior Manager<br />Urish Popeck LLC<br />3 Gateway Center Suite 2400<br />Pittsburgh, PA 15222<br />Tel: 1 412 391-1994 ext 259<br />Contact Information<br />

Notas del editor

  • The allocation and apportionment rules play a central role in the determination of the various foreign tax credit limitations. These limitations — or “caps” — on the amount of the credit available for foreign taxes paid on each limitation category of foreign income are determined by multiplying the pre-credit U.S. tax on the resident taxpayer&apos;s worldwide taxable income by the ratio of taxable income within the limitation category to worldwide taxable income. 63 For purposes of this ratio, foreign-source taxable income in a limitation category is foreign-source gross income in that category (determined generally under §§862(a) and 863(a)) reduced by “the expenses, losses, and other deductions properly apportioned or allocated thereto, and a ratable part of any expenses, losses, or other deductions which cannot definitely be allocated to some item or class of gross income.” 64 The greater the allocation of deductions to foreign-source gross income in the limitation category, the lower the amount of foreign taxable income in the category, the lower the numerator in the limitation fraction, and, therefore, the lower the amount of foreign income taxes in that category that may be utilized as a credit against U.S. tax liability in the taxable year. 65It should be emphasized that foreign-source taxable income in a category is defined by U.S. law and is based on U.S. tax principles. Thus, it is irrelevant whether a particular deduction is allowed in the foreign jurisdiction. 66 If an item of expense is allocated or apportioned to foreign-source income for purposes of calculating the foreign tax credit limitation but is not allowed as a deduction by the foreign taxing authority, the allocation or apportionment may render some foreign income taxes noncreditable, thus in effect denying the U.S. taxpayer the benefit of the deduction. 67
  • The IRS and Treasury Department issued interim, proposed, and final guidance on the domestic production activities deduction. 81 The regulations set forth three methods for allocating and apportioning expenses (other than cost of goods sold 82 ) for purposes of §199. 83 The principal method, “the §861 method,” utilizes the rules of Regs. §§1.861-8 through -17 (subject to modification). 84 Two simplified alternatives to the §861 method are, however, available to taxpayers that do not have gross receipts that exceed certain thresholds. 85 Under the “simplified deduction method,” available to taxpayers with average annual gross receipts of $100,000,000 or less, or total assets of $10,000,000 or less, deductions generally are apportioned ratably between DPGR and other gross receipts based on relative gross receipts. 86 The “small business simplified overall method,” available to taxpayers with average annual gross receipts of $5,000,000 or less, 87 generally permits deductions and cost of goods sold to be apportioned ratably between DPGR and other gross receipts based on relative gross receipts. 8881 Notice 2005-14, 2005-7 I.R.B. 498; REG-105847-05, 70 Fed. Reg. 67220 (11/4/05); T.D. 9263, 71 Fed. Reg. 31268 (6/1/06). T.D. 9263obsoleted Notice 2005-14 and adopted regulations effective for taxable years beginning on or after June 1, 2006. For taxable years beginning before June 1, 2006, a taxpayer may apply the final regulations provided the taxpayer applies all relevant provisions. A taxpayer choosing not to rely on the final regulations for pre-effective-date taxable years may rely upon a stated rule in either Notice 2005-14 or the proposed regulations. Regs. §1.199-8(i)(1).82 With respect to cost of goods sold, Regs. §1.199-4(b)(2) provides that a taxpayer should utilize a “reasonable method that is satisfactory to the Secretary based on all of the facts and circumstances” to allocate the cost of goods sold between DPGR and other gross receipts. An exception to these cost of goods sold rules is the small business simplified overall method of cost allocation (described below), which must be used for all costs.83Regs. §1.199-4(c).84Regs. §1.199-4(d).85Regs. §1.199-4(e), (f).86Regs. §1.199-4(e).87 The small business simplified overall method is also available to taxpayers with average annual gross receipts of $10,000,000 or less that are not prohibited from using the cash method under §448, including a partnership, an S corporation, a C corporation, or an individual and to taxpayers engaged in the trade or business of farming that are not required to use the accrual method of accounting under §447. Regs. §1.199-4(f)(2).88Regs. §1.199-4(f).
  • Consistent use in the application of expense allocation between operative code sections is required. However, the taxpayer may vary the application of allocation and apportionment from year to year.The IRS and Treasury Department issued interim, proposed, and final guidance on the domestic production activities deduction. 81 The regulations set forth three methods for allocating and apportioning expenses (other than cost of goods sold 82 ) for purposes of §199. 83 The principal method, “the §861 method,” utilizes the rules of Regs. §§1.861-8 through -17 (subject to modification). 84 Two simplified alternatives to the §861 method are, however, available to taxpayers that do not have gross receipts that exceed certain thresholds. 85 Under the “simplified deduction method,” available to taxpayers with average annual gross receipts of $100,000,000 or less, or total assets of $10,000,000 or less, deductions generally are apportioned ratably between DPGR and other gross receipts based on relative gross receipts. 86 The “small business simplified overall method,” available to taxpayers with average annual gross receipts of $5,000,000 or less, 87 generally permits deductions and cost of goods sold to be apportioned ratably between DPGR and other gross receipts based on relative gross receipts. 8881 Notice 2005-14, 2005-7 I.R.B. 498; REG-105847-05, 70 Fed. Reg. 67220 (11/4/05); T.D. 9263, 71 Fed. Reg. 31268 (6/1/06). T.D. 9263obsoleted Notice 2005-14 and adopted regulations effective for taxable years beginning on or after June 1, 2006. For taxable years beginning before June 1, 2006, a taxpayer may apply the final regulations provided the taxpayer applies all relevant provisions. A taxpayer choosing not to rely on the final regulations for pre-effective-date taxable years may rely upon a stated rule in either Notice 2005-14 or the proposed regulations. Regs. §1.199-8(i)(1).82 With respect to cost of goods sold, Regs. §1.199-4(b)(2) provides that a taxpayer should utilize a “reasonable method that is satisfactory to the Secretary based on all of the facts and circumstances” to allocate the cost of goods sold between DPGR and other gross receipts. An exception to these cost of goods sold rules is the small business simplified overall method of cost allocation (described below), which must be used for all costs.83Regs. §1.199-4(c).84Regs. §1.199-4(d).85Regs. §1.199-4(e), (f).86Regs. §1.199-4(e).87 The small business simplified overall method is also available to taxpayers with average annual gross receipts of $10,000,000 or less that are not prohibited from using the cash method under §448, including a partnership, an S corporation, a C corporation, or an individual and to taxpayers engaged in the trade or business of farming that are not required to use the accrual method of accounting under §447. Regs. §1.199-4(f)(2).88Regs. §1.199-4(f).
  • If a deduction is not definitely related to class of income then it is apportioned ratably to a statutory grouping.
  • The intent of the allocation and apportionment regulations is to provide guidelines for allocating and apportioning all deductions. The regulations highlight specific expenses and provide special rules for allocating and apportioning deductions for them. For all other deductions, the regulations provide general guidelines for their allocation and apportionment.The regulations do not allocate capital expenses, because such an expense is not deductible but is included in the basis of another asset (which itself may be depreciable or amortizable). Capital expenses include expenses subject to the uniform capitalization (UNICAP) rules and capitalizable interest expense.
  • Generally allocated to classes of gross income in proportion to assets that generate or can reasonably be expected to generate such income
  •   1.861-9T(j) Modified Gross Income Method.Subject to rules set forth in paragraph (f)(3) of this section, the interest expense of a controlled foreign corporation may be allocated according to the following rules.  1.861-9T(j)(1) Single-Tier Controlled Foreign Corporation.In the case of a controlled foreign corporation that does not hold stock in any lower-tier controlled foreign corporation, the interest expense of the controlled foreign corporation shall be apportioned based on its gross income.  1.861-9T(j)(2) Multiple Vertically Owned Controlled Foreign Corporations.In the case of a controlled foreign corporation that holds stock in any lower-tier controlled foreign corporation, the interest expense of that controlled foreign corporation and such upper-tier controlled foreign corporation shall be apportioned based on the following methodology:1.861-9T(j)(2)(i) Step 1.Commencing with the lowest-tier controlled foreign corporation in the chain, allocate and apportion its interest expense based on its gross income as provided in paragraph (j)(1) of this section, yielding gross income in each grouping net of interest expense.1.861-9T(j)(2)(ii) Step 2.Moving to the next higher-tier controlled foreign corporation, combine the gross income of such corporation within each grouping with its pro rata share of the gross income net of interest expense of all lower-tier controlled foreign corporations held by such higher-tier corporation within the same grouping adjusted as follows:1.861-9T(j)(2)(ii)(A) Exclude from the gross income of the upper-tier corporation any dividends or other payments received from the lower-tier corporation other than interest subject to look-through under section 904(d)(3); and1.861-9T(j)(2)(ii)(B) Exclude from the gross income net of interest expense of any lower-tier corporation any subpart F income (net of interest expense apportioned to such income).Then apportion the interest expense of the higher-tier controlled foreign corporation based on the adjusted combined gross income amounts. Repeat this step 2 for each next higher-tier controlled foreign corporation in the chain. For purposes of this paragraph (j)(2)(ii), pro rata share shall be determined under principles similar to section 951(a)(2).
  • Generally allocated to classes of gross income in proportion to assets that generate or can reasonably be expected to generate such income
  • Consistent with its published position, the IRS, in a 2000 docketed Tax Court case, Ralston Purina v. Comr., challenged the taxpayer&apos;s ability to make a retroactive fair market value election. 428 In a significant change of position, however, on June 19, 2002, the IRS conceded that “the doctrine of election does not preclude [Ralston Purina] from amending its [past years’] income tax returns to elect retroactively to value assets according to their fair market values for purposes of apportioning interest expense under Temp. Treas. Regs. §§1.861-8T(c)(2) and 1.861-9T(g)(1)(ii).” Concurrent with its concession in Ralston Purina, the IRS issued Chief Counsel Notice 2002-27, 429 which states that:428 Ralston Purina v. Comr., T.C. Dkt. No. 7357-00.429 2002-1 C.B. 814.After careful reconsideration, the Service will no longer argue that the doctrine of election applies to preclude a taxpayer from amending past years’ returns to elect retroactively to value assets according to their fair market values for purposes of apportioning interest expense under Temp. Treas. Regs. §1.861-9T(g).
  • Step 4Taxpayer’s pro rata share of related persons’ Step 2 (“tangible”) assets► Plus: Intangible asset value apportioned to related persons in Step 3► Less: Taxpayer’s pro rata share of related persons’ liabilitiesTechnical issues under FMV method► Elimination of inter-company receivables from computations – conflict with Temp. Reg. §1.861-12T(d)?► Use of GAAP vs. tax basis EBIT to allocate intangible value► Treatment of losses in allocating intangible value
  • See IRS CCA 2002-027 and Rev. Proc. 2003-37

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