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What’s next for IRS/Treasury regulations in response to Executive Orders?


Salvatore Russo

What’s next for IRS/Treasury regulations in response to Executive Orders?

With the release of regulations on centralized partnership audits, many taxpayers hope that it will signal the re-start of a regular flow of much-needed guidance from the Treasury Department and the IRS that has been virtually stopped dead in its tracks since January 20. Others caution that the floodgates have not been opened and that the impact of several Executive Orders in discouraging guidance will be felt well into next year. Also bearing upon the recent lack of guidance are the critical vacancies within Treasury’s Office of Tax Policy that have been taking longer than usual to fill.

Reports are that Treasury officials have been working behind-the-scenes in drafting a new guidance plan. The plan not only includes prospects for new guidance but also a fresh look at recent guidance that may need to be withdrawn or streamlined. A June 21 deadline set by Executive Order 13777, for Treasury, among other federal agencies, to show progress in “identifying regulations for repeal, replacement or modification,” reportedly has been met but details will not be made public.

Likewise, a 60-day deadline within Executive Order 13789 also ended June 21 for Treasury to review all significant tax regulations issued since January 1, 2016. That latter report consists of an interim report to the President that identifies those regulations that (i) impose an undue financial burden on United States taxpayers; (ii) add undue complexity to the federal tax laws; or (iii) exceed the statutory authority of the Internal Revenue Service. No indication has been made regarding whether that report will be made public. A full report is due in another three months.

In the meantime, Treasury on June 12 requested public comments and recommendations for Treasury, pursuant to Executive Order 13777, on regulations “that can be eliminated, modified, or streamlined in order to reduce burdens,” carrying a 45-day deadline. Based on the Executive Orders, consensus is also that the IRS’s next “Priority Guidance Plan” will carry significant amendments from the last one.

What’s on the chopping block?

In an effort to preview what recommendations and action may result from the EOs, here is a list of some of the regulations that are most likely to be amended or withdrawn, based upon feedback from a variety of stakeholders that have weighed in so far with public comments: .

Comment. Stakeholder responses have not always been negative, with the recognition that complexity is inherent in certain rules that are the result of complex legislative provisions that only Congress can change.

Debt/Equity: TD 9790Final regulations under Code Sec. 385 address the recharacterization of debt as equity in certain situations with the purpose of minimizing erosion of the federal income tax base. These regs are at the top of many stakeholders’ lists of those rules that should be withdrawn. Complaints focus on both the scope of the regulations being too broad and the documentation and analysis requirements that begin in 2018 as being too burdensome for intercompany debt issuance.

Serial inverters: TD 9761. Final and temporary regulations under Code Sec. 7874 are designed, in particular, to prevent “serial inverters” in which a foreign entity completes a number of U.S. domestic acquisitions in a manner that circumvents the application of Code Sec. 7874. Some taxpayers complain that the rules are overly complex and present risks and burdens on taxpayers engaged in “run-of-the-mill” cross border mergers and acquisitions.

Spin-offs: REG-134016-15. These proposed regulations would tighten the requirements for corporations to spin off controlled corporations tax-free to their shareholders, along with providing new bright-line standards for triggering the device test and for satisfying the active trade or business test. These regs are criticized as being susceptible to being applied too broadly by the IRS. In addition, asset valuation rules set forth in those regs have not been drafted to reflect other legitimate concerns, according to critics.

Estate tax valuation: REG-163113-02. These regulations would change the valuation of interests in family-owned business for estate, gift and generating-skipping transfer tax purposes. Many stakeholders report that these regs under Code Sec. 2704 go too far in preventing abuse of existing rules by being too broad and preventing valuation discounts for lack of control and marketability.

Consistent basis for estates/beneficiaries: REG-127923-15. These regulations under Code Secs. 1014(f) and 6035 require consistent basis reporting between estates and the person acquiring property from the descendent by requiring basis reporting. Complaints lodged against these proposed regs include overreaching on the zero basis rule and supplemental filings that can span over many years.

Leveraged partnership/disguised sales: TDs 9787 and 9788These regulations address disguised sales and allocation of liabilities and introduce restrictions on leveraged partnership transactions. Criticism of these regs focuses primarily on the fact the rules no longer allow a partner full basis on guaranteed debt for purposes of determining if there has been a taxable event when debt is transferred to the partnership, even when that guarantee meets the requirements of the new final rules concerning debt guarantees.

Foreign partner transfers: TD 9814, REG-127203-15. Temporary and proposed regulations under Code Sec. 721 address transfers of appreciated property by U.S. persons to partnerships with foreign partners related to the transferor. Complaints against these regs include their overly-broad reach when anti-abuse rules would suffice, their retroactive application, and their required use of the remedial method under Code Sec. 704(c).

Withholding on foreign investors: TD 9815. Effective January 1, 2018, regulations would impose withholding tax on what critics have characterized as a broad universe of transactions that have generally been viewed as non-abusive. Critics have said that these prospective dividend equivalent rules are costly for the financial industry, making U.S.-issued stocks and securities much less attractive to international investors.

Tax-exempt bonds: REG-129067-15. These proposed reliance regulations provide a new definition of a political subdivision for tax-exempt bonds. Critics say the rules impose overly broad restrictions that may limit infrastructure projects.