Sales and Use Tax Reserves: Reconciling ASC 450/FAS 5 Reserve Requirements With IAS 37 Standard for Foreign Activities

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1 Sales and Use Tax Reserves: Reconciling ASC 450/FAS 5 Reserve Requirements With IAS 37 Standard for Foreign Activities THURSDAY, APRIL 6, 2017, 1:00-2:50 pm Eastern IMPORTANT INFORMATION FOR THE LIVE PROGRAM This program is approved for 2 CPE credit hours. To earn credit you must: Participate in the program on your own computer connection (no sharing) if you need to register additional people, please call customer service at x10 (or x10). Strafford accepts American Express, Visa, MasterCard, Discover. Listen on-line via your computer speakers. Respond to five prompts during the program plus a single verification code. You will have to write down only the final verification code on the attestation form, which will be ed to registered attendees. To earn full credit, you must remain connected for the entire program. FOR LIVE PROGRAM ONLY WHO TO CONTACT DURING THE LIVE EVENT For Additional Registrations: -Call Strafford Customer Service x10 (or x10) For Assistance During the Live Program: -On the web, use the chat box at the bottom left of the screen If you get disconnected during the program, you can simply log in using your original instructions and PIN.

2 Tips for Optimal Quality FOR LIVE PROGRAM ONLY Sound Quality When listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, please immediately so we can address the problem.

3 Sales and Use Tax Reserves April 6, 2017 William Ault, Director Crowe Horwath, New York Myron Vansickel, National SALT COE Tax Director Experis, Washington, D.C.

4 Notice ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY THE SPEAKERS FIRMS TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials. The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser.

5 William Ault, Crowe Horwath REVIEW OF MATERIAL TERMS OF ASC 450

6 Loss Contingencies: Material Terms I. Recognition - Probable, reasonably probable and remote - Estimable - What is a liability and what is a loss contingency? II. Measurement rules and an estimated range of loss III. Disclosure rules: Probable and reasonably possible contingencies IV. Recent end to FASB s project on loss contingency disclosure requirements 6

7 Recognition Of A Loss Contingency An estimated loss from a loss contingency shall be accrued by a charge to income if both of the following conditions are met: a. Information available prior to issuance of the financial statements indicates that it is probable that an asset had been impaired or a liability had been incurred at the date of the financial statements. It is implicit in this condition that it must be probable that one or more future events will occur confirming the fact of the loss. b. The amount of loss can be reasonably estimated. 7

8 Probable, Reasonably Possible Or Remote? Probable: The future event or events are likely to occur. Reasonably possible: The chance of the future event or events occurring is more than remote but less than likely. Remote: The chance of the future event or events occurring is slight. 8

9 Can The Amount Of The Loss Be Reasonably Estimated? The requirement that the loss be reasonably estimable is intended to prevent accrual in the financial statements of amounts so uncertain as to impair the integrity of those statements. Disclosure is preferable to accrual when a reasonable estimate of loss cannot be made. Does it relate to the current period or a prior period? 9

10 Loss Contingency Vs. Liability A loss contingency is defined as an existing condition, situation or set of circumstances involving uncertainty as to possible loss to an enterprise that will ultimately be resolved when one or more future events occur or fail to occur. Amounts owed are not contingencies even though the accrued amounts may have been estimated. There is nothing uncertain about the fact that those obligations have been incurred. 10

11 Measurement Of A Loss Contingency When both of the recognition criteria are met, and the reasonably estimable loss is a range, accrual is required of: - The amount that appears to be a better estimate than any other estimate within the range, or - The minimum amount in the range, if no amount within the range is a better estimate than any other amount. 11

12 Disclosure When A Loss Contingency Is Not Recognized Disclosure of the contingency shall be made when there is at least a reasonable possibility that a loss or an additional loss may have been incurred. The disclosure shall indicate the nature of the contingency and shall give an estimate of the possible loss or range of loss, or state that such an estimate cannot be made. 12

13 Disclosure When A Loss Contingency Is Not Recognized (Cont.) Disclosure is not required of a loss contingency involving an unasserted claim or assessment, when there has been no manifestation by a potential claimant of an awareness of a possible claim or assessment, unless: - It is considered probable that a claim will be asserted, and - There is a reasonable possibility that the outcome will be unfavorable. Information may become available indicating that an asset was impaired or a liability was incurred after the date of the financial statements, or that there is at least a reasonable possibility that an asset was impaired or a liability was incurred after that date. 13

14 The FASB s Loss Contingency Disclosure Project Ends Decision reached at the July 9, 2012 board meeting: The staff summarized its outreach with regulators and provided a short review of the feedback received on the two previous exposure drafts. The staff posed the question to the board as to whether the project should remain on the agenda, and if so what the next steps are. The board voted 5-2 to remove the project from the agenda, with no further action. 14

15 FASB Focus on Notes Disclosure Since 2012 July 2012 Invitation To Comment Applied only to notes to financial statements. It does not address parts of a financial report outside of financial statements, such as management s discussion and analysis (MD&A). March 2014 FASB Releases Conceptual Framework For Financial Reporting Chapter 8: Notes to Financial Statements 15

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17 Myron Vansickel, Experis SALES USE TAX ISSUE IDENTIFICATION PROCESS 17

18 Review Tax Audits I. Audit History and Active Audits should be your initial starting point. II. This is also where your external financial auditors often ask questions. III. Most recent audit cycles are key. IV. Focus on the issues identified, not just the dollar amounts. V. Consider the effects on the following: multiple jurisdictions; lines of business; legal entities; discontinued operations; recent acquisitions. *** Remember: The Power of an "Iceberg" and the "Titanic". 18

19 Consider Tax Controversies, Recent Developments - Review recent tax litigation, hearings, and court cases. - Examine recent private letter ruling requests. - Consider "Hot Topics" from seminars and conferences. - Review sponsored-proposed legislation or initiatives from: 1.) Your industry or trade groups; 2.) Taxpayer groups. - Examine new Department of Revenue regulations, rules, informational bulletins, notices and publications. - Don't forget about the Streamlined Sales Tax (SST)!!! 19

20 Check out your "Tool Kit" or "Tool Box" Tax Systems: - Review strengths and weaknesses of current software. - Ensure updates are timely implemented (ex. tax rates). - Understand the tax mapping. Reference Materials and Training: - Review tax manuals, matrices and guideline documents. - Evaluate "live" and web-based training. - Consider success of "help desk" and "tax support". Documentation: - Explore customer sales tax exemption tracking and updating. - Consider treatment of certificates in various jurisdictions. 20

21 Examine Sales/Use Tax Returns - Step back and take an objective look at your current sales/use tax returns and preparation process: 1.) Do we file on time with no late or processing notices? 2.) Is there a tax return calendar? 3.) Is there a current flowchart of the tax preparation process? 4.) Is the information process automated or manual? 5.) What are the "hiccups", manual workarounds? 6.) Are there sufficient "Checks" of the underlying information? - Do not rely on your own observations. Ask the preparer(s) and others in your organization. 21 *** WHAT ABOUT ACCOUNT RECONCILIATIONS!!! ***

22 Sales Tax Exemption Certificate Management - Customer sales tax exemption certificates continue to receive significant scrutiny from tax auditors and corporate tax departments. - Jurisdictions vary as to the "life" of an exemption certificate with some making it very clear (ex. Florida 1 year) while others are silent. - Common issues include the following: 1.) Incomplete certificates (ex. no date) 2.) "Un-timely" receipt of certificates 3.) "Stale" certificates 4.) Name or legal entity changes 5.) Missing or inaccurate descriptions for products purchased 6.) Certificate application to various jurisdictions *** Various tools from Avalara, Vertex, etc. can help with all of this. *** 22

23 Web-Based Sales - If your company has internet sales, make sure you explore the potential sales/use tax issues. - Common issues include the following: 1.) Traditional "Nexus Footprint" 2.) "Amazon" legislation 2.) Collection of proper customer exemption information 3.) Drop Shipments Rules 4.) Tax treatment of freight, postage, shipping & handling charges 5.) Potential "Disclosure Provisions" 23

24 Taxation of "Software" and Services The sales/use treatment of "software" and services are probably amongst the most complicated areas of state and local taxation due to the impact of technology and the lack of guidance by the Departments of Revenue. I. This can impact your purchases and sales requiring a thorough analysis. II. Jurisdictions are struggling to understand the technology and the evolving nature of services while applying tax concepts designed for sales of tangible personal property. III. "Digital equivalents" under SSTP illustrate the transition of traditional sales/use taxation. ***Companies do not properly "source" transfers or sales of "software".*** 24

25 Final Reminder Don't forget the "Local" in state and local Very aggressive and expanding Departments of Revenue. Also quite creative with new taxes and approaches to technology. Not afraid to litigate Traditionally active in the states of Alabama, Louisiana, and Colorado. City of Chicago, Cook County (Illinois), and City and County of Los Angeles are other well known locals. 25

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27 Myron Vansickel, Experis LOSS CONTINGENCIES AND ASC 450 EXAMPLES 27

28 ASC 450 Examples I. Unrecorded Liability II. Contingency Reserve 28

29 Unrecorded Liability Client X has changed outside auditing firms and the new firm has question the client regarding their sales and use tax policies and procedures. Client installs various WiFi systems within colleges and universities, hotels and some commercial businesses. 29

30 Unrecorded Liability Client has been in business for 10+ years and is now looking back at what they may owe and have to pay for their past sells to customers. The Client has decided not to go back to their customers now to collect tax as it has been several years for may of these sales 30

31 Unrecorded Liability The Client has estimated the amount of tax that is owed by its customers for each taxing jurisdiction that the client conducted work that taxes these types of system installs. 31

32 Unrecorded Liability Is this an unrecorded liability where you have to provide a reserve sales tax reserve or is this a contingency reserve where you are in dispute with some taxing authority as to what may be owed once the tax issues are resolved? 32

33 ASC 450 I. Contingency Reserves Go back to the definition of what is a contingency reserve. 33

34 ASC 450 Review what a contingency liability is and then review the next client details. 34

35 ASC 450 Client Y purchased a business that has a website that is basically a virtual event center. Buyer and seller are trying to establish an escrow amount regarding whether this software on the web is a SaaS, i.e., a service or is it a transfer and use of software subject to tax. 35

36 ASC 450 New Jersey: The New Jersey Division of Taxation did provided a private letter ruling that SaaS is not subject to tax. Here the taxpayer had a monthly subscription fee for customers to use a web application that was hosted by the Taxpayer s computer systems. 36

37 ASC 450 Any reserve required here? 37

38 ASC 450 Client Y now needs to know how Massachusetts will decide whether their SaaS will be deemed to be a service or taxable software? 38

39 ASC 450 The MA private letter ruling was opposite of the NJ ruling. MA theory was that the virtual event center transferred taxable software to the subscriber to customize its detail that it wanted to present in the virtual event program, thus giving the subscriber use of the canned software. 39

40 ASC 450 Should the buyer and seller establish an escrow based on the MA private letter ruling? Because it is in escrow, how would you record it on the buyers financial statements? 40