Thursday, January 15, 2015

Suggested FAQs for the IRS - TPR

Recently, another practitioner informed his peers that the Service is collecting suggested questions for its FAQ on the Tangible Property Regulations. Below the fold are questions I have collected from many practitioners online and in practice. If you have additional questions you would like for me to submit, please comment on this post or email me directly. The comments are moderated, so your post may not show up immediately.

Tangible Property Capitalization Regulations FAQ Submission

Procedural and Filing Questions

1.       Does MeF support efiling Form 3115? If so, is it part of the return package or is it submitted as a pdf attachment? If not, we will have to mail one copy to Ogden and another with Form 8453, right?
2.       When filing the Ogden copy, can we submit batches of Forms 3115, whether multiple forms from one client or from many clients, in one mailing?
3.       Does the re-imposition of the scope limitations for these accounting method changes following the 2014 tax year mean that the changes will no longer be automatic?
4.       Does the Service have plans to make any of the changes in Rev. Procs. 2014-16 and 2014-54 non-automatic after the 2014 tax year?
5.       Many of my clients retain their accounting records for only seven years.  Though some older improvements are listed on the fixed asset ledger, the clients have no records of repair activities undertaken more than seven years ago. We can calculate a section 481(a) adjustment for these clients going back seven years for any changes from repairs-to-improvements and as far back as the depreciation schedules permit for improvements-to-repairs. Will our inability to calculate the section 481(a) adjustment for repairs that should have been capitalized that took place more than seven years ago invalidate our clients’ Form 3115 filings?
6.       My clients never throw away anything. Do I have to audit the underlying accounting information going back to day one of the taxpayer’s existence when calculating the section 481(a) adjustment or may I rely on the taxpayer’s current book accounting procedures, their existing records, and their oral testimony to calculate the section 481(a) adjustment consistent with professional standards? (Ed. Explanation: Many practitioners are concerned that they will have to review decades of return expenses to determine whether anything needs to be capitalized under the new regulations.)
7.       If a cost was capitalized as an improvement, (but should have been expensed as a repair under the new regulations), and was expensed under section 179 in a now closed year, can we change the treatment of this cost as part of a method change?
8.       One of my clients early adopted portions of the new regulations without filing a Form 3115 or taking a section 481(a) adjustment into account. Should they file a PLR request for that year or should they file a protective Form 3115 for the current year?
9.       Will the Service provide sample Forms 3115 illustrating the abbreviated method changes for small taxpayers?

Substantive Questions – Overall

1.       Some national presenters have opined that most small taxpayers do not have accounting methods and thus can adopt these new regulations without filing a Form 3115 or taking a section 481(a) adjustment into account.  In this view, the taxpayer would, at most, file a Form 8275-R to adopt the new regulations without filing a Form 3115. My understanding has always been that taxpayers must use consistent accounting methods unless granted consent to change by the Commissioner.  Would the waiver of the five-year item scope rule mean that taxpayers without a consistent method can, and should, file a Form 3115 to adopt the new regulations?
2.       Some national presenters have suggested that failure to adopt the new regulations properly could lead to permanent differences from depreciation disallowances in Exam. My understanding has always been that Examining Agents are generally required to make accounting method changes on an accounting method change basis (with a section 481(a) adjustment) in the earliest open year unless the change requires a cut-off method or the taxpayer lacks the records to compute (at least a reasonable estimate of) a section 481(a) adjustment. Is there new guidance that overrides Rev. Proc. 2002-18?

Substantive Questions - Materials and Supplies

1.       My client currently expenses all Units of Property or components that cost $1000 or less. The client does not have an Applicable Financial Statement and has never been audited, but this de minimis expensing threshold clearly reflects income under prior law. These expensed UoPs and components are treated as office supplies in the taxpayer’s books and records and treated as incidental materials and supplies on its tax return. The client is a professional services provider with no non-incidental materials and supplies and whose definition and treatment of incidental materials and supplies already conforms to the new regulations in all other respects.
a.       Is the taxpayer required to adopt the $200-or-less UoP rule as part of change 186?
b.      If so, does adopting this rule limit the taxpayer’s ability to expense UoPs costing more than $200 under its existing de minimis expensing policy?
2.       In Example 9 of section 1.162-3(h), the rationale is unclear. Would you please explain if the clear-reflection-of-income rule is being invoked to prevent the expensing of these apparently incidental supplies or whether storing the two cartridges for next year amounts to an inventory?

Substantive Questions – The De Minimis Safe Harbor

1.       None of my clients have Applicable Financial Statements, but my professional relationship with them involves different situations. How would the DMSH apply, if at all, in the following situations?
a.       The taxpayer brings in all records of income and expense at the end of the year. The return preparer performs the necessary bookkeeping, makes all capitalization decisions, and then prepares a tax return. The taxpayer uses this tax return for managerial accounting purposes and for credit purposes. Assuming the preparer consistently applies a $500 de minimis expensing policy, does this qualify for the DMSH?
b.      The taxpayer maintains its own books and records. Under its accounting procedures, the taxpayer expenses everything. Each tax season, the return preparer capitalizes newly acquired or produced assets and improvements all of which cost more than $500. The taxpayer uses its books and records for managerial and credit purposes. Does the taxpayer qualify for the DMSH?
c.       The taxpayer maintains its own books and records. Under its accounting procedures, the taxpayer places all assets into a suspense account called “CPA-figure-it-out”. After year end, the return preparer applies a $500 de minimis expensing threshold and then capitalizes or expenses improvements and repairs as required under applicable tax law. Does this qualify for the DMSH?
2.       One of my clients has audited tax-basis financials using OCBOA. Does this qualify them for the $5,000 DMSH?
3.       One of my clients submits unaudited, unreviewed financial reports to a local farmers cooperative acting as the agent of a government farm service agency. Does this qualify them for the $5,000 DMSH? If so, does it matter if the financial reports are prepared on a tax basis?

Substantive Questions – Repairs and Improvements

1.       I have always advised my clients to take positions on repairs and improvements that are warranted under existing case law. Assuming this is true, are there any situations where the new regulations are not taxpayer-favorable interpretations of existing law? In other words, do I need to worry about positive section 481(a) adjustments or, to the extent there are adjustments, will they usually be negative?
2.       Is it possible to properly expense a roof repair in 2011 without setting an accounting method of expensing? Some practitioners tell me I need to look at the facts-and-circumstances of each repair or improvement to make a determination. In other words, a roof repair may have been properly expensed in 2011 and a different roof improvement may be properly capitalizable under the new regulations in 2014. Assuming I used the building as the Unit of Property in both years and the 2011 repair expense is proper under the new regulations, is there an accounting method change in this situation?
3.       One of my clients acquired an existing shopping center several years ago. One of the tenant suites is separated from the remainder by a party wall with no doors or windows. Is this tenant suite treated as a separate Unit of Property from the rest of the building?
4.       One of my clients acquired a small office building for use in its trade or business. The building has a stream running through the middle of it. The two halves are connected by a bridge, but have no other connecting parts. Both halves are treated as a single building in the client’s books and records and qualify for treatment as a single asset for disposition purposes. Are these two separate Units of Property for improvement purposes?
5.       One of my clients owns a ten-story office building. Each floor is occupied by a single tenant. This year, one of the tenants moved out at the end of its lease and was replaced by a new tenant. At the end of the lease, the leasehold improvements constructed for the tenant (and owned by my client) were demolished. New improvements were constructed for the new tenant.
a.       For purposes of the BAR tests, does the identification of the improvements as section 1250 building components or section 1245 tangible personal property impact whether the replacement improvements as restorations (assuming the adaptation and betterment rules do not apply)?
b.      Assuming all of the disposed and replacement assets are section 1250 structural components (and not part of an enumerated building system), would the new assets generally not qualify as a restoration and can be expensed as a repair? Or would section 168(i)(8)(B) require the demolished assets are treated as a disposition and thus the replacement assets must be capitalized as a restoration?
6.       Example 24 of section 1.263(a)-3(i)(7) identifies “partition walls separating the bathroom area” of a hotel as section 1245 assets. This appears to contradict the guidance in the Field Directive on Asset Class and Depreciation for Casino Construction Costs. Can cost segregation professional rely on this new example to take this position?
7.       As written, the regulations appear to suggest that as long as an asset is properly includible within the ITC definition of a building and its structural components, it will be part of the building Unit of Property, even if it is in a shorter recovery period. The exception is where the taxpayer subsequently changes the asset to a different recovery period. (Section 1.263(a)-3(e)(5)(i) explicitly does not apply to building Units of Property.) Is this a drafting error?

Substantive Questions – Dispositions

1.       Will the Service please provide the applicable series identifiers for the safe harbor Producer Price Indexes that are used to determine the unadjusted basis of a disposed asset or component?
2.       If I use the safe harbor PPI method for an asset placed in service before the switch to the Final Demand index but disposed of after the switch, do I use the index combination principles from the dollar-value LIFO IPIC method to combine the Final Demand and Finished Goods indexes or do I just use the Finished Goods index from the current and original years?
3.       When using the safe harbor PPI method for restorations, do I use the annual index or the monthly index?

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