Layla Asali Comments on Foreign Goodwill Regulations in Tax Analysts

"U.S. Treasury Outlines Road Not Taken in Foreign Goodwill Regs"
Tax Analysts
10.21.15

Layla Asali's comments during a D.C. Bar event in Washington, DC, were quoted in Tax Analysts. In recently proposed regulations, the U.S. Department of the Treasury decided to eliminate the eligibility of outbound transfers of foreign goodwill and going concern for tax-free treatment. Panelists, including officials from the U.S. Department of the Treasury and Internal Revenue Service, debated whether the proposed regulations were consistent with congressional intent and the extent to which the policy concerns extended beyond valuation disputes between the IRS and taxpayers. Asali questioned the policy choice of using section 367(a) to tax intangible property given the usage in both section 367(a) and (d) of the section 936(h)(3)(B) definition of intangibles.

The proposed regulations also replace the existing rule that limited the useful life of intangible property to 20 years with a useful life that includes the entire period during which exploitation of intangible property is expected to occur. Given the expansion of section 367(d) beyond identified intangibles to goodwill, Asali questioned how to apply this standard of a potentially indeterminate useful life. She said, "What kind of company is going to say that we expect our goodwill not to last?"

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