There have been several recent tax accounting developments. The most significant is important new legislation that allows businesses to deduct 100 percent of the cost of qualifying property. Because the new provision has a limited time horizon, it is important to evaluate whether the new provision is applicable to recent capital acquisitions to take full advantage of this generous new provision.
Additionally, for certain companies with significant gift card revenue, recently-released administrative guidance may allow deferral opportunities. Thus, both the new legislation and the new procedures may favorably impact cash flow, accelerating certain depreciation deductions and deferring certain gift card income. Although these disparate items have limited application, these items may provide a significant benefit for certain companies.
A third item provides additional procedural guidance regarding the implementation of certain accounting method changes. Companies should consider these new rules to identify investment opportunities and achieve clarity in their treatment of various items. The following is a discussion of these new rules and an overview of potential implications.
Since 2002, Congress has enacted several provisions that permit accelerated cost recovery through depreciation ("bonus depreciation") of capital asset purchases in an effort to encourage business investment. Prior to the recently-enacted legislation, certain "qualified property" was allowed 50 percent bonus depreciation in the year the property was placed in service rather than having property costs depreciated over a longer period as provided in the general provisions in Sections 167 and 168.
As part of what the White House described as the "largest temporary investment incentive in history," President Obama signed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 20101 into law in December. Specifically, the legislation is designed to encourage additional investment in certain business property by providing 100 percent bonus depreciation. Combined with the extension of numerous other tax cuts and other provisions, the purpose of this legislation is to avoid having capital "waiting on the sidelines," and the administration hopes it will spur growth in the economy. The new bonus depreciation deductions do not increase total deductions; the timing of when deductions are taken into account is simply accelerated.
It is important to note that not all property qualifies for bonus depreciation. In general, "qualified property" is limited to (i) tangible property with a recovery period of 20 years or less, (ii) the original use of which began after December 31, 2007, (iii) which was acquired by the taxpayer in 2008, 2009, or 2010, and (iv) was placed in service before January 1, 2011.2 Special rules exist for certain types of property, such as computer software, water utility property, leasehold improvements, transportation property, and certain aircraft, and extensions of deadlines apply in some instances. Under the new bonus depreciation rules in Section 168(k)(5), a business placing qualified property in service after September 8, 2010, and before January 1, 2012 (again, with extended deadlines for certain property), may claim 100 percent bonus depreciation on the property.
During a recent American Bar Association meeting, Treasury and IRS officials, speaking on their own behalf, discussed some of the issues that are expected to be addressed by the upcoming guidance. Of particular importance, the officials noted that additional guidance on bonus depreciation is expected shortly, perhaps as soon as the end of February.
One interesting issue has arisen regarding whether companies may claim 50 percent bonus depreciation instead of claiming 100 percent bonus depreciation. If companies already have losses or little current income, then bonus depreciation deductions in the current year are less valuable. Section 168(k)(2)(D)(iii) currently only permits an election out of bonus depreciation on a class-by-class basis, thus, the statute may be interpreted as disallowing the smaller bonus depreciation.
Also, some taxpayers have questioned the treatment of property acquired pursuant to binding contracts that meet the definition of qualified property but do not meet the post-September 8, 2010, requirement. The new binding contract rule is liberal, but application of the acquisition date requirement may restrict the availability of 100 percent bonus depreciation. The interaction of these provisions is subject to some debate. Assuming the property meets the other requirements of Section 168(k), a business acquiring property under a binding contract signed on September 1, 2010, could potentially claim 50 percent bonus depreciation, but there is some question whether it could claim 100 percent bonus depreciation. Future guidance is expected to definitively resolve this question.
Finally, some questions remain regarding self-constructed property and whether such property is subject to the acquisition date requirements in Section 168(k)(5). Self-constructed assets are generally deemed to be acquired once construction begins.3 To be eligible for 100 percent bonus depreciation, the property must have been acquired after Sept. 8, 2010. There is a safe harbor for purposes of the bonus depreciation provisions under which construction is not deemed to begin and, therefore, property is not considered acquired, until more than 10 percent of the costs of such property are incurred.4
Bonus depreciation provides significant cost recovery acceleration for businesses, and taxpayers should be aware of this new provision and its limitations. We will continue to follow developments in this area and assist taxpayers in using these rules.
Gift Card Guidance
Gift card sales are a significant percentage of sales for many retailers, and they present a number of unique issues. Gift card issuers and gift card programs have encountered increased scrutiny by the IRS and at the state level in the last several years. The IRS has reviewed issuers and arrangements generally with a focus on income recognition timing, while states have looked to escheat laws to require surrender of unused gift card balances. Commentators have noted that issuers and arrangements, in turn, have become more complex, forming new arrangements and structuring to avoid escheat laws. Rev. Proc. 2011-175 and Rev. Proc. 2011-186 provide guidance on two key gift card issues: the treatment of gift cards issued for returned merchandise and gift cards issued by a third party.
Often, returned merchandise entitles a customer to store credit or a gift card instead of a cash refund. In Rev. Proc. 2011-17, the IRS provides a safe harbor accounting method for the treatment of gift cards issued in exchange for merchandise returns. Under this safe harbor, a gift card issued for returned goods may be treated as payment of a cash refund in the amount of the gift card followed by a purchase of a gift card, allowing use of the income deferral provisions of Treas. Reg. § 1.451-5 and Rev. Proc. 2004-34. As such, a company may simultaneously reduce its income by the amount of the gift card and also defer income recognition through the deemed sale of the new gift card.
By way of background, Section 451 requires income recognition when a payment is received, unless the income is properly recognized in another period under the taxpayer’s accounting method. For accrual taxpayers, the year of income inclusion is determined under the all events test, which requires income recognition when all events have occurred that fix the right to receive the income and the amount can be determined with reasonable accuracy.7 Important exceptions allow the deferral of "advance payments" for one or two years based on the taxpayer’s recognition of payments under its accounting method for financial reporting purposes.8
Treas. Reg. § 1.451-5(a)(1) defines an advance payment as "any amount which is received in a taxable year by a taxpayer using an accrual accounting method for purchases and sales." Advance payments must be included in income when received or, as mentioned above, when included in gross receipts for purposes of financial statements or other reports, allowing for deferral of the income.9
Rev. Proc. 2004-34 provides additional rules allowing income deferral for advance payments. It sets forth a more detailed definition of advance payments, including payments for services, sales of goods, the use of intellectual property, and other items, and excluding items like rent, insurance premiums, and payments with respect to financial instruments. It also lists permissible methods of accounting for these advance payments, including immediate inclusion of the full amount and deferral based on Treas. Reg. § 1.451-1.
Rev. Proc. 2011-17 notes an interesting dichotomy of treatment for merchandise returns. If merchandise is returned in exchange for a gift card, the seller does not have a "fixed liability" for purposes of Section 461, which also applies the all events test and a performance test for liabilities.10 Conversely, if merchandise is returned for cash, the seller may immediately deduct the payment from its gross receipts. If the customer then uses the cash to purchase a gift card, the seller, if its accounting method allows, may defer the item from gross income under Treas. Reg. § 1.451-5 or Rev. Proc. 2004-34.
To minimize disputes and to provide for a better matching of income and costs, Rev. Proc. 2011-17 allows a taxpayer to treat gift cards issued for returned goods as a payment of cash followed by the sale of a gift card. Taxpayers wishing to make this change may do so under the automatic consent procedures or under the advance consent procedures if a change to a proper accounting method is also required. Rev. Proc. 2011-17 is effective for taxable years ending on or after December 31, 2010.
Rev. Proc. 2011-18 recognizes a more recent issue facing gift card issuers and modern business structures. Gift cards are often redeemed by a retailer that is not the issuer of the gift card. As discussed above, state escheat laws and other structuring concerns have led to gift card subsidiaries being formed that may or may not redeem the cards directly with customers. Rev. Proc. 2011-18 notes other situations in which a cooperative or membership organization offers cards redeemable by any member entity and other arrangements allowing gift cards to be redeemed by related or unrelated parties. Significantly, Rev. Proc. 2011-18 allows these entities to take advantage of special deferral provisions despite the fact another taxpayer actually redeems the gift card.
Typical gift card arrangements allow the card issuer to hold the proceeds until the card is used. The seller of goods or services, pursuant to its arrangement with the gift card issuer, is obligated to accept the card for payment. The seller then seeks its share of the gift card proceeds from the card issuer.
Rev. Proc. 2011-18 notes that a taxpayer selling its own gift cards and a taxpayer engaging in an indirect issuance structure should be treated the same, and to accomplish this, Rev. Proc. 2011-18 modifies Rev. Proc. 2004-34 to include "eligible gift card sales" in the definition of "advance payments." "Eligible gift card sales" arise when the issuer is primarily liable to the card holder until redemption or expiration, and the card is redeemable by an entity legally obligated to accept the card as payment. Rev. Proc. 2011-18 also expands Rev. Proc. 2004-34’s definition of financial statement to include the financial statement for a consolidated group. Notably, Rev. Proc. 2011-18 expands the scope of Rev. Proc. 2004-34 only, because Treas. Reg. § 1.451-5 is limited to taxpayers selling their own goods.
Rev. Proc. 2011-18 adds several new examples to Section 5.03 of Rev. Proc. 2004-34, which further illustrate these new rules. Example 23 describes a corporation that operates department stores. It has several domestic subsidiaries with which it files a consolidated return, but it also has a foreign subsidiary that is not part of the consolidated return. Another unrelated corporation enters into a gift card arrangement with the consolidated group and the foreign subsidiary in which one of the domestic subsidiaries issues gift cards redeemable by the other domestic subsidiaries, the foreign subsidiary, or the unrelated entity. The issuing subsidiary reimburses the entity for its gift card sales and otherwise tracks the gift card sales and redemptions for recognition in its financial statements. Under these facts, the issuing subsidiary is entitled to defer the unredeemed balance of the gift cards.
Example 24 describes a Subchapter S corporation that operates and manages restaurants. It owns a partnership or equity interest in some of the restaurants. The corporation administers a gift card program for the group in which it and the participating restaurants issue gift cards under the corporation’s brand name that are redeemable by all participating restaurants. All participants must honor the gift cards, and the corporation must reimburse the restaurant for accepting the gift cards. The corporation recognizes the payments in revenues for its financial statements when the gift card is redeemed, and under these facts, the corporation is entitled to defer the unredeemed amounts.
Finally, Example 25 describes a corporation operated for the benefit of domestic and international hotel franchisees. It collects fees and provides various services to the franchisees, including a gift card program. The corporation receives the proceeds from the sales of the gift cards, but it must reimburse the redeeming hotel. Because the corporation tracks sales and redemptions, is able to determine the recognition of revenues for its financial statements, and otherwise meets the requirements of Rev. Proc. 2004-34, the corporation is entitled to defer the unredeemed amounts.
Rev. Proc. 2011-18 also is effective for taxable years ending on or after December 31, 2010. Depending on the change made, a taxpayer may use either the automatic change procedures or the advance consent procedures.
Some have questioned the propriety of Rev. Proc. 2011-18, noting that often gift cards are not materially different from traveler’s checks. Especially with regard to Example 25 discussed above, a commentator noted that a card issuer who does not provide any good or service redeemable by the gift card only has an obligation to pay money when the card is redeemed. If treated as a traveler’s check, then the money received by the card issuer is not includable in gross income.
In general, however, both Rev. Proc. 2011-17 and Rev. Proc. 2011-18 have been welcomed by the industry for providing some clarity in this difficult area. Numerous gift card issues remain outstanding, including accounting for dormancy fees, treatment of cards subject to escheat, and many other matters,11 and we will continue to follow these developments.
Rev. Proc. 2011-14
After years of adding new accounting method changes and continuing complexity in the area, Rev. Proc. 2011-1412 provides updated procedures for obtaining automatic consent for changes in methods of accounting. It modifies Rev. Proc. 2008-5213 and Rev. Proc. 2009-3914 for automatic changes and also Rev. Proc. 97-2715 for advance consent procedures.
A key change in Rev. Proc. 2011-14 is to the definition of "under examination," providing further accounting method change limitations. Changes in accounting methods are not allowed while a taxpayer is under examination. One new rule provides that the 120-day window—which previously allowed changes in accounting methods during the 120-day period after an examination ended, even if a subsequent examination was begun—will end early if the Office of Appeals refers a case back to agents for reexamination. In addition, if the Joint Committee on Taxation is reviewing an item, the taxpayer continues to be under examination, disallowing a method change.
Other notable changes require a copy of certain method change requests to be filed with the IRS’s Ogden, Utah, office in lieu of, instead of in addition to, a filing with the National Office, and special rules for audit protection. Rev. Proc. 2011-14 provides that a taxpayer not otherwise eligible to file an accounting method change may request a change in accounting method without audit protection if the method to be changed is an issue under consideration by Appeals or a federal court.
For substantive changes, Rev. Proc. 2011-14 introduces several new rules and method changes, including matters with respect to:
- new safe harbor accounting methods for auto dealerships for "retail sales facilities" and treatment as resellers without production activities (as discussed in Rev. Proc. 2010-44,16 and outlined in the November 2010 issue of Pepper Hamilton’s Tax Update.)
- advance payments received and their treatment under Rev. Proc. 2004-34, including the changes in Rev. Proc. 2011-17 and Rev. Proc. 2011-18
- Section 179D deductions for installation of energy-efficient commercial building property
- certain California franchise tax liabilities
- new procedures for a Blue Cross and Blue Shield organization relating to unearned premiums and failed medical loss ratio requirements under Section 833(c)(5), and
- Section 481(a) adjustments for foreign partnerships or foreign divisions of domestic corporations.
Rev. Proc. 2011-14 is a long and very detailed document, changing numerous areas and aspects of automatic changes in accounting methods and advance consent for method changes. We encourage taxpayers to review this Revenue Procedure and to consult with their tax advisors regarding the new rules and their potential application to changes in accounting methods.