26th Annual Health Sciences Tax Conference
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1 26th Annual Health Sciences Tax Conference The new LB&I Division and examination process: December 5, 2016
2 Disclaimer EY refers to the global organization, and may refer to one or more, of the member firms of Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young LLP is a client-serving member firm of Ernst & Young Global Limited operating in the US. This presentation is 2016 Ernst & Young LLP. All rights reserved. No part of this document may be reproduced, transmitted or otherwise distributed in any form or by any means, electronic or mechanical, including by photocopying, facsimile transmission, recording, rekeying, or using any information storage and retrieval system, without written permission from Ernst & Young LLP. Any reproduction, transmission or distribution of this form or any of the material herein is prohibited and is in violation of US and international law. Ernst & Young LLP expressly disclaims any liability in connection with use of this presentation or its contents by any third party. Views expressed in this presentation are those of the speakers and do not necessarily represent the views of Ernst & Young LLP. This presentation is provided solely for the purpose of enhancing knowledge on tax matters. It does not provide tax advice to any taxpayer because it does not take into account any specific taxpayer s facts and circumstances. These slides are for educational purposes only and are not intended, and should not be relied upon, as accounting advice. Page 2
3 Presenters John Starling Acadia Healthcare Franklin, TN Kristy Tinsley Ernst & Young LLP Nashville, TN Mark Mesler Ernst & Young LLP Atlanta, GA Linda Kroening Ernst & Young LLP Washington, DC Page 3
4 Agenda The US tax administration landscape New LB&I examination process IRS Appeals update IRS Audit Technique Guide: Capitalization of Tangible Property Page 4
5 The US tax administration landscape Page 5
6 Large Business & International (LB&I) 2016 changes LB&I is organized into nine practice areas: five subjectmatter based and four geographically based. Subject-matter practice areas 1. Pass-through entities 2. Enterprise activities Includes financial products and institutions, corporate issues and credits, and penalties 3. Treaty and transfer pricing 4. Withholding and international individual compliance Includes Foreign Account Tax Compliance Act (FATCA) 5. Cross-border activities International activities other than those falling under the transfer pricing and withholding areas Geographic practice areas 1. Northeast (New York) 2. East (Downers Grove, Illinois) 3. Central (Houston) 4. West (Oakland, California) Page 6
7 LB&I organization chart LB&I Commissioner Douglas O Donnell Program and Business Solutions Susan Latham Deputy Commissioner Rosemary Sereti Assistant Deputy Commissioner Compliance Integration David Horton Assistant Deputy Commissioner International Theodore Setzer Technology and Program Solutions Kathryn Greene (A) Resource Solutions Keith Walker Data Mgt. William Holmes Compliance Planning and Analytics Christopher Larsen Western Compliance PA Kimberly Edwards Pass Through Entities PA Cheryl Claybough Enterprise Activities PA Kathy Robbins Central Compliance PA Tina Meaux Cross Border Activities PA John Hinding Eastern Compliance PA Lavena Williams Withholding and Int l Individual Compliance PA Pamela Drenthe Treaty and Transfer Pricing Operations PA Sharon Porter Northeastern Compliance PA Barbara Harris Operations West Don Sniezek (A) Operations Southwest Paul Curtis Computer Audit Specialists Global High Wealth Deputy Pass Through Entities Cliff Scherwinski Promoter Program Senior Advisor Elizabeth Wagner Financial Institutions and Products Gloria Sullivan Financial Products Banks/Insurance/ RICs-REITs- REMICs Affordable Care Act of field Operations North Central Katheryn Houston Engineers Operations South Central Margie Maxwell (A) Operations East Orrin Byrd Operations West Jolanta Sander Operations Great Lakes Steve Whiteaker Tax Computation Specialists Operations Southeast John Hinman (A) Operations Foreign Payments Practice Johanna McGeady- Muirphy Operations International Individual Compliance Elise Gardner Operations Transfer Pricing Practice Cheryl Teifer Economists Advance Pricing and Mutual Agreement Hareesh Dhawale Treaty Administration Deborah Palacheck Operations North Atlantic Catherine Jones Operations Mid-Atlantic Dennis Figg Corporate/Credit Holly Paz Treaty Assistance and Interpretation Team Corporate Issues and Credits Exchange of Information Penalties Joint International Tax Shelter Information Center Page 7
8 Geographic practice area map West Kimberly Edwards Central Tina Meaux East Lavena Williams Northeast Barbara Harris DFO-W D. Sniezek (A) DFO-SW P. Curtis DFO-SC M. Maxwell (A) DFO-NC K. Houston DFO-GL S. Whiteaker DFO-SE J. Hinman (A) DFO-NA C. Jones DFO-MA D. Figg WA ME MT ND VT OR CA NV ID UT WY CO SD NE KS MN IA MO WI IL MI OH IN KY WV NY PA VA NC DE RI CT NY DC NH NJ MA MD AK HI AZ NM TX OK AR LA MS TN AL GA SC FL Engineers Computer Audit Specialists Global High Wealth Tax Computation Specialists Page 8
9 Geographical compliance practice areas (PAs) Western Compliance PA Central Compliance PA Eastern Compliance PA Northeastern Compliance PA Operations West of Field Operations North Central Operations Great Lakes Operations North Atlantic Operations Southwest Engineers Tax Computation Specialists Operations Mid- Atlantic Computer Audit Specialists of Field Operations South Central Operations Southeast Global High Wealth Page 9
10 Subject-matter practice areas Pass Through Entities PA Enterprise Activities PA Cross Border Activities PA Withholding and International Individual Compliance PA Treaty and Transfer Pricing Operations PA Deputy Pass Through Entities Financial Institutions and Products Operations East Operations Foreign Payments Practice Operations Transfer Pricing Practice Promoter Program Financial Products Banks/Insurance/ RICs-REITs- REMICS Operations West Operations International Individual Compliance Economists Advance Pricing and Mutual Agreement Affordable Care Act Treaty Administration Corporate/Credit Treaty Assistance and Interpretation Team Corporate Issues and Credits Exchange of Information Penalties Joint International Tax Shelter Information Center Page 10
11 IRS issue examination approach Strategically identify and prioritize areas of compliance risk to more effectively address taxpayer compliance Scan universe of external and internal inputs Focus Analyze risk Execute Execute work with dynamic tools, enhanced training, a robust support infrastructure and timely feedback mechanisms Execute work Select work Adapt Continually gather, assess and incorporate feedback to enhance operations and improve taxpayer compliance Develop issues Decide what work is performed, who performs it and what support is needed, based on areas of compliance risk Plan Build campaigns Page 11
12 New LB&I examination process Page 12
13 IRS exam approach What s different? IRS LB&I Division is changing its historical approach to examining taxpayers. It introduced a new LB&I examination process in February 2016 Publication irs.gov/businesses/corporations/large-business- and- International-Examination-Process LB&I implemented a new structure organized around practice areas to complement the new exam approach. These changes could result in: Examination of taxpayers that have never been examined or that have not been examined in some time More issue-focused examinations New or more IRS personnel involved in an examination Page 13
14 New LB&I examination process highlights LB&I is moving to a centralized issue selection and return selection exam approach over the next few years. LB&I is seeking to create a more flexible and knowledgeable workforce, using data analytics to better identify areas of noncompliance, and creating tailored treatments to respond to issues. LB&I will generally be moving away from the continuous exams approach of Coordinated Industry Case (CIC). It is a shift to a centralized issue campaign process that focuses on how to identify and address compliance risks from multiple perspectives. Campaign-related actions would include development of training materials, technical positions and audit aids, among other tools. Issue exam teams will be implemented for centrally selected issues that will collaborate with case managers, who have overall responsibility for the case. Clear expectations will be set for LB&I examiners, taxpayers and representatives. No current expansion of Compliance Assurance Program (CAP) is planned. It incorporates the LB&I Information Document Request (IDR) Enforcement Directive and the Appeals Judicial Approach and Culture. Page 14
15 LB&I examination process expectations with respect to claims Informal claims for refund They will be provided to the exam team within 30 days of the opening conference. After 30 days, formal claims must be filed (unless issue has been identified for examination and there is no IRS published guidance specifically requiring formal claims). In limited circumstances, exceptions to the formal claims process may be granted by LB&I senior management. Claims will be disallowed if Treasury Regulation Section standards are not met. Page 15
16 LB&I examination process roles and responsibilities Expectations for LB&I examiners Work transparently in a collaborative manner with the taxpayer to understand its business and share the issues that have been identified for examination Engage the taxpayer in the development of the audit steps and potential timeline appropriate for the issues selected in the examination plan; provide a final copy to the taxpayer Follow the IDR procedures Keep the taxpayer informed of the status of each issue on a regular basis Page 16
17 LB&I examination process roles and responsibilities Expectations for LB&I examiners Provide written documentation of all relevant facts, seek taxpayer acknowledgement, and if the issue is unagreed-upon, appropriately document all disputed facts Apply the law to the facts in a fair and impartial manner Prepare well-developed Notices of Proposed Adjustments Resolve issues at the earliest appropriate point using the appropriate issue resolution tool Page 17
18 LB&I examination process roles and responsibilities Expectations for taxpayers and representatives Work transparently with the exam team by providing a thorough overview of business activities, operational structure, accounting systems and a global tax organizational chart Identify knowledgeable personnel for each issue who can provide input when establishing initial audit steps and timelines, and actively assist in the development of the issues selected by the exam team Follow the IDR procedures Page 18
19 LB&I examination process roles and responsibilities Expectations for taxpayers and representatives For issues identified for examination, provide work papers and supporting documents requested, including those the taxpayer relied on when preparing the return Collaborate with the issue team to arrive at an acknowledgment of the facts for unagreed issues; provide support for additional or disputed facts To foster early resolution, respond timely to each Notice of Proposed Adjustment by providing a written legal position for issues in dispute Resolve issues at the earliest appropriate point using an issue resolution tool Page 19
20 Three stages in the life cycle of an LB&I exam process Planning issue setting Introduce your business Discuss potential scope and issues Collaborate on steps and timing to complete exam Discuss processes and procedures LB&I will use to conduct exam Provide any informal refund claims and affirmative disclosures Execution issue development Effectively manage the IDR process Identify and collaborate with all IRS parties involved in issue development (e.g., Chief Counsel attorneys?) Determine agreement and disagreement on the facts and legal arguments Resolution issue resolution For unagreed issues, establish record for Appeals via IDR, protest Consider whether to use Fast Track Settlement or other resolution strategy Exit strategy drive to establish certainty, eliminate carryover or recurring issues Joint critique to recommend improvements Page 20
21 What are the potential implications of this new approach? Uncertainty: fewer continuous large taxpayer audits. How will this impact the release of reserves? Transparency: greater centralization of issue identification and development. What will be level of IRS transparency on issues selected for examination? Scrutiny: greater scrutiny of issues with higher expectations to produce documentation quickly Flexibility: potentially less flexibility to resolve issues at exam level Bureaucracy: multiple exam teams and management chains based on type of issue selected for audit Page 21
22 Tax controversy trends Information reporting compliance and penalties FATCA Affordable Care Act (ACA) Report of Foreign Bank and Financial Accounts (F-BAR) International information reporting Withholding taxes on payments to foreign persons Base erosion and profit shifting (BEPS) initiatives on cross-border transactions and transfer pricing Country-by-country reporting Potential impact on mutual agreement procedure New proposed US Section 385 debt-equity regulations New partnership regulations Page 22
23 IRS Appeals update Page 23
24 Appeals Judicial Approach and Culture (AJAC) AJAC applies to examination and collection cases. AJAC approach: Appeals hearing and determination are based on what is in the case file. No new issues raised by Appeals. Appeals will attempt to settle a case on factual hazards when the case submitted by Compliance is not fully developed and the taxpayer has presented no new information or evidence. If a taxpayer provides Appeals with new information, Appeals will return the case to LB&I. If a taxpayer raises new arguments at Appeals, LB&I will be given the opportunity to review and comment on the arguments, but Appeals will maintain jurisdiction. Statute of limitations one year remaining prior to acceptance in Appeals. Page 24
25 Appeals procedure changes Revenue procedure announces elimination of Appeals arbitration program (Rev. Proc ). Fast Track Settlement (FTS) Program updated: Effective immediately, cases in which a 30-Day Letter has been issued are eligible for the FTS Program. This does not change LB&I s general practice to offer FTS in appropriate situations prior to issuance of a 30-Day Letter. Also, FTS must be initiated prior to the issuance of the 90-Day Letter. Fast track cases no longer qualify for post-appeals mediation process. Page 25
26 Appeals procedure changes There are new criteria for requesting face-to-face Appeals conferences. There are limitations on transfer of cases to local Appeals office and move to virtual Appeals conferences. Appeals has discretion to invite Counsel, Compliance or experts to Appeals conference and must follow ex parte communication guidance. Page 26
27 IRS Audit Technique Guide (ATG): Capitalization of Tangible Property Page 27
28 Overview of the ATG Provides examiners with guidance on identifying potential tax issues related to the final tangible property regulations Explains all the regulation sections, with examples on some of the issues Emphasizes coordination with other Code sections and topics (e.g., Sections 263A and 199), consistency with cost segregation studies and the application of statistical sampling Page 28
29 Overview of the ATG: outline of chapters Unit of property Amounts paid to acquire or produce property De minimis safe harbor Improvement rules Safe harbors and other special rules Materials and supplies Leased property Modified Accelerated Cost Recovery System (MACRS) rules Dispositions in general MACRS disposition rules General asset account rules Accounting method changes (including capitalization, depreciation and dispositions) Page 29
30 Unit of property Examiners should request relevant documentation and identify potential issues by considering whether the taxpayer has determined the units of property in accordance with the final regulations. Review annual reports and Forms 10-K to identify new facilities, expansions of old facilities, new equipment, self-constructed assets and acquired tangible property Consider the taxpayer s line of business to determine whether the plant property rules apply, any network assets that are owned and any buildings that are owned or leased Page 30
31 Unit of property Consider how taxpayers account for units of property by determining: How taxpayers track additions How taxpayers account for dispositions How taxpayers determine improvements Whether taxpayers have a method to track repairs Analyze plant property to determine whether machinery or equipment is functionally interdependent Determine whether changes were made to the unit of property definition for personal property Determine whether the taxpayer owns network property Page 31
32 Unit of property The ATG includes an example of units of property in the context of plant property, involving a sawmill, that demonstrates a relatively granular approach. Each conveyor, band saw and gang saw performs a discrete and major function within the plant and comprises a separate unit of property. Taxpayers that have taken a broader approach to unit of property should consider implications of the ATG provisions. Page 32
33 Section 263A and self-constructed assets Section 263A requires the taxpayer to capitalize all direct and certain indirect costs properly allocable to real and tangible personal property produced by the taxpayer, in addition to addressing allocable inventory costs. The ATG advises examiners to ensure that the taxpayer allocated the correct amount to property produced by the taxpayer under Section 263A. Copies of the Section 263A calculations for each period under examination should be obtained. Allocable inventory costs associated with repairs to manufacturing assets Materials and supplies used in an inventoriable context Page 33
34 Other topics covered De minimis safe harbor (e.g., examiners may determine that a review of property expensed under the safe harbor is not warranted and, also, may assess whether amounts deducted in excess of the safe harbor clearly reflect income) Improvement rules for betterments, restoration, and new or different use Materials and supplies MACRS disposition rules Accounting method changes Page 34
35 Implications Expect a comprehensive review of background and activities Focus on supporting documentation and consistency with other relevant provisions (e.g., cost segregation, Section 263A and Section 168) Note the importance of compliance with Section 263A Maintain methodologies to continue compliance with the regulations after 2014 Analyze leasehold improvement property and leaserelated accounting methods Page 35
36 Questions? Page 36
37 EY Assurance Tax Transactions Advisory About EY EY is a global leader in assurance, tax, transaction and advisory services. The insights and quality services we deliver help build trust and confidence in the capital markets and in economies the world over. We develop outstanding leaders who team to deliver on our promises to all of our stakeholders. In so doing, we play a critical role in building a better working world for our people, for our clients and for our communities. EY refers to the global organization, and may refer to one or more, of the member firms of Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young Global Limited, a UK company limited by guarantee, does not provide services to clients. For more information about our organization, please visit ey.com. Ernst & Young LLP is a client-serving member firm of Ernst & Young Global Limited operating in the US Ernst & Young LLP. All Rights Reserved ED None This material has been prepared for general informational purposes only and is not intended to be relied upon as accounting, tax or other professional advice. Please refer to your advisors for specific advice.
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