What s News in Tax Analysis That Matters from Washington National Tax

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1 What s News in Tax Analysis That Matters from Washington National Tax Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance This article addresses the importance of using proper U.S. tax accounting methods to compute a foreign corporation s earnings and profits ( E&P ) from both a planning and compliance perspective. The article also highlights accounting method adoption and change procedures for foreign corporations and summarizes some common accounting methods used by foreign corporations in computing E&P. November 24, 2014 by Carol Conjura, Colleen O Connor, Eric Lucas, Caren Shein, and David Chan, Washington National Tax The E&P of a foreign corporation (including a controlled foreign corporation or CFC ) are significant to its U.S. shareholders for both federal income tax planning and compliance purposes. A foreign corporation is required to compute its E&P, including electing methods of accounting for various items, under U.S. tax principles. From a planning perspective, the accounting methods a foreign corporation uses to compute its E&P may impact, among other things, its U.S. shareholders subpart F income inclusions and the effective foreign tax rate on distributions and inclusions. Similar to the way accounting method changes can either increase or decrease a domestic corporation s taxable income through the catch up section 481(a) adjustment, a change to a foreign corporation s accounting methods can either increase or decrease its E&P. It may be beneficial to reduce a foreign corporation s E&P, for example, to reduce a subpart F income inclusion 1 in a particular year and/or to increase foreign tax credits associated with a distribution or inclusion. In other cases, reverse planning is preferable to the traditional planning. For example, if a U.S. shareholder has expiring foreign tax credits, it may be beneficial to increase E&P and thus a subpart F inclusion or distribution. 1 See section 951(a). entity. All rights reserved. The KPMG name, logo and cutting through complexity are registered trademarks or trademarks of KPMG International. NDPPS

2 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 2 The use of proper accounting methods to compute E&P is also a key aspect of a foreign corporation s tax reporting and compliance requirements. Certain U.S. shareholders of foreign corporations are required to file Form 5471, Information Return of U.S. Persons With Respect To Certain Foreign Corporations, with their federal income tax returns. 2 Among the items required to be reported on Form 5471 is the foreign corporation s E&P. The use of improper methods to compute E&P might result in the U.S. shareholder having failed to substantially comply with information return reporting requirements, potentially leaving the statute of limitations on the U.S. shareholder s entire tax return open until at the earliest three years after the defects are cured. 3 If a foreign corporation is using an improper method of accounting, by filing an accounting method change application to correct the use of an improper method, the U.S. shareholder might mitigate this significant compliance risk and also secure audit protection for IRS exam purposes. The methods of accounting used for E&P purposes may also have a material effect on U.S. financial reporting obligations with respect to income taxes under ASC 740, including the reporting of uncertain tax positions. Tax Planning A foreign corporation in which a U.S. shareholder owns 10 percent of the voting stock must maintain multi-year pools of E&P and taxes ( post-1986 undistributed earnings and post-1986 foreign taxes ), which are used to compute foreign tax credits associated with dividend distributions and subpart F inclusions. 4 When the foreign corporation distributes a dividend to the U.S. shareholder, or in the case of a CFC an amount is required to be included in gross income under subpart F, the U.S. shareholder is treated as having paid a portion of the foreign corporation s taxes, computed as follows: foreign taxes deemed paid = dividend or subpart F inclusion x post-1986 foreign taxes 5 post-1986 undistributed earnings Unless otherwise indicated, section references are to the Internal Revenue Code of 1986, as amended (the Code ) or the applicable regulations promulgated pursuant to the Code (the regulations ). 2 Sections 6038 and 6046 impose the reporting obligations. 3 See section 6501(c)(8). 4 Section 902. Note that lower-tier foreign corporations indirectly owned by a U.S. shareholder also are required to maintain pools of E&P and taxes if they meet additional ownership requirements. 5 Section 902(a). See also section 960(a).

3 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 3 A dividend or subpart F inclusion (including section 78 gross-up 6 ) is added to any other foreign source income at the U.S. shareholder level and associated foreign taxes are combined with other foreign taxes that the U.S. shareholder has paid or accrued during the year. The shareholder then determines its allowable foreign tax credit for the year under section 904, which limits the allowable credit to the amount of U.S. tax that the shareholder would pay on foreign source income absent a foreign tax credit. Stated as a formula, the maximum foreign tax credit that a taxpayer may claim in a particular year is: foreign source taxable income worldwide taxable income x pre-credit U.S. tax on worldwide taxable income Planning to increase or reduce E&P may have a significant impact on both the amount of a distribution or inclusion and the amount of foreign tax credits that a U.S. shareholder may be entitled to claim. When a U.S. shareholder is considering repatriating earnings from a foreign corporation, implementing a method change that decreases E&P (defer income/accelerate deductions) prior to making the distribution from the foreign corporation might increase the foreign taxes deemed paid and generate additional credits. 7 Alternatively, when a U.S. shareholder has expiring foreign tax credits, a method change that increases current E&P (accelerate income/defer deductions) prior to making a distribution may result in that distribution carrying less deemed paid foreign tax credits, which might enable the U.S. shareholder to tap into its expiring foreign tax credits. 8 With respect to subpart F income, inclusions are limited by current year E&P. A method change that reduces E&P may reduce the amount of subpart F income a U.S. shareholder is required to include, which might be helpful if the shareholder is unable to offset the inclusion 6 A U.S. shareholder must report foreign taxes deemed paid with respect to a subpart F inclusion or dividend as additional income for U.S. tax purposes. See section The increase in the effective tax rate on the distribution or inclusion arises because foreign source taxable income and thus foreign tax liability remains constant, while the amount of E&P that may be distributed and that is included in post-1986 undistributed earnings decreases. 8 The reduction in the effective tax rate on the distribution or inclusion arises because foreign source taxable income and thus foreign tax liability remains constant, while the amount of E&P that may be distributed and that is included in post-1986 undistributed earnings increases.

4 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 4 with foreign tax credits. A shareholder may be unable to offset its U.S. tax liability on foreign source income, for example, if foreign taxes paid or deemed paid are less than U.S. tax liability, or if it has current or prior year losses or an overall foreign loss recapture account. 9 Tax Reporting and Compliance As noted above, the use of proper accounting methods to compute E&P is also important from the standpoint of tax compliance. Proactively filing an accounting method change application to discontinue an improper method would: (1) reduce exposure for a U.S. shareholder s federal income tax return to be subject to an extended statute and (2) provide audit protection under the voluntary accounting method change procedures for prior years. As previously discussed, U.S. shareholders of certain foreign corporations are generally required to file Form 5471 annually for the foreign corporation. 10 The Form 5471 generally requires that a variety of information about the foreign corporation be provided, including the computation of E&P. 11 As a preliminary matter, failure to provide information as required on the information return can result in monetary penalties and/or loss of foreign tax credits. 12 More significantly, recent changes to the rules for determining the statute of limitations on assessment and collections impose stiff penalties for failure to report information as required under section The effect of failing to substantially comply with reporting requirements for a foreign corporation (potentially including the computation of E&P) generally is to extend the statute of limitations for the U.S. shareholder s entire tax return. 13 If the taxpayer can show reasonable cause for the failure, only the items on the return related to that failure remain open. 14 It remains somewhat unclear whether computing E&P under improper accounting methods (i.e., those that do not comply with U.S. tax law) might be considered a failure to substantially comply with reporting requirements or whether a taxpayer could avail itself of the reasonable cause exception in the statute. 9 See e.g., sections 172 and 904(f). 10 Sections 6038 and Section (f). 12 Section (k). 13 Section 6501(c)(8)(A). Changes to this provision were most recently made by the HIRE Act (P.L ) enacted on March 18, Section 6501(c)(8)(B).

5 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 5 The continued use of improper methods for computing E&P perpetuates exposure to an IRS exam-imposed method change. In this case, reviewing a foreign corporation s accounting methods and voluntarily filing applications to correct any improper methods before the IRS discovers them on examination would provide audit protection for prior years. Audit protection prevents IRS exam from making adjustments (in this case to E&P) in years prior to the year the method change is made. 15 Similar to a domestic corporation that changes its method and takes the resulting unfavorable section 481(a) adjustment into account prospectively over four tax years, foreign corporations likewise take any resulting increase to E&P as a section 481(a) adjustment over four tax years. In addition, if there are optional permissible methods of accounting for an item, changing a method prior to an exam insures that the taxpayer rather than the IRS can select the most preferable among the available optional methods. Adopting or Changing a Method of Accounting of a Foreign Corporation Section 964(a) and the regulations thereunder provide a three step process for computing a foreign corporation s E&P. First, a profit and loss ( P&L ) statement is prepared for the year from the foreign corporation s local books maintained for purposes of reporting to its U.S. shareholder(s). Next, adjustments are made to the P&L statement for certain items to conform to U.S. GAAP 16 and to eliminate any unacceptable practices from the P&L statement. Lastly, adjustments are made to conform the P&L statement to U.S. tax principles, including any adjustments necessary to reflect U.S. tax accounting methods permitted under section The third step is where accounting methods come into play. Adjustments to a foreign corporation s P&L statement to conform to U.S. GAAP and/or U.S. tax principles are only required to the extent the 15 Rev. Proc , section 9; Rev. Proc , section The specific accounting adjustments required to conform a foreign corporation s P&L to accounting principles generally accepted in the U.S. are described in section (b). 17 Section (a)(1). The specific adjustments required for U.S. tax purposes include methods of accounting consistent with the requirements of Section 446 and the regulations thereunder; computing inventory in accordance with sections 471 and 472, as applicable; determining depreciation under section 167 or section , as applicable; any applicable elections made under the Internal Revenue Code and Treasury Regulations; and tax years determined in accordance with section 441. Section (c)(1).

6 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 6 adjustments are material. 18 While the threshold for materiality is not specifically defined, the regulations explain that materiality depends on the facts and circumstances, including the amount of the adjustment, its size relative to the general level of the corporation s total assets and annual profit or loss, the consistency with which the practice has been applied, and whether the item to which the adjustment relates is of a recurring nature. If it is determined that a foreign corporation s tax adjustments are material, the foreign corporation is required to use proper tax accounting methods. The rules for adopting a method of accounting for a foreign corporation are slightly different than those that apply to domestic entities. Whereas a domestic entity generally adopts methods in its first tax return, or the first time it incurs a certain item, accounting methods are generally adopted by a foreign corporation for the tax year in which its E&P becomes significant for U.S. tax purposes. 19 The regulations under section 964 provide a non-exclusive list of events that cause a foreign corporation s E&P to be significant for U.S. tax purposes: 20 The foreign corporation makes a distribution to its shareholders with respect to its stock; An amount is includible in gross income with respect to such corporation under section 951(a); An amount is excluded from subpart F income of the foreign corporation or another foreign corporation by reason of section 952(c); Any event occurs making the foreign corporation subject to tax under section 882; A foreign corporation s controlling domestic shareholders first use the tax book value (or alternative tax book value) method of apportioning interest expense under section 864(e)(4); and 18 Section (a)(2). 19 Section (c)(6) provides that action by or on behalf of a foreign corporation to make an election or to adopt a method of accounting must be taken no later than the due date (including extensions) of the return for a controlling domestic shareholder s first tax year with or within which ends the foreign corporation s first tax year in which the computation of its E&P is significant for U.S. tax purposes with respect to its controlling domestic shareholders. 20 Section (c)(6).

7 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 7 A sale or exchange of the foreign corporation s stock by a controlling domestic shareholder that results in the recharacterization of gain under section A foreign corporation s E&P does not become significant merely because an information return (Form 5471) is filed that reflects accounting methods in the computation of E&P. A foreign corporation may adopt an accounting method at any time prior to its E&P becoming significant if the controlling U.S. shareholder(s) so chooses there is no requirement to wait until E&P is significant. However, once the E&P is significant, proper methods for computing E&P are required for material items. To properly adopt tax accounting methods that require an affirmative election or statement, the controlling U.S. shareholder must do so by the due date of the return for the year in which the foreign corporation s E&P becomes significant. 21 If no action is taken for that year, the foreign corporation will be deemed to have adopted the methods reflected in its books and records where U.S. taxable income or tax liability were not directly affected, or whatever method was used in computing E&P if E&P had an effect on U.S. taxable income or tax liability. 22 It is not uncommon for a controlling U.S. shareholder to be unaware that a significant event may have occurred that results in accounting methods being adopted by the CFC. For example, a controlling U.S. shareholder s use of the tax book value method of apportioning interest expense is one of the more common computations that causes a foreign corporation s E&P to become significant. In that situation, the foreign corporation would have adopted the accounting methods it used in computing E&P for 21 The controlling domestic shareholders of a controlled foreign corporation are its controlling U.S. shareholders. Controlling U.S. shareholders are defined as those U.S. shareholders (as defined in IRC section 951(b) or section 953(c)) who, in the aggregate, own (within the meaning of section 958(a)) more than 50 percent of the total combined voting power of all classes of stock of the foreign corporation entitled to vote and who undertake to act on the foreign corporation s behalf. For a 10/50 corporation, the controlling domestic shareholders are the majority domestic corporate shareholders. The majority domestic corporate shareholders are those corporations that own 10 percent or more of the voting stock of a 10/50 corporation (or the first-tier foreign corporation that is a member of the same qualified group as the 10/50 corporation), that in the aggregate, own directly or indirectly more than 50 percent of the combined voting power of all of the voting stock of the 10/50 corporation that is owned directly or indirectly by all domestic corporations that own 10 percent or more of the voting stock of the 10/50 corporation (or a relevant first-tier foreign corporation). See section (c)(5). 22 Section (c)(4)(ii).

8 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 8 that year, regardless of whether the controlling U.S. shareholder knew that use of the tax book value method caused the CFC s E&P to become significant (as described above, book methods are generally used to compute E&P). If detected on IRS examination, and if the book methods are not permissible tax methods, the foreign corporation would be treated as having adopted improper methods and the U.S. shareholder could have exposure for potentially understating income or overstating foreign tax credits in the years under exam. If the U.S. shareholder caught the oversight before it could be discovered on examination, it could request accounting method changes to correct the error. Once methods are adopted, they cannot be corrected simply by amending returns or restating E&P. While the rules for adopting methods vary for domestic and foreign corporations, the procedures for changing accounting methods are the same. Like domestic taxpayers, foreign corporations change accounting methods by filing Form 3115 either under the automatic consent (Revenue Procedure ) or advance consent (Revenue Procedure 97-27) procedures, depending on the particular type of change requested. The controlling U.S. shareholder of the foreign corporation files the Form 3115 on the foreign corporation s behalf. Foreign corporations are subject to the same terms and conditions and restrictions placed on domestic corporations in terms of filing method change applications, including those applicable to a taxpayer under IRS examination. Like domestic taxpayers, foreign corporations can rely on the window periods and other provisions that enable taxpayers to file accounting method change applications while under examination, and are subject to the same restrictions on filing where the method to be changed is an issue under consideration. 23 The definition of issue under consideration, however, is much broader for a foreign corporation. A foreign corporation s method of accounting for an item is an issue under consideration in the exam if any of the corporation s controlling U.S. shareholders receives notification that the treatment of a distribution or deemed distribution from the foreign corporation, or the amount of its E&P or foreign taxes deemed paid, is an issue under consideration. 24 Thus, any time a foreign corporation s E&P is the subject of a controlling U.S. shareholder s examination, the taxpayer will not be permitted to request a voluntary accounting method change unless the IRS examining agent consents to the change. Thus, a change 23 Rev. Proc , I.R.B. 330, Section Id. at Section 3.09(4).

9 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 9 that is taxpayer favorable could likely be requested in this situation, but in the case of a method that is improper and creates tax exposure, the examining agent would not likely consent, and would have the opportunity to impose the change in the earliest year under exam. Given the broad definition of issue under consideration, care should be exercised in determining whether a foreign corporation could obtain consent to file an application to change its method under the voluntary procedures while under examination. More importantly, it is preferable to be proactive in cases in which the IRS is not reviewing the calculation of E&P and make any changes to E&P methods at that time. Common Accounting Method Changes The accounting methods that are required for a foreign corporation will depend largely on the type of business it conducts. For example, foreign corporations that engage in manufacturing activities will likely have inventories and fixed assets, while those engaged in providing services will need to determine the appropriate methods of reporting income and expenses. The following is a brief summary of the more common types of accounting methods used by foreign corporations: Advance payments Accrual method taxpayers may defer the recognition of advance payments for up to one year for such items as goods, services, licenses of software, use of intellectual property and gift cards using the Deferral Method under Revenue Procedure The revenue procedure also permits taxpayers using the Deferral Method to change to a method of including the entire advance payment in income upon receipt ( Full Inclusion Method ). Income recognition Accrual method taxpayers recognize income in the year the right to income is fixed and determinable (the all-events test). However, many taxpayers frequently recognize income before their right to it fixes (e.g., amounts are subject to a customer dispute or the taxpayer is not entitled to invoice its customer until certain milestones are met). Under a proper accrual method, a foreign corporation would report income in the year the right to income is fixed. Depreciation/Amortization Foreign corporations are required to depreciate tangible property using recovery periods provided under the Alternative Depreciation System (ADS) because their property is used

10 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 10 predominately outside the United States. However, many foreign corporations may be following their book depreciation methods for tax purposes, may not be allocating building (real property) related costs to shorter lived tangible personal property when appropriate or may be improperly recovering assets using the General Depreciation System (GDS) applicable to domestic assets. In addition, many foreign corporations may not be claiming or properly claiming amortization for intangible assets, including goodwill. Tangible property expenditures Like their domestic counterparts, foreign corporations will also need to determine the treatment of costs incurred for tangible property under the recently issued final regulations under sections 162, 168 and 263(a). The regulations are effective for tax years beginning in 2014, and address the costs to acquire, improve and dispose of tangible property. Inventory Uniform Capitalization Foreign corporations that produce or resell inventory are subject to the uniform capitalization rules under section 263A. Many foreign corporations that follow their book methods for inventory do not calculate section 263A costs. In addition to methods that are provided in the regulations under section 263A, foreign corporations are also permitted to use the U.S. Ratio Method described in Notice In particular, when reverse planning is desirable, the uniform capitalization rules provide optional methods that permit the capitalization of costs that are not required to be capitalized, provided that such treatment does not result in a material distortion of income. Prepaid expenses Certain short-term liabilities may be treated as incurred when paid using the 12-month rule under section 1.263(a)- 4(f), rather than deducted over the 12 month term of the benefit. Examples include prepaid insurance premiums and prepaid warranty/service contracts (contracts entered into in connection with items purchased or leased such as office equipment, computers and software). Certain other types of prepaid expenses are eligible for acceleration by use of the 3.5 month rule in section (d)(6)(ii). Under this rule, a taxpayer is permitted to deduct an amount when paid provided the taxpayer reasonably expects services or property relating to the payment to be provided within 3.5 months of the payment date. Examples include prepaid postage as well as contracts to provide goods or services when all of the goods or services

11 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 11 specified in the contract will be provided within 3.5 months of payment. Functional Currency - Section 985 requires taxpayers and qualified business units to make determinations with respect to federal income tax in the taxpayer s functional currency. A U.S. resident s functional currency is generally the U.S. dollar, or in the case of a qualified business unit, the currency of the economic environment in which a significant part of the unit's activities are conducted and which is used by the unit in keeping its books and records. 25 A change in functional currency may be made using the automatic consent procedures, depending on the taxpayer s particular facts. Compensation related liabilities - Liabilities for bonus, vacation pay and associated payroll taxes are deductible in the year employees provide the underlying services if certain conditions are met. For bonuses and vacation pay liabilities, the liability must be fixed within the tax year (meaning that there can be no contingencies placed on the ability to receive a bonus or vacation pay), the amount must be determinable with reasonable accuracy, and the compensation must be received and includible in the employee s income no later than 2.5 months following the end of the tax year in which the services are provided. The liability for the associated payroll tax will be treated as fixed to the extent the liability for the bonus or vacation pay to which the tax is associated is fixed. Deductions for the payroll tax are permitted under the recurring item exception. With respect to bonuses, in many cases, taxpayers prematurely deduct bonus amounts paid, focusing on the 2.5 month rule rather than whether a fixed liability exists at the time the liability is deducted. Taxpayers frequently overlook the discretionary nature of their bonus plans, or whether employees must be employed on the date of the bonus payment. In addition, taxpayers follow their book accrual for vacation pay and bonuses and do not take into account whether such amounts should be treated as deferred compensation. Finally, the application of the rules of section 404A for foreign deferred compensation plans and properly adopting or changing to one of the optional methods therein (reserve or funded plan methods) should be considered. 25 Section (b).

12 Foreign Corporations: Use of Accounting Methods in E&P Planning and Compliance page 12 Software development. While the cost of acquiring software is capitalized and amortized under section 167, costs incurred to customize or develop software programs for specific application in a taxpayer s business may be deducted in accordance with Revenue Procedure Software development activities are often performed by third party consultants who take a purchased software application (i.e., off-the-shelf software) and customize it according to a company s particular needs. Frequently, the costs to develop or customize the software are added to the cost of the underlying software and are recovered over 36 months beginning when the software is considered placed in service. However, the costs associated with developing software for internal use are eligible for current deduction under section 162. Alternatively, in cases where a taxpayer seeks to increase its foreign subsidiary s E&P, Revenue Procedure permits taxpayers to capitalize and amortize software development costs over a period 36 or 60 months. What's News in Tax is a publication from the Washington National Tax practice of KPMG LLP ( KPMG ) that contains thoughtful analysis of new developments and practical, relevant discussions of existing rules and recurring tax issues. The information contained in this article 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. This article represents the views of the author or authors only, and does not necessarily represent the views or professional advice of KPMG LLP.