Compliance and reporting: recent developments and issues. 1 May 2013

Transcription

1 Compliance and reporting: recent developments and issues 1 May 2013

2 Disclaimer Ernst & Young refers to the global organization of 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 located in the US. This presentation is 2013 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 and its member firms expressly disclaim any liability in connection with use of this presentation or its contents by any third party. The views expressed by panelists in this webcast are not necessarily those of Ernst & Young LLP. Page 1

3 Circular 230 disclaimer Any US tax advice contained herein was not intended or written to be used, and cannot be used, for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code or applicable state or local tax law provisions. These slides are for educational purposes only and are not intended, and should not be relied upon, as accounting advice. Page 2

4 Today s presenters Carolyn Bailey Ellen Berger Jeff Ellsworth Elvin Hedgpeth Minde King Mike Medley Page 3

5 Agenda TY 2012 tax return reporting developments: Federal US reporting of foreign operations IRS service center compliance issues State Taxing authority audits impact on compliance and reporting Future tax return reporting developments Current developments in how work gets done Wrap-up Additional Q&A Page 4

6 TY 2012 tax return reporting developments federal

7 Form 8949 Sales and other dispositions of capital assets: New for corporations and partnerships to report sales and exchanges of capital assets Report transactions that would have been reported by corporations and partnerships on Schedule D or Schedule D-1 in prior years Allows IRS and taxpayer to reconcile amounts that were reported on Form 1099-B or 1099-S (or substitute statement) with the amounts reported on the return File with Schedule D for return including Forms 1040, 1065, 1065-B, 8865, 1120, 1120S, 1120-C, 1120-F, 1120-FSC, 1120-H, 1120-IC-DISC, 1120-L, 1120-ND, 1120-PC, 1120-POL, 1120-REIT, 1120-RIC, 1120-SF, and certain Forms 990-T, but not Form 1041 Page 6

8 Other business return reporting issues Schedule M-3 no substantive changes this year for Form 1120 and Form 1065 No separate payment card reporting requirements for gross receipts received via payment card (credit and debit cards) and third-party network payments for Forms 1120, 1120-S and 1065 Principal Business Activity Codes Forms 1120, 1065, and 1120-F revised and updated Form 1120, Schedule K new questions Form 1065, Schedule B, Schedule K-1 new questions Page 7

9 Schedule UTP Reporting threshold: Decrease in asset threshold for reporting uncertain tax positions from assets that equal or exceed $100m to assets that equal or exceed $50m Reporting no changes: Part I tax positions taken on 2012 return Part II tax positions taken in a prior tax year ( ) that have not been reported on Schedule UTP on a prior year return Page 8

10 Form 8886 New Q&A released by IRS providing guidance on requirements for filing a complete Form 8886 Penalties may be imposed for failure to submit complete disclosure Complete disclosure includes the following: Completed according to the instructions and regulations Describes the expected tax treatment and all potential tax benefits expected from the transaction Describes any tax return protection Describes the transaction in sufficient detail for the IRS to be able to understand the tax structure of the transaction and identify all parties involved Page 9

11 TY 2012 tax return reporting developments US reporting of foreign operations

12 International overview Legislative change Impact on attributes such as E&P, foreign tax credit (FTC), relevance of all attributes not just some Courts Readiness and how comfortable you are with as filed numbers Extraterritorial income (ETI) and the CBS case IRS updates to international forms and changes/updates to regulations Amendment to Reg. Section T and T Final Regs around use of controlled corporations to avoid Section 304 Forms 5471 and 8858 Page 11

13 Revised IRS instructions to Form tax year Revised instructions and revised Form 5471 Extension of the constructive ownership exception to filing Form 5471 for Category 3 and 4 filers under Treas. Reg. Section (e)(4)(iii) and (j)(2)(i), respectively, to Category 5 filers Code Section 6038(a)(4) gives the Secretary authority through issuing instructions to Form 5471 to require reporting by a US person treated as a US shareholder. The extension of the exception can only be applied to Form 5471s filed for years ending 31 December 2012 or later since the exception is added through the Form instructions, which apply starting with the Form 5471 revised December Page 12

14 Form 5471 other changes Expansion of Schedule G Reportable transactions: Applies to CFCs Need to also file Form 8886 Foreign taxes disqualified under Section 901(m) application Section 909 suspended taxes Keep in mind Section 6501(c)(8) must make sure these questions are correctly answered or risk the statute staying open Page 13

15 Form 8858 expanded Schedule G, dual consolidated loss Schedule G question 4 Asks if the foreign disregarded entity (DE) is a separate unit or part of a combined separate unit where the separate unit or combined separate unit have a dual consolidated loss (DCL) If yes, enter the amount of the DCL Schedule G questions 5a, 5b and 5c Question 5a asks whether the DCL was taken into account in computing consolidated taxable income Question 5b asks whether this was a permitted domestic use of the DCL Question 5c if it was not a permitted domestic use, asks whether the DCL was used to compute consolidated taxable income as provided under Reg. Section (d)-4; identify the amount contributed to cumulative register (beginning of the year) Make sure DCL certifications are matching what is disclosed on the Form 8858 Page 14

16 TY 2012 tax return reporting developments IRS service center compliance issues

17 Service center compliance issues Automated late filed 5471 penalty program Form 1042 Rejection of 1042-S not properly completed Audits of payors and payees by both service centers and international examiners Form 1120-F 8804 FAQ 18 Requests for EIN using SS-4, but tax return not subsequently filed Challenging 1065 s where there is some indicia of a foreign partner and no 8804 filed Remains available for delinquent filings FBARs Page 16

18 TY 2012 tax return reporting developments State

19 State overview State tax revenues have continued to rebound from the financial crisis Combination of spending cuts, some tax increases and increased enforcement has resulted in a more stable fiscal picture Some states have enacted tax cuts, and many governors and legislatures have proposed tax reductions Largest state budget challenge is rising Medicaid costs Medicaid enrollment and cost levels are a major issue for 2013, as state spending related to federal health care reforms comes online State expansions required by federal health reform will create stress in FY 2013 budgets Challenges for corporate tax functions Page 18

20 Rate changes for TY 2012 Connecticut Corporate tax surcharge of 20% for 2012 and 2013 Idaho Corporate income tax rate reduced from 7.6% to 7.4% for 2012 Indiana Corporate income tax rate reduced from 8.5% to 8.0% after 30 June 2012 and before 1 July 2013 Massachusetts Corporate excise tax rate reduced from 8.25% to 8.0% Pennsylvania Franchise tax rate reduced from 0.289% to 0.189% West Virginia Corporate income tax rate reduced from 8.5% to 7.75% Franchise tax rate reduced from 0.34% to 0.27% Page 19

21 Allocation and apportionment changes for TY 2012 California annual election for single sales factor (SSF) still available for 2012 Minnesota continued phase-in of SSF (3.5/3.5/93% for 2012) New Jersey begins phase-in of SSF (15/15/70% for 2012) New York City continued phase-in of SSF (20/20/60% for 2012) Utah continued phase-in of SSF (2012 = 10 x sales) Virginia begins phase-in of SSF for retailers for tax years beginning on or after 1 July 2012 Virginia continues phase-in of elective SSF for manufacturers Page 20

22 Other state developments affecting 2012 returns Combined reporting North Carolina Department of Revenue adopted regulations regarding the Secretary of Revenue s authority to adjust net income or to require a combined return Rhode Island pro forma combined reporting for 2012 Michigan CIT Schedule CRS Required Data for Combined Reporting Study (part of RI-1120C) Michigan CIT replaces the existing Michigan Business Tax (MBT) effective 1 January fiscal year filers required to file two short-period returns, one for each tax taxpayers can choose actual or annual method of filing Unitary and combined reporting Elimination of MBT NOLs Elimination of MBT credits ( certificated credits continue if taxpayer elects to continue to file MBT return until credits are exhausted) Page 21

23 Other state developments affecting 2012 returns NOLs Colorado limits amount to $250K for Illinois amended the deduction suspension to allow a deduction not to exceed $100,000, for a tax year ending on or after 31 December 2012 and prior to 31 December 2014 Wisconsin allows combined groups to share pre-2009 net business loss carryforwards incurred by group members, effective for tax years beginning after 31 December 2011, with certain limitations Tennessee related party add-backs Prior to 2012 taxpayers only had to disclose the existence of related party intangible expenses in order to claim a deduction on the excise tax return For tax years ending on or after 1 July 2012, taxpayers are required to file an application requesting permission to deduct intangible and related interest expenses Unless permission is granted, taxpayers will not be allowed to deduct these expenses Page 22

24 TY 2012: new state business return electronic filing mandates Taxpayer mandates Colorado corporations and partnerships (any tax return that includes an Enterprise Zone credit) Tennessee corporations Virginia corporations (e-file and e-pay) Preparer mandates Rhode Island corporations and partnerships Page 23

25 Taxing authority audits impact on compliance and reporting

26 IRS areas of emphasis impact on compliance and reporting Current IRS areas of emphasis impacting compliance and reporting: Uncertain Tax Position (UTP) Information Reporting and Withholding International Disclosures on Forms 8886 and 8275 Issue management strategies Audit coverage expansion: Mid-market taxpayers Partnerships and Subchapter S The tax preparation process should include consideration of issues potentially of interest to the IRS for two reasons: 1. More efficient it will cost significantly less in resources to assemble the information now rather than attempting to locate and analyze the needed information three or more years later after filing 2. The IRS has tightened its Information Document Request process promising to be more aggressive when information is not provided on time including threats to issue a summons Page 25

27 IRS areas of emphasis impact on compliance and reporting Identity issues that may be of interest to the IRS during compliance process: Issues you have that are areas of IRS focus Issues that were raised or considered in a prior examinations Any new material or significant issues, e.g., a major merger and acquisition Consider a pre-filing agreement or other process that will provide certainty and eliminate the need for a UTP disclosure For the issues remaining Associate the risk of a potential IRS issue in light of your current year fact pattern Consider materiality and uncertainty that are known to be a high risk Get a sense for the information the IRS will seek for the issues you believe at risk Look at the issue from the perspective of the IRS Page 26

28 Audit documentation examples R&D credit Review the information requested in published IDR s used in R&D examinations Foreign tax audits Keep documentation showing actions taken in challenging the foreign examination Foreign payments withholding at source If an IRS review of this area is likely, keep a run of all payments to foreign persons Transfer pricing Update transfer pricing documentation study Standard opening IDR Page 27

29 Future tax return reporting developments

30 What to expect for TY 2013 and future Impact of American Taxpayer Relief Act of 2012 State Extension through 2013 of credit for increasing research activities with technical changes to controlled group rules and when a trade or business changes hands Extension of 50% bonus depreciation through 2013 (2014 for certain long production period property and transportation property) Election to accelerate AMT credits in lieu of bonus also extended Proposed alternatives to corporate income tax Continued suspension or limitation of NOL usage Combined reporting to increase or stall Economic nexus Phase-in of SSF Repeal of Multistate Tax Compact Page 29

31 Tangible property regulations Final regulations expected early summer Government focused on portions of the regulations: De minimis rule, dispositions, routine maintenance safe harbor, and clarifying examples Compliance in 2014 will be mandatory with optional staging of compliance available in 2012 and 2013 Consider Section 263A compliance Most taxpayers considering adequacy of their Section 263A compliance for self-constructed assets and inventory Possibility of automatic method changes government considering for purposes of implementing the regulations Potential benefit as taxpayers review 263A Window periods for filing accounting method changes while under IRS exam Page 30

32 New proposed Gain Recognition Agreement (GRA) compliance regulations On 31 January 2013, IRS issued new proposed regulations that would amend the existing rules under 367(a) and 6038B governing the consequences to US persons for failing to file GRAs and related documents New proposed regulations provide: Changing the requirement for taxpayers to establish reasonable cause when seeking relief from gain recognition after failing to properly file a GRA to a standard based on willful failure. Now require limited Form 926 ( Return by a US Transferor of Property to a Foreign Corporation ) reporting with all GRAs. 6038B penalty would now apply to GRAs and associated documents. Current reasonable cause standard would continue to apply to US transferors seeking relief from the 6038B penalty. Page 31

33 State TY 2013 changes California and Pennsylvania have mandatory SSF for most businesses Indiana corporate income tax rate reduced from 8.0% to 7.5% after 30 June 2013 and before 1 July 2014 Minnesota, New Jersey, New York City, Utah, and Virginia continue phase-in of SSF Oregon corporate excise tax rate change 6.6% of the first $10 million of taxable income and 7.6% of taxable income greater than $10 million for 2013 Pennsylvania franchise tax rate reduced from 0.189% to 0.089% (set to expire after 2013) West Virginia corporate income tax rate reduced from 7.75% to 7.0% West Virginia franchise tax rate reduced from 0.27% to 0.20% (tax fully phased out after 2014) Page 32

34 Current developments: how work gets done

35 100 years of the modern tax return Gather data put on form Gather data put on form Post WW II first computerized accounting system 1973 first large scale (ERP) system introduced 1991 introduction of World Wide Web IRC was 400 pages 1969 computerized tax returns 1981 personal computer for business introduced IRC is 16,000 pages, 5.6m words th Amendment passes 1939 code 1954 code M corporate returns filed 1986 code 2002 SOX enacted: impact on tax accounting 277m corporate returns filed Page 34

36 Key focus areas how work gets done Connection to specialized tax technical expertise Document sharing and collaboration Monitoring of tax and legislative developments Secure portal for information exchange and access to deliverables Proactive identification of tax planning opportunities and risk areas Visibility and accessibility into the process Ongoing connection to subject-matter professionals in technical areas Centralized compliance and reporting calendar Workflow enabled processes with sign-off Process and technology development Monitor and continuous improvement Meaningful and impactful Integration of processes Automation of baseline activities Facilitate technical review Leverage technology to enable Monitoring of compliance status and key performance indicators (KPIs) Regular reporting to key stakeholders (value focused) Monitor technology changes in marketplace leverage Continuous improvement part of DNA Page 35

37 Resourcing tax functions Companies are challenging and realigning their resources Outside tax resources Internal non-tax resources Shared service resources Finding the right balance Internal corporate tax resources Key considerations: Core versus non-core Flexibility and scalability Budget and planning Fixed and variable cost Quality and risk Page 36

38 Wrap-up Compliance is the end and the beginning of an effective tax reporting and control framework End of the end-to-end, record-to-report process An integral part of the tax life cycle (planning, accounting, compliance and controversy) Robust, well-managed compliance is the foundation for adding value to the business Today s and tomorrow s technology tools provide opportunities to create a well-managed compliance function using limited resources Page 37

39 Questions and answers

40 Thanks for participating