Incentives Update November 2017

 

 

 

IRS issues a directive to streamline R&D credit exams, which provides numerous benefits

 

Taxpayers and the IRS, during exam, have spent many hours going through issues and arguments related to Qualified Research Expenses (QREs) for the Research and Development Credit (R&D Credit). Recently the Large Business & International (LB&I) division of the IRS released guidance for large taxpayers to verify the QREs on the Form 6765 with detail of research and development expenses from its financial statement.

Basics of the guidance

In a memorandum dated Sept. 11, 2017, the LB&I division of the Internal Revenue Service (IRS) issued guidance to all LB& I employees regarding the examination of the credit for increasing research activities under tax code Section 41 claimed by LB& I taxpayers (the directive).

In the directive (LB&I-04-0917-005), a taxpayer with assets of at least $10 million who follow GAAP to prepare their certified audited financial statement can utilize this directive. The taxpayer must show a separate line item or show a separately stated note, the amount of currently expensed ASC 730 R&D. In addition, the taxpayer must attach a certification statement described in the directive.

The Adjusted ASC 730 is the amount currently expensed on a taxpayer’s certified audited financial statements pursuant to ASC 730 for U.S. Generally Accepted Accounting Principles (U.S. GAAP) purposes, with certain specified adjustments as required in the directive.
The directive applies only to original returns timely filed (including extensions) on or after Sept. 11, 2017, the date of the directive (publicly released Sept. 22) and only to LB& I taxpayers, i.e., those whose assets are equal to or greater than $10 million.
If the taxpayer satisfies these items above, the IRS examiners will not challenge the QREs that align with adjustment to the financial statement R&D. The whole intent of the directive is to reduce time during exam to reach a reasonable conclusion of what are QREs for taxpayers. However, any additional amounts of QREs claimed by the taxpayer on Form 6765 for the credit year over the Adjusted ASC 730 amount are subject to a risk assessment for an examination. In the end, even though the directive has a specific purpose, taxpayers need to evaluate their type of activities and level of effort needed to comply to with the directive.

Key Questions

Since its release, the directive has generated much interest, and along with the interest, many questions have arisen on the application of the directive. Below are some of the questions raised and assuming more will follow as it is applied.

  • What information will the IRS require to support QREs under this Directive?

The directive provides a list of items, but it is not intended to be an exhaustive list. Taxpayers will need to evaluate their facts to determine the best way to show the LB& I exam team how they arrived at their Adjusted ASC 730 amounts and related support that ties back to the ASC 730 reporting. Note that any Form 6765 QREs that are in excess of the Adjusted ASC 730 amount may be subject to the normal audit process.

To comply with the certification process of the directive, LB&I requires the taxpayer to retain documents from the tax year. The list of documents is as follows, but is not limited to these documents. A taxpayer’s facts will need to be considered to determine what other documents should be retained.

 

  • Certified Audited Financial Statement for the Credit Year including auditor’s certifying opinion;
  • Taxpayer’s Chart of Accounts;
  • List of U.S. ASC 730 Financial Statement Cost Centers that make up the ASC 730 Financial Statement R&D amount shown in Step 1 of Appendix C.
  • All ASC 730 R&D GL Accounts with account balance details that make up the ASC 730 Financial Statement R&D amount shown in Step 1 of Appendix C.
  • List of ASC 730 R&D GL Accounts with account balances that make up the adjustments in Steps 2 through 4 of Appendix C.
  • Taxpayer’s organization chart showing employees and levels of management for the Credit Year.
  • Executed contracts pursuant to which Taxpayer is performing ASC 730 research in order to comply with the terms of the contract.
  • Executed contracts pursuant to which persons other than employees of Taxpayer are performing ASC 730 research on behalf of Taxpayer. This would include sufficient information to show what research was performed outside the U.S.

List of employees with their respective W-2 Wage amounts claimed as additions to U.S. ASC 730 Financial Statement R&D in Step 4 of Appendix C, which list would also identify for the applicable taxable year each employee’s job title and reporting level and the cost center where each of those employees worked.

  • Can I eliminate “interviews” or “surveys” of engineering or research individuals during the R&D credit compliance process?

The intent of the directive is to streamline the exam process for the “typical” R&D, but an ancillary benefit is that taxpayers could eliminate some time and resources needed from engineering or research staff. In the R&D credit process, these individuals typically provide contemporaneous documentation and also provide allocations of their projects and/or activities. Now the directive will allow taxpayers to focus on the documents required for the directive and only other items claimed outside the directive, hence reducing the need to depend on those individuals.

  • Does the directive apply to certain industries?

This directive was drafted by LB& I in consultation with the technology industry, but it is not limited to any industry. This directive, is similar to a directive issued for the pharmaceutical industry for costs within certain drug phases. However, there are many industries performing qualified research that report little or no ASC 730 amounts in their financial statements. The directive will not benefit those companies.

  • How do you apply or elect this Directive?

The directive does not require a formal election or application. It only requires that Taxpayers satisfy the conditions in the directive. Taxpayers who satisfy the conditions of the directive may attach the completed disclosure statements at the time of filing of the Federal income tax return; alternatively, taxpayers may provide the completed disclosure statements at the outset of the examination.

General Requirements of the Directive

The directive provides examination guidance to LB& I agents, which means no other offices or divisions within the IRS are subject to the directive, namely, Appeals and Small Business and Self Employment (SBSE). Where a taxpayer appeals LB& I’s proposed assessment upon audit, it is uncertain how Appeals will respond to disputes over the application or interpretation of the directive.

In order to claim the benefits of the directive, LB& I taxpayers must:

  • Follow U.S. GAAP to prepare their Certified Audited Financial Statements, which show as a separate line item on the income statement OR show separately stated in a note the amount of the currently expensed ASC 730 Financial Statement R& D; and

 

  • Provide completed disclosure statements contained in Appendices A through D of the directive, including the Certification Statement in Appendix A.The directive does not require taxpayers to attach the completed disclosure statements at the time of filing of the Federal income tax return; instead taxpayers may provide the completed disclosure statements upon examination. The directive instructs the audit team to verify at the beginning of the examination of the research credit whether the taxpayer followed or plans to follow the directive.

Benefits of Utilizing the Directive

In reviewing the directive, there could be additional benefits to taxpayers in applying this directive. Here is an explanation on a few initially observed.

  • Increase financial certainty for a large portion of the R&D credit
    • In today’s FIN 48 and UTP environment taxpayers need to measure the risk associated with their R&D credit. This directive can significantly reduce the risk level associated with the R&D credit, which has a positive financial impact.
  • Minimize engineering and research employee involvement from the compliance of the R&D credit
    • Many taxpayers have to work significantly to communicate, educate, and capture information from the engineering and researching employees within their organization. The directive allows taxpayers to work around those individuals and require little if any of their time and energy towards the R&D credit.
  • Streamline the IRS exam towards the R&D credit
    • Taxpayers can settle a typically contentious issue rather quickly under this directive, and focus only on the items outside of the directive (contract research, e.g.). In addition, the directive has a “cap” like feeling to the application of the process.

Conclusion

In the end, taxpayers need to address the directive within their current framework of capturing the R&D credit. The challenge is that the application of the directive within exam will not occur for another two years, but it’s intent could be utilized today to streamline and improve the R&D credit process. During the upcoming tax compliance season, it would be prudent to analyze if the directive provide benefit to a taxpayer’s current R&D credit process.

Leave a Reply

Your email address will not be published. Required fields are marked *

Incentives Update 01-06-2017

Nebraska Legislative Reminder/Update.

  • The Nebraska Legislature began its 2017 session on Wednesday (1/4/17). The 105th Legislature (1st Session) is a 90-day session, which is slated to end June 2, 2017.
  • There are 17 new senators, 5 of which defeated incumbents, and 49 total senators within the legislative body.
  • Carryover legislation does not occur in this session, but it’s still anticipated that hundreds of new bills will be proposed through the January 18th Common themes for primary legislation include  creating a new two-year state budget, address tax reforms (all-the-while dealing with a $900 million budget shortfall) and fixing the state prison system. In addition, and specific to business  incentives, there will be a proposal for a new business incentive legislation (to replace the Nebraska Advantage Act) and additional monies requested for the Customized Job Training fund.

Jim Scheer of Norfolk named as the new Speaker of the unicameral.

Senators voted 27-22 to elect Sen. Scheer, whom will set the Legislature’s daily agenda and play a key role in deciding when legislation gets debated.

New Committee Chairs of the 105th Legislature:

Sen. Lydia Brasch of Bancroft for Agriculture Committee
Sen. John Stinner of Gering for Appropriations Committee
Sen. Brett Lindstrom of Omaha for Banking, Insurance and Commerce Committee
Sen. Joni Albrecht of Thurston for Business and Labor Committee
Sen. Mike Groene of North Platte for Education Committee
Sen. Tyson Larson of O’Neill for General Affairs Committee.
Sen. John Murante of Gretna for Government, Military and Veterans Affairs Committee
Sen. Merv Riepe of Omaha for Health and Human Services Committee
Sen. Laura Ebke of Crete for Judiciary Committee
Sen. Dan Hughes of Venango for Natural Resources Committee
Sen. Mark Kolterman of Seward for Nebraska Retirement Systems Committee
Sen. Jim Smith of Papillion for Revenue Committee
Sen. Curt Friesen of Henderson for Transportation and Telecommunications Committee
Sen. Justin Wayne for Urban Affairs Committee
Sen. Mike Hilgers of Lincoln for Rules Committee
Sen. Dan Watermeier of Syracuse for Executive Board

Performance Audit Results (of Tax Incentives) are in.

In November 2016, as a result of the passage of LB 1022 (during the 2016 legislative session), the Legislative Audit Office completed their performance audit of Nebraska’s tax incentive programs (100+ pages). The audit identified that, as of 2014, there were 78 incentivized companies that had earned $736 million in benefits through the Advantage Act. Nearly two-thirds of those benefits were tax credits on investments such as new construction, while 16 percent were credits on pay for new workers. A link to the report is located at the Nebraska Legislative website at http://www.nebraskalegislature.gov/pdf/reports/audit/naa_2016.pdf.


Economic Development around the Country.

During the past two years, Amazon.com has announced eight fulfillment centers in Illinois alone. In December, Amazon has made public additional plans to build a $90 million distribution hub in/near Lavonia, Michigan and another in Aurora, Illinois. The plant in Aurora will employ 1,000 associates and contain approximately 1 million square feet. Once construction is complete for the most recent announcements, Amazon will have created more than 7,000 full-time jobs in Illinois.

Carrier, in November, reached an agreement to keep approximately 1,000 factory jobs at its furnace plant in Indiana. Earlier in the year, Carrier had plans to relocate the plant’s manufacturing activity to Mexico.

CF Industries Holdings, a global leader in the manufacturing and distribution of nitrogen products, during December, successfully commissioned its new ammonia and urea plants at the company’s Nitrogen Complex in Port Neal, Iowa. The construction project cost in excess of $2B and at peak construction, there were approximately 4,500 employees working at the site.

A Minnetonka, Minnesota based company (CliqStudios), which is an online retailer of semi-custom kitchen cabinets, will invest $1.95 million to locate a new cabinet design center in St. Louis, Missouri. The company plans to hire 98 associates.

CoStar Group, a leading provider of commercial real estate information, analytics and online.

Leave a Reply

Your email address will not be published. Required fields are marked *