Monthly Tax Roundup (Volume 2, Issue 3)
This month's roundup features coverage of some major judicial, regulatory, and Internal Revenue Service (IRS) developments. In the courts, we discuss the 3M transfer pricing decision, as well as an interesting partnership decision coming out of the U.S. Tax Court. We also cover the latest guidance issued under the Inflation Reduction Act (IRA), as well as IRS developments with respect to the Compliance Assurance Process (CAP) program and the Appeals process.
"The tax code is like daytime television — almost anything done to it would improve it." – George Will, Commentator
A Divided Tax Court Upholds the Blocked Income Regulation
The U.S. Tax Court has finally issued its long-awaited opinion in 3M, with nine of 17 Tax Court judges concluding that the section 482 regulation on the treatment of foreign legal restrictions was valid. 3M Co. & Subsidiaries v. Commissioner, 160 T.C. No. 3 (2023). Eight judges dissented on several grounds, reflecting deeply divided views on the application of administrative law principles and the reach of the IRS's authority under section 482. Six opinions were issued in the case, with no opinion attracting a majority of the Tax Court.
3M disputed the IRS allocation of royalty income from a 3M Brazilian affiliate (3M Brazil) to its U.S. parent under section 482. The parties agreed that the IRS allocation exceeded the amount of royalties that 3M Brazil could have legally paid to its U.S. parent under Brazilian law in effect at the time. The IRS disregarded the Brazilian legal restrictions when allocating income from 3M Brazil, relying on Treas. Reg. § 1.482-1(h)(2) (the so-called blocked income regulation). There was no dispute that the Brazilian legal restrictions at issue failed to meet some of the requirements imposed by Treas. Reg. § 1.482-1(h)(2). 3M's challenge hinged on whether the regulation was valid.
Whether Judicial Precedent Blocked Treas. Reg. § 1.482-1(h)(2)
The central area of disagreement among the Tax Court judges was the interpretation of judicial precedent that pre-dated the promulgation of the blocked income regulation. A line of cases had disallowed allocations under section 482 (or predecessor statutes) where a legal restriction prohibited the payment or receipt of income. In Commissioner v. First Security Bank of Utah, N.A., the Supreme Court held that a section 482 allocation was improper when a federal banking statute barred the taxpayer from receiving the income at issue. See 405 U.S. 394 (1972). Following First Security, other courts disallowed section 482 allocations in similar situations, such as when Spanish law prohibited a Spanish affiliate from making outbound royalty payments and when foreign price controls required re-selling crude oil to affiliates at below-market rates. See Procter & Gamble Co. v. Commissioner, 95 T.C. 323 (1990), aff'd, 961 F.2d 1255 (6th Cir. 1992); Exxon Corp. v. Commissioner, T.C. Memo. 1993-616, aff'd sub nom., Texaco, Inc. v. Commissioner, 98 F.3d 825 (5th Cir. 1996). 3M argued that First Security and its progeny controlled the outcome of its dispute.
Judge Morrison, who authored the Tax Court's plurality opinion, disagreed. The Tax Court upheld the regulation largely based on an analysis of its validity under the Chevron standard. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). As part of its Chevron step one analysis — to determine whether Congress's intent was clear from the statute — the court examined First Security and related cases. If First Security had held that section 482 was unambiguous and foreclosed allocations of income that a taxpayer could not legally receive, then that would be the end of the matter. Congress's intent is clear from the terms of the statute and a conflicting agency interpretation cannot stand.
The Tax Court, however, concluded that the holdings in the prior cases did not follow from the courts' construction of the unambiguous terms of section 482 itself. The court focused on First Security, interpreting the Supreme Court's "core reasoning" in that case as based on a then-effective regulation (which Treasury was free to (and did) change), not the plain meaning of section 482. As such, the prior judicial precedent did not foreclose the interpretation the IRS adopted in the blocked income regulation. Moving on to step two of the Chevron analysis, the Tax Court concluded that Treas. Reg. § 1.482-1(h)(2) is a reasonable interpretation of section 482.
Several Tax Court judges dissented, siding with 3M's interpretation of the case law. Judge Buch interpreted First Security and related cases as holding that "blocked income cannot be taxed," and thus a regulation resulting in the taxation of blocked income exceeds the Commissioner's authority under section 482. Judge Buch acknowledged that in First Security, the Supreme Court did not use the "magic word" for Chevron purposes — "unambiguous" — but nonetheless interpreted that decision (and others that came after) as holding that the Commissioner's power under section 482 does not extend to allocating income that cannot be paid or received. Judge Pugh also authored a dissenting opinion, similarly concluding that Treas. Reg. § 1.482-1(h)(2) is invalid because it conflicts with judicial precedent.
Section 482's "Commensurate with Income" Standard
Another area that got the Tax Court's attention in 3M is section 482's directive that the income from a transfer or license of intangibles "shall be commensurate with the income attributable to the intangible." The "commensurate with income" standard was added to section 482 in 1986 and as such, was not effective in First Security or subsequent cases dealing with blocked income. Judge Morrison pointed to this amendment as another reason why First Security and its progeny were not determinative in the present dispute. Judge Morrison also disagreed with 3M's view of a limited purpose behind the commensurate with income standard, noting several times that "Congress used remarkably broad wording" when it amended section 482 in 1986.
In her concurrence, Judge Copeland leaned heavily on the commensurate with income standard, concluding that it supported (and indeed required) the IRS allocation in 3M, irrespective of the blocked income regulation. In Judge Copeland's opinion, with the 1986 amendment to section 482, Congress imposed a new standard for determining the arm's length payment for intangibles, and that new standard could not coexist with a "strict adherence" to First Security. The dissenting judges, by contrast, are of the view that the commensurate with income standard is irrelevant to the 3M dispute. They explained that nothing in that standard refers to blocked income, and nothing in the legislative history suggests that Congress intended to address blocked income when it amended section 482.
Procedural APA Challenges
3M had also challenged the validity of Treas. Reg. § 1.482-1(h)(2) on procedural grounds, arguing that the regulation was not promulgated in accordance with the APA's notice and comment requirements. Judge Morrison's plurality opinion summarily dismissed 3M's arguments. It concluded that Treasury's rationale for the rule could be discerned from the regulation itself and principles underlying section 482, which the court found met the "satisfactory explanation" requirement. In addition, Judge Morrison found that public comments 3M pointed to were largely insignificant and thus required no response from Treasury.
Judge Toro's dissent concluded that the regulation was invalid on procedural grounds. He explained that Treasury offered no explanation for the blocked income regulation — no explanation for why the rule was necessary, the policy behind it, or how it related to the statute. Faced with Treasury's silence, Judge Toro disagreed with the plurality opinion that an explanation for the rule could be inferred or constructed from the regulation or anything in the rulemaking record. Further, Judge Toro's dissent diverged from the plurality opinion with respect to the significance of public comments submitted in connection with the blocked income regulation. He found that public comments pointing out the proposed rule's conflict with existing judicial precedent and raising questions about Treasury's authority to issue the rule were "quintessential 'significant comments'" requiring a response from Treasury.
Impact Going Forward
Given the deeply divided views expressed by the Tax Court, it seems unlikely that Judge Morrison's plurality opinion in 3M represents the last word on the matter. The substantive issue as applied to legal restrictions in Brazil, however, may have limited impact in the future as a result of pending Brazilian legislation that would adopt the arm's length standard into law, which may affect the restrictions on the payment of related-party royalties.
Tax Court Holds that Section 751(a) Does More than Simply Control the Character of a Selling Partner's Gain or Loss
The U.S. Tax Court recently held that when a partner sells an interest in a partnership with "hot assets" — unrealized receivables or inventory items — Section 751(a) applies an aggregate theory not only to determine the character of the partner's gain or loss as capital or ordinary, but also to treat the partner as having actually sold a proportionate share of such hot assets for other purposes of the Internal Revenue Code. Rawat v. Comm'r, T.C. Memo. 2023-14. The court's holding arguably breaks new ground and, although favorable to the IRS in this particular case, could favor taxpayers in other circumstances.
The taxpayer in Rawat was a nonresident alien partner in a U.S. partnership that manufactures and sells energy drinks. The taxpayer sold her entire interest in the partnership in 2008. The parties agreed that under Grecian Magnesite Mining, Industrial & Shipping Co., SA v. Comm'r, 149 T.C. 63 (2017), aff'd, 926 F.3d 819 (D.C. Cir. 2019), the taxpayer's capital gain under section 741 was not U.S.-source income and, therefore, not subject to U.S. taxation. The taxpayer asserted that Grecian Magnesite required the same result for the taxpayer's section 751(a) gain and moved for summary judgment on that ground. The court denied the taxpayer's motion, holding that Grecian Magnesite does not control the sourcing of section 751(a) gain and that a sourcing analysis is required under sections 861(a)(6), 862(a)(6), and 863 (each relating to inventory).
The court's holding regarding Grecian Magnesite's scope and the potential for a nonresident alien to have U.S.-source income on the sale of a partnership interest has limited continuing relevance from a U.S. international tax perspective following enactment of section 864(c)(8) and its legislative override of Grecian Magnesite. In contrast, Rawat has significant continuing relevance for partnership taxation given that partnerships often have hot assets and the IRS has recently focused on auditing sales of partnership interests. See Internal Revenue Service, Large Business & International Active Campaigns, Sale of Partnership Interest.
Under section 751(a), "[t]he amount of any money, or the fair market value of any property, received by a transferor partner in exchange for all or a part of his interest in the partnership attributable to ... unrealized receivables ... or ... inventory items of the partnership, shall be considered as an amount realized from the sale or exchange of property other than a capital asset" (emphasis added). Based on this statutory language, the court in Rawat phrased the relevant question as "What is the 'property other than a capital asset' from which the 'money ... received' is 'considered' to have been 'realized' under section 751(a)?" To be sure, the statute itself does not explicitly answer this question. While the statute makes clear that the property is "other than a capital asset," the statute is silent on exactly what that non-capital asset is. The court stated that "[t]he only answers suggested by the statute are 'unrealized receivables' and ... 'inventory items'" and concluded that the Section 751(a) gain at issue was "'realized from the sale' of 'inventory items.'" The rest of the court's analysis regarding U.S.-source income turns on this conclusion, but the conclusion itself is not free from doubt.
One potential critique is to compare section 751(a) to section 897(g), another exception to the entity theory that section 741 adopts as the general rule for a sale or exchange of a partnership interest. Section 897(g) provides that consideration attributable to U.S. real property interests is considered an amount received from the "sale or exchange in the United States of such property" (emphasis added). The word "such" creates a link between the first and second halves of the sentence: consideration attributable to U.S. real property interests is considered received from the sale or exchange of such U.S. real property interests. In contrast, section 751(a) says that consideration attributable to unrealized receivables or inventory items is considered an amount realized from the "sale or exchange of property other than a capital asset" (emphasis added). Unlike section 897(g), section 751(a) does not link the first and second halves of the sentence, which seems to suggest that Congress intended for no such link to exist.
Another potential critique is that the court's conclusion relies to a large degree on what appears to be merely dicta from Grecian Magnesite (interestingly, authored by the same judge as Rawat). That case said the following about sections 751 and 897(g): "Congress has explicitly carved out a few exceptions to section 741 that, when they apply, do require that we look through the partnership to the underlying assets and deem such a sale as the sale of separate interests in each asset owned by the partnership." But section 751 was not at issue in Grecian Magnesite and the court's opinion there did not analyze that provision. Given that Rawat's ultimate holding turns on the court's conclusion regarding section 751(a)'s meaning, it seems questionable for the court to rest such conclusion on an earlier case which did not itself analyze section 751(a).
While Rawat favored the IRS under the case's facts and circumstances, there are other scenarios in which Rawat could produce taxpayer-favorable results. For example, where a U.S. person sells a partnership interest, Rawat could result in section 751(a) gain being treated as foreign-source income based on the partnership's underlying hot assets rather than as U.S.-source income based on the selling partner's residence under section 865(a). Moreover, if a partnership holds stock in a controlled foreign corporation (CFC), such stock is considered a hot asset to the extent section 1248 would apply to gain on its sale. The IRS position historically has been that section 751(a) gain attributable to CFC stock under section 1248 is ordinary in character but is not treated as a section 1248 dividend that would be eligible for a section 245A dividends-received deduction. Rawat could potentially support an alternative view.
We expect the taxpayer in Rawat to pursue an appeal if the U.S. Tax Court ultimately holds that some or all the section 751(a) gain at issue is U.S.-source income subject to U.S. taxation. We also expect any such appeal to garner significant attention from both taxpayers and the IRS given the potential implications of the section 751(a) analysis beyond those narrowly at issue in Rawat.
Treasury Issues Preliminary Guidance for Insurance Companies on Corporate Alternative Minimum Tax
On February 17, Treasury and the IRS released Notice 2023-20, aimed at mitigating "substantial unintended adverse consequences" of the corporate alternative minimum tax (CAMT) for the insurance industry. The Notice, which supplements Notice 2023-7 released in December, addresses determinations of adjusted financial statement income (AFSI) for companies with: (1) variable insurance and similar contracts; (2) certain reinsurance contracts; and (3) certain assets covered by "fresh start" basis rules. Taxpayers may rely on the guidance until proposed regulations are issued (for example, to calculate estimated payments).
The Notice permits taxpayers with variable life insurance contracts (as defined under section 817) and other similar contracts to disregard the unrealized gain/loss in its separate account assets in the computation of AFSI. In addition, the corresponding change in the company's obligations (from the disregarded gain or loss) would also be disregarded for purposes of computing its AFSI. Similarly, for funds withheld and ModCo reinsurance arrangements, the Notice provides that the ceding company may disregard unrealized gains and losses on withheld assets included in other comprehensive income (OCI), and the corresponding changes to net income for both the ceding company and the reinsurer will also be disregarded.
Finally, the Notice recognizes that in the 1980s and 1990s, Congress provided certain formerly tax-exempt organizations with special stepped-up basis rules and provides that those basis adjustments will apply for purposes of determining the AFSI for those entities.
The Notice requests comments on areas for additional guidance, as well as comments on whether the rules in the Notice should be expanded to include other contracts, arrangements, or entities. Comments are due by April 3, 2023.
Initial Qualifying Advanced Energy Project Guidance is Here at Last, But More Will Be Needed
The IRA reenacted section 48C, which provides up a credit of 30 percent of the eligible cost of "qualified advanced energy projects." Qualified advanced energy projects include projects to build or reequip facilities produce green energy property, such as electric vehicles, solar and wind components, and renewable fuels. The total credits awarded cannot exceed $10 billion, with $4 billion of that number reserved for projects in qualifying census tracts under section 48C(e)(2).
The section 48C credit was originally enacted in the 2009 American Reinvestment and Recovery Act, Pub. L. No. 111-5, § 1302(b) (Feb. 17, 2009). Under its original incarnation described in Notice 2009-72, taxpayers who desired an allocation of the credit had to complete a detailed, two-step application process with the Department of Energy (DOE), which would make recommendations and rank projects, with the IRS essentially following DOE's recommendations.
Section 48C(e)(1) provided that Treasury and the IRS had 180 days after the enactment of the IRA to "establish a program to consider and award certifications for qualified investments eligible for credits under this section to qualifying advanced energy project sponsors." On the 180th day, February 13, 2023, the IRS released Notice 2023-18, which "establishes the program under § 48C(e)(1) … to allocate $10 billion of credits … for qualified investments in eligible qualifying advanced energy projects[.]"
The Notice is 41 pages long, but much of it reiterates the requirements of section 48C as amended by the IRA. Notice 2023-18 sets forth the basic details of the application process.
The IRS anticipates having at least two allocation rounds for section 48C credits. The first round allocates approximately $4 billion of credits, with approximately $1.6 billion being allocated to qualifying census tracts. Subsequent guidance will detail the allocation amounts and procedures applicable to additional rounds.
As for the application itself, again the IRS will be primarily relying on DOE to evaluate projects. This had seemed likely based on the way that the previous program worked, although it was not necessarily mandated by the statute as amended by the IRA.
The application process has two steps. First, the taxpayer must submit a "concept paper" to DOE. For round 1, this concept paper must be submitted after May 31, 2023, but before July 31, 2023. DOE will review the submitted papers and "encourage or discourage taxpayers from submitting a joint application for DOE recommendation and for § 48C(e) certification (§ 48C(e) application)." DOE will then provide a recommendation and ranking to the IRS "only if it determines that the project has a reasonable expectation of commercial viability and merits a recommendation based on the criteria provided in the additional § 48C(e) program guidance." Second, the taxpayer must submit a section 48C(e) application and the IRS decides regarding the acceptance or rejection of the application based on DOE's recommendation and ranking.
Questions abound, and the IRS acknowledges in the Notice that additional guidance is needed, which it declares will be issued on or before the window to submit a concept paper opens on May 31, 2023. Among the questions that need to be answered are what specifically must be included in the concept paper and the subsequent section 48C(e) application and when the section 48C(e) application will be due. Finally, the Notice promises that applications will be "evaluated based on technical review criteria to be described in additional § 48C(e) program guidance." These review criteria will include selection criteria – unclear if referring to some or all – from section 48C(d)(3) (relating to the 2009 allocation of section 48C credits), as well as "additional criteria that further the goals of the program."
Notice 2023-18 does provide helpful guidance on other aspects of the section 48C credit, however. One welcome piece of guidance discusses the interaction between the section 48C credit and the section 45X, Advanced Manufacturing Production Credit. Section 45X(c)(1)(B) provides that components produced at a facility that "if the basis of any property which is part of such facility is taken into account for purposes of the credit allowed under section 48C." Practitioners had been concerned that simply by submitting a section 48C application or concept paper, a facility would no longer be eligible for the section 45X credit. However, Notice 2023-18 provides that "[f]or purposes of § 48C, a facility includes all eligible property included in a qualifying advanced energy project for which a taxpayer receives an allocation of § 48C credits and claims such credits after August 16, 2022." This language suggests that section 45X(c)(1)(B) will not come into effect unless a taxpayer actually receives an allocation of section 48C credit after submitting the appropriate application and claims a section 48C credit on its return. The Notice promises additional guidance on this question.
Another informative piece of guidance comes in Appendix A of the Notice, which provides specific examples of qualifying advanced energy projects. This will allow taxpayers some insight as to whether their proposed project has chance for qualifying for an allocation to justify preparing the consent letter and application.
Significant guidance continues to be needed not only on section 48C but also on several other green energy credits enacted by the IRA. We expect proposed regulations and other guidance to be released this year.
IRS Pilots New Phase in Reworked CAP Program
The Large Business & International Division (LB&I) announced the addition of a new phase to the CAP program as part of a pilot program that will take effect for the 2023 CAP year. The introduction of the new phase, called the Bridge Plus phase, builds on changes LB&I made to the CAP program in 2019.
The CAP program was introduced in 2005 as a method to resolve complex tax issues for certain large corporate taxpayers through a cooperative information sharing process before the filing of a tax return. As originally introduced, a participating taxpayer would start in the CAP phase and would eventually graduate to the Compliance Maintenance phase. In 2019, LB&I recalibrated the CAP program to focus the program on serving as an efficient issue-resolution process. The recalibrated CAP program included the Bridge phase, in which the taxpayer transitions out of the CAP program altogether.
In response to taxpayer concerns that taxpayers received too little IRS review during the Bridge phase, LB&I will pilot the Bridge Plus phase, in which the IRS will perform a limited pre-filing review of taxpayer documents, and compliant taxpayers will transition more gradually out of the CAP program. Taxpayers in the Bridge Plus phase must provide book-to-tax reconciliations, credit utilization, and other supporting documentation shortly after their audited financial statement is finalized. The IRS will then review a draft tax return 30 days before the taxpayer plans on filing for consistency with the taxpayer's prior submissions. If the IRS determines that the draft return is consistent with previous submissions and the taxpayer finalizes and files the return, the IRS will issue the taxpayer a full acceptance letter.
The IRS will notify taxpayers that they are eligible for the Bridge Plus phase. The pilot program is limited to taxpayers that were in the Bridge phase in 2022 and were recommended to participate in the Bridge phase again in 2023.
TIGTA Reviews IRS Implementation of the Taxpayer First Act's Provisions on Appeals
On February 20, 2023, the Treasury Inspector General for Tax Administration (TIGTA) released a report detailing its review of the IRS's actions taken to implement the provisions related to the Independent Office of Appeals of the Taxpayer First Act (TFA). While it recognized that the IRS has taken steps to implement and comply with the provisions of the TFA, it made five recommendations to round out and improve IRS compliance and implementation.
The TFA, enacted July 1, 2019, among other things, codified the existence of the Appeals function and its mission to resolve tax controversies on an impartial basis without litigation. It also provided that Appeals generally is to be available to all taxpayers, and that the IRS must issue written notice when it determines that Appeals is not available to a taxpayer, explaining why it determined Appeals is unavailable and how to appeal. The TFA provided that legal advice from Chief Counsel personnel to Appeals should be provided by attorneys not involved in the case and, finally, that certain taxpayers should receive non-privileged portions of their case files at least 10 days before the beginning of an Appeals conference.
TIGTA's findings from its review of the IRS's implementation and compliance with the TFA include the following:
- The IRS had not implemented procedures for all cases for which access to Appeals was denied. While the IRS has implemented procedures regarding cases designated for litigation, under which taxpayers are provided a written notice that explains the basis for the determination, the IRS had not implemented procedures for other denials of access to Appeals.
- There is no process in place to track Appeals' requests for legal assistance from Chief Counsel to ensure compliance with the TFA.
- In addition, the IRS has not updated preexisting guidance on ex parte communications for the TFA.
Where TIGTA found that the IRS had not yet fully implemented or was not in compliance with the TFA, TIGTA made several recommendations, including the following:
- Issue guidance that clearly defines a case for which access to Appeals is denied, that sets forth a mechanism to track those cases, and to provides procedures for responding to taxpayer protests of the denial of access to Appeals. TIGTA reported that IRS management accepted those recommendations.
- Develop a system to track and document requests to Chief Counsel from Appeals for legal assistance to determine whether attorneys responding to such requests had any prior involvement in the case or are involved in preparing the case for litigation. Where the responding attorney is involved in the case, TIGTA recommended documenting the reason for that attorney's involvement. TIGTA reported that IRS management disagreed with this recommendation and maintains that this information is already contained in each taxpayer's legal file. However, TIGTA found that current systems cannot identify which requests for legal assistance came from Appeals and therefore cannot ensure compliance with the TFA.
- Update internal guidance on ex parte communications to reflect the enactment of the TFA. TIGTA reports that IRS management maintains that no updates to Rev. Proc. 2012-18 are necessary, despite its lack of explicit reference to the TFA. Based on its review, TIGTA believes that updating Rev. Proc. 2012-18 will better IRS and taxpayer of compliance with the TFA.
We observe that TIGTA notes the reaction of "IRS management" to each of its recommendations rather than that of Appeals. Query whether the reference to "IRS management" was purposeful or merely a generalization. If purposeful, the fact that Appeals policy and procedures are developed by IRS management, rather than the Chief of Appeals, may undermine the independence of Appeals from the enforcement function.
See here for our previous coverage of proposed regulations addressing the TFA's requirement that Appeals be generally available to all taxpayers.
Treasury Finalizes Rules Addressing Section 959(b) Distributions in the Consolidated Group Context
On February 23, Treasury finalized regulations that treat a consolidated group as a single taxpayer for purposes of determining pro rata share ownership of a controlled foreign corporation in a distribution of previously taxed earnings and profits to an upper-tier CFC under section 959(b). The final regulations remain unchanged from when they were proposed in December of 2022. Read our prior coverage here. As anticipated, the final regulations are effective for the taxable year in which the original consolidated income tax return is due (without extensions). For calendar year taxpayers, this means the regulations are applicable to the 2022 tax year.
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