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1 TaxUpdate Berwyn Boston Detroit Harrisburg New York Orange County Philadelphia Pittsburgh Princeton Washington, D.C. Wilmington January 2011 Follow Us on Twitter Quotable Todd B. Reinstein was quoted in the January 21, 2011 issue of Pacific Business News regarding the federal tax issues in power purchase agreements. Speakers Corner Philip E. Cook, Jr. will present a Pennsylvania State and Local Tax Update at Penn State University Greater Allegheny on February 7,9 or 10, On February 14, Steven D. Bortnick will be speaking at the Wharton Private Equity & Venture Capital Club on Private Equity Tax Essentials. On February 19, Philip E. Cook, Jr. will discuss Business Tax at Community College of Allegheny County. On February 24, Lisa B. Petkun, Henry C. Fader and Gregory A. Paw will participate in a webinar sponsored by the New Jersey Hospital Association, Preserving Tax-Exempt Status. The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship. Internal Revenue Service rules require that we advise you that the tax advice, if any, contained in this publication was not intended or written to be used by you, and cannot be used by you, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Please send address corrections to phinfo@pepperlaw.com Pepper Hamilton LLP. All Rights Reserved. CCA Applies Anti-Abuse Rule for Transactions between a Consolidated Group and a Non- Member where a Partnership Is Interposed Todd B. Reinstein reinsteint@pepperlaw.com Most transactions between members of the same consolidated group generally do not result in current recognition of federal income tax. Treasury Regulations require that intercompany items of income, gain, deduction, and loss that result from intercompany transactions between members are zeroed out under a single-entity approach. 1 This is accomplished by matching the transactions and treating them as transactions that would occur as if they were divisions of a single entity, so as to clearly reflect consolidated taxable income. 2 Importantly, these Treasury Regulations contain an anti-abuse rule that states that, [i]f a transaction is engaged in or structured with a principal purpose to avoid the purposes of this section (including, for example, by avoiding treatment as an intercompany transaction), adjustments must be made to carry out the purposes of this section. 3 The anti-avoidance rule would seem to treat transactions that are not intercompany transactions in form, but are intercompany transactions in substance as intercompany transactions, when they result in an abusive creation of a loss or changing the location of income that has the effect of reducing federal income tax. On November 5, 2010, the IRS released a Chief Counsel Advice Memorandum (CCA) holding that the payment of a patronage dividend by a cooperative to member patrons, who were all members of the same consolidated group, was an intercompany transaction under Treas. Reg. Section by applying the anti-abuse rule in the situation in which a partnership was interposed between the members and the cooperative. 4 This publication may contain attorney advertising. in this issue... 1 CCA Applies Anti-Abuse Rule for Transactions between a Consolidated Group and a Non-Member where a Partnership Is Interposed 4 Recent Developments: Bonus Depreciation, Gift Card Guidance, and Rev. Proc Pepper Hamilton s Tax Practice Group

2 Speakers Corner Continued Joan C. Arnold will speak at the Annual Meeting of the USA Branch of the International Fiscal Association on Get Your Head Out of the Sand: Planning for FATCA for Non-Financial Institutions on February 25. Todd B. Reinstein will moderate a panel, Hot Topics in R&D Credits, at the Federal Bar Association s 35th Annual Tax Law Conference on February 25, 2011 in Washington, D.C. On March 1, Todd B. Reinstein and Annette M. Ahlers will present on Consolidated Return Rules Affecting Tax Attributes to the Tax Executives Institute Houston Chapter s 23rd Annual Tax School in Houston, TX. Joan C. Arnold will be presenting on March 3, on Section 956: Financing the Global Corporation. On March 9, Steven D. Bortnick will speak to the Stern Private Equity Club on Structuring Cross Border Private Equity Investments. Background on Taxation of Cooperatives A cooperative is permitted to claim an income tax deduction for dividend distributions to their patrons (owners) paid within eight and a half months following the close of the tax year. 5 The corresponding patronage dividends are included in the taxable income of the patrons in the year of receipt. 6 The patronage dividends may effectively allow a one-year deferral on the taxation of the income earned by a cooperative if timed properly. If the cooperative and the patrons are members of the same consolidated group, the payment of the patronage dividend is considered an intercompany transaction, subject to the matching rule, whereby the deduction of the payment of the patronage dividend would be treated as occurring in the same year as the inclusion of the patronage dividend by the consolidated members. 7 This ensures that the timing of the items properly reflect income with no deferral of income between the group members. CCA In CCA , the taxpayer was the parent of a large affiliated group, which has retail operations throughout the United States, filing a consolidated federal income tax return. Procurement and merchandising functions were historically performed by the taxpayer s general office. A tax promoter approached the taxpayer about forming a cooperative that would be owned by a newly formed partnership, which in turn would be owned by the consolidated members. The newly formed partnership had no operations and did not have any business relationship with the cooperative. Presumably the partnership was interposed between the consolidated group and the cooperative to prevent the cooperative from being in the consolidated group and having the matching rules not apply to the issuances of patronage dividends. 8 As part of the plan, the taxpayer transferred employees to the cooperative to perform the procurement and merchandising functions they performed in the taxpayer s operating company before. The cooperative performed these functions by taking delivery and title to the procured merchandise. Consolidated group members paid a surcharge for all the goods purchased by the cooperative. The promoter suggested that this strategy would eliminate certain state income taxes and create a deferral for federal income taxes for one year, because the standard application of the matching rule would not apply since a partnership broke consolidation. 9 The IRS concluded that by transferring the procurement and merchandising functions to the cooperative and charging a 2

3 TaxUpdate surcharge for the same services, the patrons artificially inflated their cost of goods sold for that year and deferred income on the surcharge, which would essentially be returned to them the following year as a patronage dividend. Moreover, the taxpayer s interjection of a partnership between the cooperative and the consolidated group member was abusive under Section (h), because it deliberately excluded the cooperative from the consolidated group. Part of the IRS analysis on the application of Treas. Reg. Section (h) was based on the promoter s assertions that the transaction was done for tax purposes with no business purpose and the taxpayer did not get an opinion as to the business efficiency or viability of forming the cooperative. 10 Pepper Perspective The rationale for the conclusion in the CCA is somewhat surprising, because the IRS essentially disregarded the ownership of the newly created partnership to conclude that the consolidated group essentially included the cooperative, and thus, the matching rule applied to transactions between the cooperative and the group member. By disregarding the taxpayer s interposition of the partnership within the consolidated group, the IRS applied the anti-abuse rule beyond just normal substance over form. This type of entity disregard could discourage taxpayers from entity selection in other normal circumstances. Moreover, the CCA leaves open a number of unanswered questions. Would the result in the CCA be the same if the cooperative were foreign, since foreign entities cannot join in the filing of a consolidated return thus nullifying the application of the matching rule s intent? How heavily did the promoter s actions play in the determination? Would the CCA come to a different result if the partnership was already an active partnership with which the group members had a prior business relationship? En d n o t e s 1 See generally Treas. Reg. Section Unless otherwise stated, all references to Sec. are to the Internal Revenue Code of 1986 (the Code), and all references to Reg. Sec. are to the Treasury Regulations promulgated thereunder (the Regulations). 2 Treas. Reg. Section (c). 3 Treas. Reg. Section (h)(1). 4 See CCA (November 5, 2010). Chief counsel advice may not be cited as authority by a taxpayer, but it does evidence an IRS position on the matter. 5 Section 1382(b). 6 Section See CCA ( July 18, 2008). 8 For the cooperative to be included in the consolidated group for purposes of the matching rule, the patrons (consolidated group members) would need to directly own 80 percent of the cooperative shares by vote and value under Section 1504(a)(2). 9 See Section 1504(a)(1) for definition of includible entities in a consolidated group. 10 Also see, CCA ( July 20, 2007) (cooperative owned with the principal purpose to avoid purposes of intercompany transactions regs). For background on CCA see Pepper Hamilton LLP November 2007 Tax Update article, New Proposed Regulations May Eliminate the Tax Benefits of Captive Insurance Companies. In light of the CCA, consolidated groups that possess or seek to create wholly owned partnerships within a group that breaks consolidation should consider revisiting the structures to ensure they are not in violation of the anti-avoidance rules. They may want to consider documenting the business purpose for having the structures in place to make sure they do not have new federal income tax exposures, especially in light of the recent codification of the economic substance doctrine. 3

4 Recent Developments: Bonus Depreciation, Gift Card Guidance, and Rev. Proc Ellen McEl r o y m c e l r o y e p p e r l a w.c o m Anthony J. Balden baldena@pepperlaw.com There have been several recent tax accounting developments. The most significant is important new legislation that allows businesses to deduct 100 percent of the cost of qualifying property. Because the new provision has a limited time horizon, it is important to evaluate whether the new provision is applicable to recent capital acquisitions to take full advantage of this generous new provision. Additionally, for certain companies with significant gift card revenue, recently-released administrative guidance may allow deferral opportunities. Thus, both the new legislation and the new procedures may favorably impact cash flow, accelerating certain depreciation deductions and deferring certain gift card income. Although these disparate items have limited application, these items may provide a significant benefit for certain companies. A third item provides additional procedural guidance regarding the implementation of certain accounting method changes. Companies should consider these new rules to identify investment opportunities and achieve clarity in their treatment of various items. The following is a discussion of these new rules and an overview of potential implications. Bonus Depreciation Since 2002, Congress has enacted several provisions that permit accelerated cost recovery through depreciation ( bonus depreciation ) of capital asset purchases in an effort to encourage business investment. Prior to the recently-enacted legislation, certain qualified property was allowed 50 percent bonus depreciation in the year the property was placed in service rather than having property costs depreciated over a longer period as provided in the general provisions in Sections 167 and 168. As part of what the White House described as the largest temporary investment incentive in history, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of into law in December. Specifically, the legislation is designed to encourage additional investment in certain business property by providing 100 percent bonus depreciation. Combined with the extension of numerous other tax cuts and other provisions, the purpose of this legislation is to avoid having capital waiting on the sidelines, and the administration hopes it will spur growth in the economy. The new bonus depreciation deductions do not increase total deductions; the timing of when deductions are taken into account is simply accelerated. It is important to note that not all property qualifies for bonus depreciation. In general, qualified property is limited to (i) tangible property with a recovery period of 20 years or less, (ii) the original use of which began after December 31, 2007, (iii) which was acquired by the taxpayer in 2008, 2009, or 2010, and (iv) was placed in service before January 1, Special rules exist for certain types of property, such as computer software, water utility property, leasehold improvements, transportation property, and certain aircraft, and extensions of deadlines apply in some instances. Under the new bonus depreciation rules in Section 168(k)(5), a business placing qualified property in service after September 8, 2010, and before January 1, 2012 (again, with extended deadlines for certain property), may claim 100 percent bonus depreciation on the property. During a recent American Bar Association meeting, Treasury and IRS officials, speaking on their own behalf, discussed some of the issues that are expected to be addressed by the upcoming guidance. Of particular importance, the officials noted that additional guidance on bonus depreciation is expected shortly, perhaps as soon as the end of February. One interesting issue has arisen regarding whether companies may claim 50 percent bonus depreciation instead of claiming 100 percent bonus depreciation. If companies already have losses or little current income, then bonus depreciation deductions in the current year are less valuable. Section 168(k)(2)(D)(iii) currently only permits an election out of bonus depreciation on a class-byclass basis, thus, the statute may be interpreted as disallowing the smaller bonus depreciation. Also, some taxpayers have questioned the treatment of property acquired pursuant to binding contracts that meet the definition of qualified property but do not meet the post-september 8, 2010, requirement. The new binding contract rule is liberal, but application of the acquisition date requirement may restrict 4

5 TaxUpdate the availability of 100 percent bonus depreciation. The interaction of these provisions is subject to some debate. Assuming the property meets the other requirements of Section 168(k), a business acquiring property under a binding contract signed on September 1, 2010, could potentially claim 50 percent bonus depreciation, but there is some question whether it could claim 100 percent bonus depreciation. Future guidance is expected to definitively resolve this question. Finally, some questions remain regarding self-constructed property and whether such property is subject to the acquisition date requirements in Section 168(k)(5). Self-constructed assets are generally deemed to be acquired once construction begins. 3 To be eligible for 100 percent bonus depreciation, the property must have been acquired after Sept. 8, There is a safe harbor for purposes of the bonus depreciation provisions under which construction is not deemed to begin and, therefore, property is not considered acquired, until more than 10 percent of the costs of such property are incurred. 4 Bonus depreciation provides significant cost recovery acceleration for businesses, and taxpayers should be aware of this new provision and its limitations. We will continue to follow developments in this area and assist taxpayers in using these rules. Gift Card Guidance Gift card sales are a significant percentage of sales for many retailers, and they present a number of unique issues. Gift card issuers and gift card programs have encountered increased scrutiny by the IRS and at the state level in the last several years. The IRS has reviewed issuers and arrangements generally with a focus on income recognition timing, while states have looked to escheat laws to require surrender of unused gift card balances. Commentators have noted that issuers and arrangements, in turn, have become more complex, forming new arrangements and structuring to avoid escheat laws. Rev. Proc and Rev. Proc provide guidance on two key gift card issues: the treatment of gift cards issued for returned merchandise and gift cards issued by a third party. Often, returned merchandise entitles a customer to store credit or a gift card instead of a cash refund. In Rev. Proc , the IRS provides a safe harbor accounting method for the treatment of gift cards issued in exchange for merchandise returns. Under this safe harbor, a gift card issued for returned goods may be treated as payment of a cash refund in the amount of the gift card followed by a purchase of a gift card, allowing use of the income deferral provisions of Treas. Reg and Rev. Proc As such, a company may simultaneously reduce its income by the amount of the gift card and also defer income recognition through the deemed sale of the new gift card. By way of background, Section 451 requires income recognition when a payment is received, unless the income is properly recognized in another period under the taxpayer s accounting method. For accrual taxpayers, the year of income inclusion is determined under the all events test, which requires income recognition when all events have occurred that fix the right to receive the income and the amount can be determined with reasonable accuracy. 7 Important exceptions allow the deferral of advance payments for one or two years based on the taxpayer s recognition of payments under its accounting method for financial reporting purposes. 8 Treas. Reg (a)(1) defines an advance payment as any amount which is received in a taxable year by a taxpayer using an accrual accounting method for purchases and sales. Advance payments must be included in income when received or, as mentioned above, when included in gross receipts for purposes of financial statements or other reports, allowing for deferral of the income. 9 Rev. Proc provides additional rules allowing income deferral for advance payments. It sets forth a more detailed definition of advance payments, including payments for services, sales of goods, the use of intellectual property, and other items, and excluding items like rent, insurance premiums, and payments with respect to financial instruments. It also lists permissible methods of accounting for these advance payments, including immediate inclusion of the full amount and deferral based on Treas. Reg Rev. Proc notes an interesting dichotomy of treatment for merchandise returns. If merchandise is returned in exchange for a gift card, the seller does not have a fixed liability for purposes of Section 461, which also applies the all events test and a performance test for liabilities. 10 Conversely, if merchandise is returned for cash, the seller may immediately deduct the payment from its gross receipts. If the customer then uses the cash to purchase a gift card, the seller, if its accounting method allows, may defer the item from gross income under Treas. Reg or Rev. Proc To minimize disputes and to provide for a better matching of income and costs, Rev. Proc allows a taxpayer to treat gift 5

6 cards issued for returned goods as a payment of cash followed by the sale of a gift card. Taxpayers wishing to make this change may do so under the automatic consent procedures or under the advance consent procedures if a change to a proper accounting method is also required. Rev. Proc is effective for taxable years ending on or after December 31, Rev. Proc recognizes a more recent issue facing gift card issuers and modern business structures. Gift cards are often redeemed by a retailer that is not the issuer of the gift card. As discussed above, state escheat laws and other structuring concerns have led to gift card subsidiaries being formed that may or may not redeem the cards directly with customers. Rev. Proc notes other situations in which a cooperative or membership organization offers cards redeemable by any member entity and other arrangements allowing gift cards to be redeemed by related or unrelated parties. Significantly, Rev. Proc allows these entities to take advantage of special deferral provisions despite the fact another taxpayer actually redeems the gift card. Typical gift card arrangements allow the card issuer to hold the proceeds until the card is used. The seller of goods or services, pursuant to its arrangement with the gift card issuer, is obligated to accept the card for payment. The seller then seeks its share of the gift card proceeds from the card issuer. Rev. Proc notes that a taxpayer selling its own gift cards and a taxpayer engaging in an indirect issuance structure should be treated the same, and to accomplish this, Rev. Proc modifies Rev. Proc to include eligible gift card sales in the definition of advance payments. Eligible gift card sales arise when the issuer is primarily liable to the card holder until redemption or expiration, and the card is redeemable by an entity legally obligated to accept the card as payment. Rev. Proc also expands Rev. Proc s definition of financial statement to include the financial statement for a consolidated group. Notably, Rev. Proc expands the scope of Rev. Proc only, because Treas. Reg is limited to taxpayers selling their own goods. Rev. Proc adds several new examples to Section 5.03 of Rev. Proc , which further illustrate these new rules. Example 23 describes a corporation that operates department stores. It has several domestic subsidiaries with which it files a consolidated return, but it also has a foreign subsidiary that is not part of the consolidated return. Another unrelated corporation enters into a gift card arrangement with the consolidated group and the foreign subsidiary in which one of the domestic subsidiaries issues gift cards redeemable by the other domestic subsidiaries, the foreign subsidiary, or the unrelated entity. The issuing subsidiary reimburses the entity for its gift card sales and otherwise tracks the gift card sales and redemptions for recognition in its financial statements. Under these facts, the issuing subsidiary is entitled to defer the unredeemed balance of the gift cards. Example 24 describes a Subchapter S corporation that operates and manages restaurants. It owns a partnership or equity interest in some of the restaurants. The corporation administers a gift card program for the group in which it and the participating restaurants issue gift cards under the corporation s brand name that are redeemable by all participating restaurants. All participants must honor the gift cards, and the corporation must reimburse the restaurant for accepting the gift cards. The corporation recognizes the payments in revenues for its financial statements when the gift card is redeemed, and under these facts, the corporation is entitled to defer the unredeemed amounts. Finally, Example 25 describes a corporation operated for the benefit of domestic and international hotel franchisees. It collects fees and provides various services to the franchisees, including a gift card program. The corporation receives the proceeds from the sales of the gift cards, but it must reimburse the redeeming hotel. Because the corporation tracks sales and redemptions, is able to determine the recognition of revenues for its financial statements, and otherwise meets the requirements of Rev. Proc , the corporation is entitled to defer the unredeemed amounts. Rev. Proc also is effective for taxable years ending on or after December 31, Depending on the change made, a taxpayer may use either the automatic change procedures or the advance consent procedures. Some have questioned the propriety of Rev. Proc , noting that often gift cards are not materially different from traveler s checks. Especially with regard to Example 25 discussed above, a commentator noted that a card issuer who does not provide any good or service redeemable by the gift card only has an obligation to pay money when the card is redeemed. If treated as a traveler s check, then the money received by the card issuer is not includable in gross income. In general, however, both Rev. Proc and Rev. Proc have been welcomed by the industry for providing some 6

7 TaxUpdate clarity in this difficult area. Numerous gift card issues remain outstanding, including accounting for dormancy fees, treatment of cards subject to escheat, and many other matters, 11 and we will continue to follow these developments. Re v. Pr o c After years of adding new accounting method changes and continuing complexity in the area, Rev. Proc provides updated procedures for obtaining automatic consent for changes in methods of accounting. It modifies Rev. Proc and Rev. Proc for automatic changes and also Rev. Proc for advance consent procedures. A key change in Rev. Proc is to the definition of under examination, providing further accounting method change limitations. Changes in accounting methods are not allowed while a taxpayer is under examination. One new rule provides that the 120-day window which previously allowed changes in accounting methods during the 120-day period after an examination ended, even if a subsequent examination was begun will end early if the Office of Appeals refers a case back to agents for reexamination. In addition, if the Joint Committee on Taxation is reviewing an item, the taxpayer continues to be under examination, disallowing a method change. Other notable changes require a copy of certain method change requests to be filed with the IRS s Ogden, Utah, office in lieu of, instead of in addition to, a filing with the National Office, and special rules for audit protection. Rev. Proc provides that a taxpayer not otherwise eligible to file an accounting method change may request a change in accounting method without audit protection if the method to be changed is an issue under consideration by Appeals or a federal court. For substantive changes, Rev. Proc introduces several new rules and method changes, including matters with respect to: new safe harbor accounting methods for auto dealerships for retail sales facilities and treatment as resellers without production activities (as discussed in Rev. Proc , 16 and outlined in the November 2010 issue of Pepper Hamilton s Tax Update available online at publications_update.aspx?articlekey=1963.) advance payments received and their treatment under Rev. Proc , including the changes in Rev. Proc and Rev. Proc Section 179D deductions for installation of energy-efficient commercial building property certain California franchise tax liabilities new procedures for a Blue Cross and Blue Shield organization relating to unearned premiums and failed medical loss ratio requirements under Section 833(c)(5), and Section 481(a) adjustments for foreign partnerships or foreign divisions of domestic corporations. Rev. Proc is a long and very detailed document, changing numerous areas and aspects of automatic changes in accounting methods and advance consent for method changes. We encourage taxpayers to review this Revenue Procedure and to consult with their tax advisors regarding the new rules and their potential application to changes in accounting methods. En d n o t e s 1 Pub. L. No (2010). 2 Section 168(k)(2)(A). 3 See Section 168(K)(2)(E)(i). 4 See Treas. Reg (k)-1(b)(4)(iii)(2) I.R.B I.R.B Treas. Reg (a). 8 Treas. Reg (two years in certain circumstances) and Rev. Proc , C.B. 991 (only until the following year). 9 Treas. Reg (b)(1). 10 See Section 461(h), Treas. Reg (a)(2)(i). 11 I.R.S. Industry Director s Directive LMSB , Tier II Industry Director s Directive on the Planning and Examination of Gift Card/Certificate Issues in the Retail and Food & Beverage Industries #2 (Oct. 3, 2008) I.R.B C.B I.R.B C.B I.R.B

8 Pepper Hamilton s Tax Practice Group Federal and International Tax Issues Annette M. Ahlers ahlersa@pepperlaw.com Joan C. Arnold arnoldj@pepperlaw.com Anthony J. Balden baldena@pepperlaw.com James W. Barson barsonj@pepperlaw.com Steven D. Bortnick bortnicks@pepperlaw.com Gordon R. Downing downingg@pepperlaw.com W. Roderick Gagné gagner@pepperlaw.com Howard S. Goldberg goldbergh@pepperlaw.com Bryan D. Keith keithb@pepperlaw.com Timothy J. Leska leskat@pepperlaw.com Ellen McElroy mcelroye@pepperlaw.com Michelle Moersfelder moersfelderm@pepperlaw.com Paul D. Pellegrini pellegrinip@pepperlaw.com Lisa B. Petkun petkunl@pepperlaw.com Todd B. Reinstein reinsteint@pepperlaw.com Joan M. Roll rollj@pepperlaw.com Laura D. Warren warrenl@pepperlaw.com State and Local Tax Issues Philip E. Cook, Jr cookp@pepperlaw.com Lance S. Jacobs jacobsls@pepperlaw.com Employee Benefits Issues Jonathan A. Clark clarkja@pepperlaw.com David M. Kaplan kapland@pepperlaw.com Andrew J. Rudolph rudolpha@pepperlaw.com 8