The US IRS has published proposed section 367 regulations that eliminate rules that allowed intangibles, including foreign goodwill and going concern value, to be transferred by a US person to a foreign corporation without gain recognition .
The Service also released related temporary transfer pricing regulations that coordinate section 482 guidance on aggregation of controlled transactions with other code provisions, including section 367. Both sets of regulations were published in the Federal Register on September 16 and are effective September 14.
The proposed section 367 regs are aimed US taxpayers that attribute too much value of foreign business operations or assets transferred outside the US to intangibles that can be transferred without section 367 gain recognition — such as foreign goodwill and going concern value — and that undervalue intangible property subject to tax under section 367(d).
The regs solve the problem by taking away the tax exemptions available for intangibles.
The new regs eliminate the specific exemption for foreign goodwill and going concern value provided in reg. section 1.367(d)-1T. They also expressly limit the active trade or business exception of section 367(a) to tangible property, working interests in oil and gas property, and certain financial assets.
As a result, gain from the transfer of intangibles not listed in section 936(h)(3)(B) and thus not subject to tax under section 367(d) – including foreign goodwill and going concern value – by a US person to a foreign corporate transferee will be subject to tax under section 367(a).
The regs allow taxpayers to opt section 367(d) deemed royalty treatment for the gain on intangibles covered by the new rules, though.
The IRS said it decided to eliminate rather than modify the exception for goodwill and going concern value because taxpayers would just maneuver around any new rules by taking aggressive transfer pricing stances.
For example, to minimize the value of property transferred that is identified as section 936(h)(3)(B) property, taxpayers have been valuing intangible transfers on an item-by-item basis when valuing the intangibles on an aggregate basis would achieve a more reliable result, the Service said.
“Given the amounts at stake, as long as foreign goodwill and going concern value are afforded favorable treatment, taxpayers will continue to have strong incentives to take aggressive transfer pricing positions to inappropriately exploit the favorable treatment of foreign goodwill and going concern value, however defined, and thereby erode the US tax base,” the IRS said.
The proposed regulations also provide that eligible property does not include inventory or similar property, installment obligations, accounts receivable, foreign currency, some property denominated in foreign currency, and leased property.
They further eliminate a rule that limits the useful life of intangible property to 20 years, and modify the scope of the term ‘US depreciated property’ for purposes of the depreciation recapture rule to include section 126 property.
Transfer pricing regs
The Service also released temporary transfer pricing regulations dealing with the aggregation of controlled transactions, clarifying that section 482 aggregation principles also apply when the controlled transactions are subject to other provisions of the tax code or regulations, such as section 367.
The Service said that even if mulitple code sections apply, consideration of the combined effect of two or more transactions may be appropriate to determine if overall compensation is consistent with the value provided, including any synergies among items and services provided.
The Service said that in some cases where section 367 has applied to one transaction and general nonrecognition rules apply to another, taxpayers have inappropriately taken the position that items similar to other items constituting an intangible should not be combined for purposes of section 482, resulting in no compensation for part of the value in a controlled transaction. Separate evaluation of interrelated transactions is not appropriate just because different statutes apply to the transactions, the Service said.
The regulations add several examples to illustrate the new concepts.
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