Executive Summary

The 2010 enactment of tax legislation codifying the common law economic substance doctrine created substantial concerns relating to the application of the doctrine, including (i) the potential for an overly broad application of the doctrine to routine transactions, (ii) the potential for a strict liability penalty of up to 40% on transactions to which the doctrine applies, and (iii) the difficult decision of whether to expressly disclose a transaction in order to reduce the potential 40% penalty to 20%. New IRS field examiner guidance released by the IRS on July 15, 2011 has somewhat reduced taxpayer concerns regarding the potential for overly broad application of the doctrine to routine transactions, and has provided a helpful new framework for analyzing the possible applicability of the doctrine. Nevertheless, by its very nature, the application of the economic substance doctrine remains subjective and uncertain. As a result, taxpayers should consider the potential for its application and the desirability of specific disclosure in connection with any transaction that has a significant component that arguably has no business purpose and/or is designed to leave a taxpayer in the same economic position, but with a substantially improved tax result.  

Background

On July 15, 2011, the Large Business & International Division of the IRS issued LB&I-4-0711-015 entitled “Guidance for Examiners and Managers on the Codified Economic Doctrine and Related Penalties” (the “Directive”). The Directive is intended to instruct IRS examiners and managers on how to identify cases for potential application of the doctrine and whether to seek approval by the Director of Field Operations (the “DFO”) to raise the economic substance doctrine and impose the related strict liability penalty.  

The codified economic substance doctrine, added in March 2010 as Section 7701(o) of the Internal Revenue Code, provides that in the case of any transaction to which the economic substance doctrine is relevant, the transaction is treated as having economic substance only if (i) it changes in a meaningful way the taxpayer’s economic position, and (ii) the taxpayer has a substantial purpose (aside from the federal income tax effects) for entering into the transaction. In addition, Congress amended Section 6662 of the Code to impose a penalty of 20% (40% for undisclosed transactions) (the “Economic Substance Penalty”) of any underpayment attributable to the disallowance of claimed tax benefits by reason of the application of the economic substance doctrine. The new penalty applies without regard to the reasonable cause exception. For a brief summary of the economic substance legislation see Codification of the Common Law "Economic Substance Doctrine": Taxpayers Subject to New Standards to Obtain Tax Benefits and Avoid Penalties. On September 14, 2010, the IRS issued guidance which provides that any proposal to impose the Economic Substance Penalty at the examination level must be reviewed and approved by the appropriate DFO.  

The Directive

The Directive expands and clarifies the September 2010 guidance by providing instructions to examiners on how to determine when it is appropriate to seek the approval of the DFO for the imposition of the Economic Substance Penalty. The Directive establishes a four-step process that examiners and managers must follow before submitting a proposal to impose the Economic Substance Penalty. In addition, the Directive instructs examiners to notify the taxpayer as soon as possible when the examiner is considering application of the doctrine under this four-step process, thereby giving the taxpayer the opportunity to provide additional information relevant to consideration of the applicability of the doctrine.  

The Four-Step Process

First, an examiner should evaluate whether the facts and circumstances in the case are those under which application of the economic substance doctrine to a transaction is likely not appropriate. The Directive lists 18 facts and circumstances that “tend to show” that application of the doctrine is likely not appropriate, including, among others:

  • The transaction is not promoted by the taxpayer’s tax department or an outside advisor;
  • The transaction is not “highly structured”;
  • The transaction contains no “unnecessary steps”;
  • The transaction does not “artificially” limit the taxpayer’s potential for gain or loss;
  • The transaction is not “prepackaged”; and
  • The transaction generates “targeted tax incentives in form and substance consistent with Congressional intent.”

In addition, the Directive specifically enumerates four safe-harbor transactions that are inappropriate for the application of the economic substance doctrine, including (i) debt/equity capitalization choices, (ii) the choice between using foreign or domestic corporations for foreign investments, (iii) certain corporate reorganization structures, and (iv) certain arm’s-length related party transactions.

Second, an examiner should evaluate whether the facts and circumstances in the case are those under which application of the doctrine to the transaction may be appropriate. The Directive sets forth 17 facts and circumstances (most of which are the mirror image of the positive factors considered in the first step) where the IRS believes that the economic substance doctrine may be appropriate including, among others:

  • The transaction is prepackaged, or promoted, developed, or administered by the tax department or outside advisors;
  • The transaction is highly structured or contains unnecessary steps;
  • The transaction is not at arm’s length with unrelated parties;
  • The transaction involves a tax-indifferent counterparty that recognizes substantial income;
  • The transaction has no significant risk of loss;
  • The taxpayer’s potential gain or loss on the transaction is artificially limited;
  • The transaction has no credible business purpose and has no meaningful potential for profit apart from tax benefits; and
  • The transaction is outside of the taxpayer’s ordinary business activities.  

Third, if an examiner determines that application of the doctrine may be appropriate, the Directive provides a series of inquiries the examiner must address in developing the case for approval to apply the doctrine, including:

  • Whether the transaction involves a statutory or regulatory election;
  • Whether the transaction is subject to a detailed statutory or regulatory scheme;
  • Whether precedent relating to the application of the economic substance doctrine’s application to the type of transaction exists;
  • Whether the transaction involves tax credits;
  • Whether another judicial doctrine more appropriately addresses the alleged noncompliance (if so, the Directive indicates that the economic substance doctrine should not be applied);
  • Whether recharacterizing the transaction more appropriately addresses the alleged noncompliance; and
  • Whether, considering all arguments available to challenge the claimed tax result, the application of the economic substance doctrine is the strongest In connection with answering the foregoing inquiries, the examiner is directed to seek advice from the examiner’s manager and local IRS counsel.  

Fourth, if an examiner and his or her manager determine that application of the economic substance doctrine has merit, the examiner and the manager, should describe in writing how the analysis was completed and submit the written analysis to the DFO. The DFO will then review the written material and consult with counsel. If the DFO believes it is appropriate to approve the request, the DFO should provide the taxpayer an opportunity to explain its position. The DFO conveys the final decision to the examiner in writing.  

Conclusion

While the Directive is not authoritative guidance on which taxpayers may rely, it shows that the IRS may exercise some restraint before asserting the Economic Substance Penalty in an audit. The Directive establishes a procedural framework under which examiners must operate that will, hopefully, avoid the arbitrary application of the economic substance doctrine. In addition, the Directive’s detailed list of facts and circumstances provides some basis for taxpayers to evaluate potential transactions, and the potential exposure to the Economic Substance Penalty.