4.6 Other Topics
4.6.1 Accounting for the Tax Effects of Tax Positions Expected to Be Taken in an Amended Tax Return or Refund Claim or to Be Self-Reported Upon Examination
In certain jurisdictions, an entity may elect to take a certain tax
position on its original tax return but subsequently decide to take an alternative
tax position (which is also acceptable) in an amended return. For example, an entity
may amend a previously filed income tax return to retroactively elect a deduction
for foreign taxes paid rather than to claim a credit or vice versa, or to file a
refund claim to carry back a tax operating loss or tax credit to a prior year.
Alternatively, an entity under examination may present to the examiner
self-identified adjustments (i.e., affirmative adjustments) to change the amount of
income, deductions, or credits reflected in the previously filed tax return that is
under examination.2
The decision to file an amended tax return or refund claim or to self-report a tax
position upon examination may be made before the end of the reporting period even
though the process of actually preparing the amended tax return/refund claim, or
self-reporting the tax position, might not occur until after the reporting period
ends.
An entity should account for the tax effects of its intent to file amended tax
returns or refund claims or to report self-identified audit adjustments (i.e.,
affirmative adjustments) in its financial statements by using the guidance in ASC
740-10. ASC 740-10-05-6 states, in part:
This Subtopic provides guidance for
recognizing and measuring tax positions taken or expected to be taken in a
tax return that directly or indirectly affect amounts reported in
financial statements. [Emphasis added]
In addition, ASC 740-10-25-2 states:
Other than the exceptions identified in the
following paragraph, the following basic requirements are applied in accounting
for income taxes at the date of the financial statements:
- A tax liability or asset shall be recognized based on the provisions of this Subtopic applicable to tax positions, in paragraphs 740-10-25-5 through 25-17, for the estimated taxes payable or refundable on tax returns for the current and prior years.
- A deferred tax liability or asset shall be recognized for the estimated future tax effects attributable to temporary differences and carryforwards.
While an amended return or refund claim may be filed after the reporting period has
ended, an entity should account for the tax effects in the period in which it
concludes that it expects to amend the return or file the refund claim. Such
accounting should be consistent with the general recognition and measurement
principles of ASC 740-10. An entity should determine its intent with respect to the
filing of an amended return or refund claim as of each reporting date. Changes in
intent with respect to the filing of an amended return or refund claim should be
supported by a change in facts or circumstances.
In a manner consistent with the above discussion, refund claims that an entity
intends to file in connection with the carryback of tax attributes (e.g., an NOL or
a tax credit) should generally be reflected as an income tax receivable (after the
entity considers the recognition and measurement principles of ASC 740-10) in the
reporting period in which the entity concludes that it will file the refund
claim.
Affirmative adjustments should be accounted for similarly to tax positions that will
be taken on a tax return (i.e., similarly to an amended return or refund claim).
That is, the entity should account for the tax positions associated with affirmative
adjustments in the period in which the entity concludes that it intends to present
the positions to an examiner in a future tax examination. Generally, we would expect
this to be the period in which the position was originally taken. Such accounting
should be consistent with the general recognition and measurement principles of ASC
740-10.
Note that this section does not address the additional
considerations that can arise when the filing of the amended tax return or refund
claim, or the decision to self-report a tax position, represents the correction of
an error. See Section 12.6.1 for guidance on
those considerations.
4.6.2 State Tax Positions
Certain operational activities may be taxable in multiple jurisdictions (e.g.,
federal and state) or may need to be allocated between these jurisdictions on the
basis of the application of tax rules (e.g., domestic versus international
authorities, state versus state authorities). It is not always certain how these
rules should be applied and therefore, management routinely makes judgments about
the application of various technical rules (e.g., regarding the jurisdictions in
which to report tax positions and how to allocate revenue and expenses among these
jurisdictions). In addition to being subject to federal income taxes, an entity
could also be subject to income tax imposed by a state or states. While there are
similarities between the federal and state income tax rules, there are also
differences that give rise to unique state tax positions.
4.6.2.1 Economic Nexus
“Economic nexus” refers to a view, held by some states, that a
company deriving income from the residents of a state should be taxable even
when the connection with the state is not physical (i.e., its only contact with
the state is economic). Many states have enacted tax laws that could subject an
out-of-state entity to income taxes in that state in accordance with the
economic nexus theory even when the entity has no physical presence in that
state.
An entity should consult all relevant law and authorities to
determine whether, for a state in which it does not file income tax returns, it
is more likely than not that it does not have a filing obligation in that state.
While the concept of economic nexus may sometimes be ambiguous and difficult to
apply, the entity must, to comply with the requirements of ASC 740, assess the
technical merits of its conclusion that it does not have economic nexus in a
state. An entity should consider engaging specialists for assistance in
performing this assessment.
An entity that concludes that it is more likely than not that it
does not have economic nexus in a particular state has met the recognition
threshold for this tax position. Conversely, an entity that has a reasonable
basis for not filing a state income tax return in a particular state but has
concluded that it is more likely than not that it has economic nexus in that
state has not met the recognition threshold.
Under ASC 740, if a tax position does not meet the recognition
threshold, a liability is recognized for the total amount of the tax benefit of
that tax position (see Section 4.2). That liability should not be subsequently
derecognized unless there is a change in technical merits, the position is
effectively settled, or the statute of limitations expires. In many
jurisdictions, it is common for the statute of limitations to begin to run only
when a tax return is filed. Therefore, when an entity does not file a state
income tax return in such a jurisdiction, the entity cannot consider the statute
of limitations in determining whether it has a filing obligation and UTB
liability in that state.
Some state tax authorities may have a widely understood
administrative practice or precedent under which the authority would, in the
event of an examination and in the absence of a voluntary disclosure agreement,
look back no more than a certain number of years to determine the amount of
income tax deficiency due (i.e., a “lookback period”). If a state tax authority
has such a practice, the entity should consider it when calculating the
liability for UTBs that meet certain conditions.
In the absence of a widely understood administrative practice or
precedent, however, ASC 740 requires accrual of the state income tax liability
for every year in which it is more likely than not that the entity had economic
nexus with that state, and the state tax liability is determined as if state
income tax returns were prepared in accordance with ASC 740’s recognition and
measurement guidance. Interest and penalties would be accrued under ASC 740 and
on the basis of the relevant tax law. Such liabilities for UTBs would be
derecognized only when (1) a change in available information indicates that the
technical merits of the position subsequently meet the more-likely-than-not
recognition threshold or (2) the position is effectively settled.
For example, assume that an entity has not filed state income
tax returns in a particular state and is aware of a widely understood
administrative practice under which only entities that have not historically
filed tax returns with that state must file six years of tax returns.
Accordingly, at the end of each year, the entity is permitted to record a
liability for UTBs for the amount of tax due to the state for the most recent
six years as if tax returns, prepared in accordance with ASC 740’s recognition
and measurement, were filed for the most recent six years. Interest and
penalties would be accrued on such deficiencies as required by ASC 740 and on
the basis of the relevant tax law.
An entity should be able to demonstrate that it has considered
all relevant facts and circumstances in reaching its conclusion about the
maximum number of previous years that the state tax authority will require the
entity to file under its widely understood administrative practices or
precedents. The number of such previous years should not change unless new
information becomes available. This guidance applies only to economic nexus when
a statute of limitations does not expire because an income tax return has not
been filed; it should not necessarily be applied to other situations.
An entity may also consider entering into a state’s voluntary
disclosure program, which may limit the number of prior years for which tax
returns will be required. The terms and conditions of such programs vary among
states; generally, however, voluntary disclosure programs limit lookback periods
to three or four years. In addition, when assessing its UTB liabilities, an
entity should generally not consider the potential to limit the lookback period
until the reporting period in which it enters the particular state’s voluntary
disclosure program.3 Therefore, when the entity has entered into such a program, its liability
for UTBs for that state’s income taxes would be limited by the number of prior
years for which tax returns will be required under the terms and conditions of
the program, plus accrued interest and penalties, if applicable. Entities should
consult their tax advisers regarding the effect of entering into a state’s
voluntary disclosure program.
4.6.2.2 Due Process
In addition to considering the application of relevant tax rules
in accounting for state tax positions, an entity should also consider the “due
process clause” and the “commerce clause” of the U.S. Constitution, which limit
the states’ rights to tax.
The due process clause of the Fourteenth Amendment requires a
definite link between a state and the person, property, or transaction it seeks
to tax; the connection need not include physical presence in the state. This
clause also requires that the income attributed to the state for tax purposes be
rationally related to values connected with the taxing state. The commerce
clause of the Constitution gives Congress the authority to regulate commerce
among the states.
No state or federal law is allowed to violate the Constitution.
In evaluating all tax positions for recognition under ASC 740, as well as for
technical merits under the tax law as written and enacted, an entity may need to
assess whether the U.S. Supreme Court would overturn that tax law. This analysis
is required for recognition even though the court issues certiorari for tax
matters involving the constitutionality of state income taxes only in rare
circumstances. Generally, an entity will conclude that the court would uphold
the tax law. However, in certain situations, an entity may conclude that the
applicable tax law violates the Constitution.
For example, with respect to economic nexus, an entity may
determine that, under the tax law, it is more likely than not that it has
incurred a tax obligation to the tax authority. However, the entity may also
conclude that the same tax law more likely than not violates the Constitution.
In other words, if the entity were to litigate this position to the U.S. Supreme
Court, it is more likely than not that the court, after evaluating such a law,
would deem that law unconstitutional; in such a situation, the entity would
therefore not have a tax obligation to the tax authority.
An entity must have sufficient evidence to support its
conclusion about the constitutionality of the current tax law. This evidence
will often be in the form of a legal opinion from competent outside counsel. The
legal opinion would state whether the tax law violates the Constitution and
whether it is more likely than not that the U.S. Supreme Court would overturn
the enacted tax law.
4.6.3 Uncertain Tax Positions in Transfer Pricing Arrangements
Transfer pricing relates to the pricing of intra-entity and related-party
transactions involving transfers of tangible property, intangible property,
services, or financing between affiliated entities. These transactions include
transfers between domestic or international entities, such as (1) U.S. to foreign,
(2) foreign to foreign, (3) U.S. to U.S., and (4) U.S. state to state.
The general transfer pricing principle is that the pricing of a related-party
transaction should be consistent with the pricing of similar transactions between
independent entities under similar circumstances (i.e., an arm’s-length
transaction). Transfer pricing tax regulations are intended to prevent entities from
using intra-entity charges to evade taxes by inflating or deflating the profits of a
particular jurisdiction the larger consolidated group does business in. Even if a
parent corporation or its subsidiaries are in tax jurisdictions with similar tax
rates, an entity may have tax positions that are subject to the recognition and
measurement principles in ASC 740-10-25-6 and ASC 740-10-30-7.
An entity’s exposure to transfer pricing primarily occurs when the entity includes in
its tax return the benefit received from a related-party transaction that was not
conducted as though it was at arm’s length. A UTB results when one of the related
parties reports either lower revenue or higher costs than it can sustain (depending
on the type of transaction). While a benefit is generally more likely than not to
result from such a transaction (e.g., some amount will be allowed as an interest
deduction, royalty expense, or cost of goods sold), the amount of benefit is often
uncertain because of the subjectivity of valuing the related-party transaction.
An entity must apply the two-step process (i.e., recognition and measurement) under
ASC 740-10 to all uncertain tax positions within its scope. The requirements of ASC
740 in the context of transfer pricing arrangements, including related
considerations and examples, are outlined below.
4.6.3.1 Determination of the Unit of Account
Before applying the recognition and measurement criteria, an entity must identify
all material uncertain tax positions and determine the appropriate unit of
account for assessment. Intra-entity and related-party transactions under
transfer pricing arrangements are within the scope of ASC 740 since they
encompass “[a]n allocation or a shift of income between jurisdictions.”
Further, tax positions related to transfer pricing generally should be evaluated
individually, since two entities and two tax jurisdictions are involved in each
transaction. Such an evaluation should be performed even when the transaction is
supported by a transfer pricing study prepared by one of the entities.
Typically, there would be at least two units of account. For example, the price
at which one entity will sell goods to another entity will ultimately be the
basis the second entity will use to determine its cost of goods sold. In
addition, some transfer pricing arrangements could be made up of multiple
components that could be challenged individually or in aggregate by a taxing
authority. Therefore, there could be multiple of units of account associated
with a particular transfer pricing arrangement. See Section 4.1.2.2 for more information about determining the unit
of account.
4.6.3.2 Recognition
ASC 740-10-25-6 indicates that the threshold for recognition has
been met “when it is more likely than not, based on the technical merits, that
the position will be sustained upon examination.” An entity should apply the
recognition threshold and guidance in ASC 740 to each unit of account in a
transfer pricing arrangement. In some cases, a tax position will be determined
to have met the recognition threshold if a transaction has taken place to
generate the tax positions and some level of benefit will therefore be
sustained. For example, assume that a U.S. parent entity receives a royalty for
the use of intangibles by a foreign subsidiary that results in taxable income
for the parent and a tax deduction for the foreign subsidiary. The initial tax
filing (income in the receiving jurisdiction and expense/deduction in the paying
jurisdiction) may typically meet the more-likely-than-not recognition threshold
on the basis of its technical merits, since a transaction between two parties
has occurred. However, because there are two entities and two tax jurisdictions
involved, the tax jurisdictions could question whether the income is sufficient,
whether the deduction is excessive, or both.
4.6.3.3 Measurement
After an entity has assessed the recognition criteria in ASC 740 and has
concluded that it is more likely than not that the tax position taken will be
sustained upon examination, the entity should measure the associated tax
benefit. This measurement should take into account all relevant information,
including tax treaties and arrangements between tax authorities. As discussed
above, each tax position should be assessed individually and a minimum of two
tax positions should be assessed for recognition and measurement in each
transfer pricing transaction.
For measurement purposes, ASC 740-10-30-7 requires that the tax benefit be based
on the amount that is more than 50 percent likely to be realized upon settlement
with a tax jurisdiction “that has full knowledge of all relevant information.”
Intra-entity or transfer pricing assessments present some unique
measurement-related challenges that are based on the existence of tax treaties
or other arrangements (or the lack of such arrangements) between two tax
jurisdictions.
Measurement of uncertain tax positions is typically based on facts and
circumstances. The following are some general considerations (not all-inclusive):
- Transfer pricing studies — An entity will often conduct a
transfer pricing study with the objective of documenting the appropriate
arm’s-length pricing for the transactions. The entity should consider
the following when using a transfer pricing study to support the tax
positions taken:
- The qualifications and independence of third-party specialists involved (if any).
- The type of study performed (e.g., benchmarking analysis, limited or specified-method analysis, U.S. documentation report, Organisation for Economic Co-operation and Development report) and, to avoid incurring penalties, whether it satisfies the particular jurisdiction’s requirements.
- The specific transactions and tax jurisdictions covered in the study.
- The period covered by the study.
- The reasonableness of the model(s) and the underlying assumptions used in the study (i.e., comparability of companies or transactions used, risks borne, any adjustments made to input data).
- Any changes in the current environment, including new tax laws in effect.
- Historical experience — An entity should consider previous settlement outcomes of similar tax positions in the same tax jurisdictions. Information about similar tax positions, in the same tax jurisdictions, that the entity has settled in previous years may serve as a good indicator of the expected settlement of current positions.
- Applicability of tax treaties or other arrangements — An entity should consider whether a tax treaty applies to a particular tax position and, if so, how the treaty would affect the negotiation and settlement with the tax authorities involved.
- Symmetry of positions — Even though each tax position should be evaluated individually for appropriate measurement, if there is a high likelihood of settlement through “competent-authority” procedures under the tax treaty or other agreement, an entity should generally use the same assumptions about such a settlement to measure both positions (i.e., the measurement assumptions are similar, but the positions are not offset). Under the terms of certain tax treaties entered into by the United States and foreign jurisdictions, countries mutually agree to competent-authority procedures to relieve such companies of double taxation created by transfer pricing adjustments to previously filed returns. If competent-authority procedures are available, entities should carefully consider whether to pursue relief through them and whether the particular jurisdictions involved are likely to reach an agreement with respect to the particular disputed transactions.
An entity should carefully consider whether the tax
jurisdictions involved strictly apply the arm’s-length principle. Some
jurisdictions may have a mandated statutory margin that may or may not equate to
what is considered arm’s length by another reciprocal taxing jurisdiction. In
these situations, when an entity measures positions, it may be inappropriate for
the entity to assume that they are symmetrical.
The example below illustrates the above considerations. See
Section 13.2.4
for a discussion of balance sheet presentation in transfer pricing arrangements
under ASC 740.
Example 4-7
Assume that a U.S. entity licenses its name to its
foreign subsidiary in exchange for a 2 percent royalty
on sales. This example focuses on the two separate tax
positions that the entity has identified in connection
with the royalty transaction. For tax purposes, the U.S.
entity recognizes royalty income in its U.S. tax return
and the foreign subsidiary takes a tax deduction for the
royalty expense in its local-country tax return. Both
positions are deemed uncertain, since the respective tax
authorities may either disallow a portion of the
deduction (deeming it to be excessive) or challenge the
royalty rate used in this intra-entity transaction
(deeming it to be insufficient). The entity should
evaluate both tax positions under the recognition and
measurement criteria of ASC 740. In this example, the
“more-likely-than-not” recognition threshold is
considered met since a transaction has occurred between
the two parties and it is therefore more likely than not
that the U.S. entity has income and the foreign
subsidiary has a deduction.
The U.S. entity believes that if the IRS
examines the tax position, it will more likely than not
conclude that the royalty rate should have been higher
to be in line with an arm’s-length transaction. In the
absence of any consideration of relief through an
international tax treaty, the lowest royalty rate that
the entity believes is more than 50 percent likely to be
accepted by the IRS is 5 percent, on the basis of
historical experience and recent transfer pricing
studies. A higher royalty rate would not only trigger an
increase in taxable income for the U.S. entity but would
also result in double taxation of the additional royalty
for the amount that is in excess of the deduction
claimed by the foreign subsidiary (i.e., 3 percent in
this instance — calculated as the 5 percent estimated
arm’s-length amount less the original 2 percent recorded
in the transaction). If there is a tax treaty between
the United States and the relevant foreign tax
jurisdiction, that treaty will typically include
procedures that provide for competent-authority relief
from double taxation. Under such an agreement, the two
tax authorities may agree at their discretion on an
acceptable royalty rate in each jurisdiction. One tax
authority would make an adjustment (i.e., increasing
revenue and taxable income) that would require a
consistent transfer pricing adjustment (i.e., increasing
deduction and reducing taxable income) in the related
party’s tax jurisdiction.
In this example, management determines
that it would pursue the competent-authority relief.
Accordingly, it concludes that it is appropriate to
recognize relief from double taxation because of the
expected outcome of competent-authority procedures.
Also, management has represented that the entity will
incur the cost of pursuing a competent-authority
process. Therefore, the U.S. entity records a liability
that would result from resolution of the double taxation
of this non-arm’s-length transaction if the original 2
percent royalty rate is increased through application of
the competent-authority process. Management of the U.S.
entity believes that a royalty rate of 3.5 percent is
the lowest percentage (i.e., greatest benefit) that is
more than 50 percent likely to be accepted by the two
tax jurisdictions under such a treaty on the basis of
its historical experience. Because there is a high
likelihood of settlement through the competent-authority
process, the foreign subsidiary should also use this
assumption when measuring the tax position to ensure
symmetry of the two tax positions under ASC 740. Note
that this example focuses on one tax position in each
jurisdiction; there may be other tax positions related
to this transfer pricing arrangement that would have to
be similarly analyzed.
4.6.4 Uncertainty in Deduction Timing
A deduction taken on an entity’s tax return may be certain except for the appropriate
timing of the deduction under the tax law in the applicable jurisdiction. In such
cases, the recognition threshold is satisfied and the entity should consider the
uncertainty in the appropriate timing of the deduction in measuring the associated
tax benefit in each period.
Example 4-8
Assume the following:
- An entity purchases equipment for $1,000 in 20X7.
- The entity’s earnings before interest, depreciation, and taxes are $1,200 each year in years 20X7–20Y1.
- For book purposes, the equipment is depreciated ratably over five years
- For tax purposes, the entity deducts the entire $1,000 in its 20X7 tax return.
- The entity has a 25 percent tax rate and is taxable in only one jurisdiction.
- There is no half-year depreciation rule for accounting or tax purposes.
- For simplicity, interest and penalties on tax deficiencies are ignored.
In applying the recognition provisions of ASC 740-10-25-5,
the entity has concluded that it is certain that the $1,000
equipment acquisition cost is ultimately deductible under
the tax law. Thus, the tax deduction of the tax basis of the
acquired asset would satisfy the recognition threshold in
ASC 740-10-25-6. In measuring the benefit associated with
the deduction, the entity concludes that the largest amount
that is more than 50 percent likely to be realized in a
negotiated settlement with the tax authority is $200 per
year for five years (the tax life is the same as the book
life).
Exclusive of interest and penalties, the entity’s
current-year tax benefit is unaffected because the
difference between the benefit taken in the tax return and
the benefit recognized in the financial statements is a
temporary difference.
However, although interest and penalties are ignored in this
example for simplicity, ASC 740-10-25-56 requires an entity
to recognize interest and penalties on the basis of the
provisions of the relevant tax law. In this case, the entity
would begin accruing interest in 20X8. Therefore, even
though this is a timing difference, the accrual of interest
(and penalties, if applicable) will have an impact on profit
and loss (P&L).
The 20X7 tax return reflects a $250
reduction in the current tax liability for the $1,000
deduction claimed. For book purposes, the entity will
recognize a balance sheet credit of $200, or ($1,000 – $200)
× 25%, for UTBs associated with the deduction claimed in
year 1. The liability for UTBs will be extinguished over the
succeeding four years at $50 ($200 × 25 percent) per year.
The entity would record the following journal entries,
excluding interest and penalties, for the tax effects of the
purchased equipment:
See Section 3.3.5 for a discussion related to the accounting for
tax method changes.
4.6.5 Deferred Tax Consequences of UTBs
Recording a liability for a UTB may result in a corresponding
temporary difference and DTA. The examples below illustrate how a DTA can arise from
the accounting for a UTB.
Example 4-9
Company A has taken an uncertain tax position in State B that
reduces its taxes payable by $10,000 in that state. In
assessing the uncertain tax position under ASC 740, A
determines that it is not more likely than not that the
position, on the basis of its technical merits, will be
sustained upon examination. Therefore, A records a $10,000
liability for the UTB.
Company A will receive an additional federal tax deduction if
it is ultimately required to make an additional tax payment
to the state. Therefore, A should record a DTA for the
indirect benefit from the potential disallowance of the
uncertain tax position taken on its tax return in State
B.
If the federal tax rate is 25 percent, A
would record the following journal entries to account for
the uncertain tax position and the indirect tax benefit:
Like other DTAs, the DTA created as a result of recording the
liability for the UTB should be evaluated for
realizability.
Example 4-10
Company A begins operations in State B but
does not file a tax return in that state. ASC 740-10-20
indicates that the “decision not to file a tax return” is a
tax position. In assessing the tax position under ASC 740, A
determines that it may have nexus in B and that it is not
more likely than not that the position, on the basis of its
technical merits, will be sustained upon examination.
Therefore, A records a $10,000 liability for the taxes
payable to B for the current year.
However, if A were to file a return in B, it would also have
a large deductible temporary difference that would result in
an $8,000 DTA in that state. Therefore, A should record a
DTA as a result of potential nexus in B and evaluate it for
realizability.
If the federal tax rate is 21 percent, A
would record the following journal entries to account for
the uncertain tax position and the related temporary
difference:
See Section 14.4.1.7 for further
discussion of the presentation of deferred taxes resulting
from UTBs.
4.6.6 UTBs and Spin-Off Transactions
In a spin-off transaction, a reporting entity (the “spinnor”) may
distribute one or more of its subsidiaries (“spinnees”) to its shareholders in the
form of a dividend. After the spin-off is finalized, complexities can arise in the
accounting for uncertain tax positions in the separate financial statements of the
spinnor and spinnee when, before a spin-off, they file a consolidated tax return as
a “consolidated return group.” Under U.S. federal tax law, members of a consolidated
return group are severally liable for all tax positions taken in the consolidated
return. The taxing authority typically seeks collection of the payment of the
consolidated return group’s tax liabilities from the parent of the consolidated
return group; however, if the IRS cannot collect from the parent of the consolidated
return group (e.g., the parent is insolvent), the IRS can seek payment from a
subsidiary of the consolidated return group. The example below illustrates the
accounting for UTBs in a spin-off transaction.
Example 4-11
Company A, in the current reporting period, spins off a
portion of its business that was conducted by Company B.
Before the spin-off, A and B were in the same federal
consolidated return group and (1) A had recognized a
liability for uncertain tax positions in its consolidated
financial statements associated with B’s operations and (2)
B had recognized the liability in its stand-alone financial
statements prepared under the separate-return approach (see
Section 8.3.1.1). Under the terms
of the separation agreement, A will be responsible for
settlement of the uncertain tax positions in tax returns for
periods before the spin-off. Company A is solvent as of the
date of the spin-off and is expected to remain so
afterward.
Company A
Upon completion of the spin-off transaction, A should
continue to recognize a liability associated with the
uncertain tax position. Because the uncertain tax position
was taken in a consolidated return group filed by A, the
primary obligor under the consolidated return regulations
was and will continue to be A. Accordingly, A should
continue to recognize the liability for the UTB associated
with the uncertain tax position under ASC 740.
Company B
Each of the following views is acceptable:
-
View A — Because A is the primary obligor, B cannot be the primary obligor and therefore should not continue to recognize the liability for the UTB. In accordance with the consolidated return regulations, the liability is retained by A, and B is typically liable only if A becomes insolvent. Accordingly, B no longer has an uncertain tax position under ASC 740 and would remove the liability with an offsetting credit to capital at the time of the spin-off. Company B would separately assess its contingent liability to the tax authority if A becomes insolvent under ASC 450.This view is consistent with the guidance in ASC 405-40 on obligations resulting from joint and several liability obligations, which can be applied by analogy even though income taxes are not within its scope. ASC 405-40-30-1 states:Obligations resulting from joint and several liability arrangements included in the scope of this Subtopic initially shall be measured as the sum of the following:
- The amount the reporting entity agreed to pay on the basis of its arrangement among its co-obligors
- Any additional amount the reporting entity expects to pay on behalf of its co-obligors. If some amount within a range of the additional amount the reporting entity expects to pay is a better estimate than any other amount within the range, that amount shall be the additional amount included in the measurement of the obligation. If no amount within the range is a better estimate than any other amount, then the minimum amount in the range shall be the additional amount included in the measurement of the obligation.
- View B — Because B is still an obligor under the consolidated return regulations, it should continue to record a liability for the UTB under ASC 740. The uncertain tax position was generated by B and presented in its separate company financial statements before the spin-off. In addition, although A insulates B from liability to a degree, B could be required to settle the uncertain tax position. Accordingly, B should apply ASC 740 in recording and subsequently measuring an uncertain tax benefit. Company B would also record an indemnification receivable, subject to (1) any contractual limitations on its amount and (2) management’s assessment of the collectibility of the indemnification asset (by analogy to the guidance in ASC 805-20-35-4), reflecting the fact that A has agreed to be responsible for settlement of the uncertain tax positions.
While View A and View B are both acceptable, the selected
method would represent an accounting policy that should be
consistently applied and appropriately disclosed.
See Section
11.3.6.5 for additional guidance on indemnification agreements.
Footnotes
2
Presenting affirmative adjustments upon examination, rather
than claiming the position on an originally filed income tax return, might
be part of the entity’s strategy to avoid penalties on a particular tax
position in a particular tax jurisdiction or to limit the jurisdiction’s
ability to make other changes to the year (i.e., changes that are unrelated
to the adjustment being sought by the entity).
3
Some states require an entity to be accepted into the voluntary
disclosure program before being afforded audit protection for previous
years.