TEI comments on dual consolidated loss rules: August 22, 2005.

On August 22, 2005, TEI filed the following comments with the Internal Revenue Service and U.S. Department of Treasury, relating to the proposed regulations on dual consolidated losses under section 1503(d) of the Internal Revenue Code. The comments were prepared under the aegis of TEI's International Tax Committee, whose chair is John J. Herson of Neenah Paper, Inc. Alan Richer and George Abowd of General Electric Company and Amy Behroozi of FedEx Services contributed materially to the preparation of the comments.

Section 1503(d) of the Internal Revenue Code provides that, except to the extent provided in regulations, the dual consolidated loss of a domestic corporation cannot be used to offset the income of a domestic affiliate in the year of the loss or any other taxable year. In May 2005, the Internal Revenue Service and U.S. Department of Treasury issued proposed regulations substantially revising the temporary and final regulations issued in 1989 and 1992. The proposed regulations were published in the May 19, 2005, issue of the Federal Register (70 FED. REG. 29867), and the June 20, 2005, issue of the Internal Revenue Bulletin (2005-25 I.R.B 1297). A hearing on the new rules is scheduled for September 7, 2005.

Background

Tax Executives Institute is the principal association of corporate tax executives in North America. TEI has approximately 5,400 individual members who represent more than 2,800 of the leading corporations in the United States, Canada, Europe, and Asia. TEI represents a cross-section of the business community and is dedicated to the development and effective implementation of sound tax policy, to promoting the uniform and equitable enforcement of the tax laws, and to reducing the cost and burden of administration and compliance to the benefit of taxpayers and government alike. As a professional association, TEI is firmly committed to maintaining a tax system that works--one that is administrable and, because it provides certainty, that taxpayers can comply with in a cost-efficient manner.

Members of TEI are responsible for managing the tax affairs of their companies and must contend daily with the provisions of the tax law relating to the operation of business enterprises. We believe that the diversity and professional training of our members enable us to bring an important, balanced, and practical perspective to the issues raised by the proposed regulations under section 1503(d) of the Code, relating to dual consolidated losses.

The Dual Consolidated Loss Rules

A. In General

Section 1503(d)(1) of the Internal Revenue Code precludes the dual consolidated loss (DCL) of any corporation from reducing the taxable income of any other member of the affiliated group for that or any other taxable year. Originally enacted as part of the Tax Reform Act of 1986, section 1503(d) was intended to prevent a single economic loss from being used to reduce the tax on two separate items of income, one of which is subject to current tax in a foreign country but not the United States and the other of which is taxed in the United States but not in the foreign jurisdiction (the so-called double dipping of losses). The provision was targeted at dual resident corporations because the ability of such corporations to use the same loss against both foreign and U.S. income taxes was perceived as giving undue tax advantage to foreign investors who could utilize the structure to make U.S. investments. (1) Two years later, section 1503(d) was amended to apply to unincorporated separate business units (i.e., foreign branches, partnerships, and hybrid entities). See Technical and Miscellaneous Revenue Act of 1988, [section] 1012. Under section 1503(d)(3), the government is authorized to issue regulations providing that any loss of a separate business unit is subject to the DCL rules in the same manner as if such unit were a wholly owned subsidiary.

The term "dual consolidated loss" is defined in Treas. Reg. [section] 1.1503-2(c)(5)(i) to mean the net operating loss of a domestic corporation incurred in a year in which the corporation is a dual resident corporation (DRC). The latter term is defined under Treas. Reg. [section] 1.1503-2(c)(2) as a separate unit of a domestic corporation or a domestic corporation that is subject to the income tax of a foreign country on its worldwide income or on a residence basis. To restrict the deduction of a dual consolidated loss, the regulations apply the separate return limitation year (SRLY) rules. Treas. Reg. [sub section] 1.1503-2(b)(1), (d)(2) (referring to Treas. Reg. [section] 1.1503-21(c)). (2)

In the preamble, the IRS and Treasury Department state that the new regulations address three concerns: (i) minimizing the cases of potential over-and under-application, (ii) taking into account updated U.S. entity classification regulations and rules so that the rules can be applied with greater certainty, and (iii) reducing administrative burdens imposed on taxpayers and the IRS. 2005-25 I.R.B. at 1298-99.

The current DCL rules are incredibly complex and difficult to understand and administer. With the advent of the check-the-box regime, these regulations have taken on added significance for taxpayers. We agree with the IRS and Treasury Department that a revision of the current rules is warranted.

B. Reducing Administrative Burden

The proposed regulations make several changes to make the rules more administrable.

1. Seeking Section 9100 Relief. The current regulations require various filings to be made on a timely filed return; upon discovery, taxpayers failing to make these filings in a timely manner must request an extension of time to file under Treas. Reg. [section] 301.9100-3. Because of the complicated nature of the DCL rules, many taxpayers may be unaware that they have a DCL compliance issue when they file their returns, leaving the burdensome and often protracted section 9100 relief process as their only option.

Prop. Reg. [section] 1-1503(d)-1(c) substitutes a reasonable cause standard whereby a taxpayer failing to make a required filing will be considered to have satisfied the timeliness requirement if the taxpayer can demonstrate--to the satisfaction of the Director of Field Operations (DFO)--that the failure was due to reasonable cause and not willful neglect. Perhaps as important, the proposed regulations will give the taxpayer more certainty by requiring the DFO to notify the taxpayer within 120 days of filing if it is determined either that the failure to comply was not due to reasonable cause or that additional time is needed to make this determination.

TEI believes that this approach is more reasonable than the current section 9100 relief procedure and will reduce the time in which taxpayers may obtain relief. We recommend, however, that the rule be clarified to permit a DFO's denial of relief to be appealed up the IRS chain of command. To minimize the administrative burdens of both the taxpayer and the IRS in the future, we also recommend that the reasonable cause exception be expanded to expressly include pre-effective date defective elections and certifications.

2. Making (g)(2) Elections. Current Treas. Reg. [section] 1.1503-2(g)(2) provides an exception to the general rule prohibiting the use of a DCL to offset the income of a domestic affiliate where an election (referred to as the "(g)(2)" election) is made. Under this exception, the consolidated group, unaffiliated DRC, or unaffiliated domestic owner must enter into an agreement certifying that no portion of the deductions or losses taken into account in computing the DCL have been, or will be, used to offset the income of any other person under the income tax laws of a foreign country. This agreement generally provides that if there is a triggering event during the 15-year period following the year in which the DCL was incurred (certification period), the taxpayer must recapture and report as income the amount of the DCL, and pay an interest charge. Under subparagraph (B) of Treas. Reg. [section] 1.1503-2(g)(2), certain events will not be considered a triggering event if the parties to the transaction enter into a closing agreement with the IRS. (3)

Prop. Reg. [section] 1.1503(d)-4(d) generally retains this exception, but shortens the certification period from 15 to 7 years and clarifies that a triggering event cannot occur after the expiration of the certification period. Although TEI welcomes the clarification, we recommend that a 5-year certification period be adopted, not only because the shorter time period should be sufficient to deter any perceived double-dipping of losses and deductions, but also because it is consistent with the recent amendment to the section 367(a) regulations, reducing the length of the required gain recognition agreement from 10 years to 5. We also recommend allowing the reduced certification period to be adopted with respect to pre-effective date DCLs.

Treas. Reg. [section] 1.1503-2(g)(2)(vi)(C) provides that annual certifications are not required with respect to a DCL of any separate unit other than a hybrid entity separate unit. The current regulations specifically exempt a true foreign branch from the annual certification requirement. The proposed regulations remove this exception, making the annual certification a requirement for any DCL subject to a domestic use election. The decision, if not reconsidered, will unnecessarily frustrate the stated objective of reducing the administrative burden for both the taxpayer and the IRS. Since the losses of true foreign branches are less likely to be put to a foreign use and any triggering events must be recaptured and reported to the IRS under the domestic use election, subjecting true foreign branches to annual certification is a significant increase in administrative burden. Therefore, TEI recommends that the exception from annual certification for foreign branch separate units be retained.

Prop. Reg. [section] 1.1503(d)-4(f)(2) also eliminates the closing agreement requirement and substitutes a new domestic use agreement requiring: (i) the unaffiliated domestic corporation or new consolidated group (subsequent elector) to enter into such an agreement; and (ii) the corporation or consolidated group that filed the original domestic use agreement (original elector) to file a statement with its tax return for the year of the event. (4)

TEI commends the IRS and Treasury Department for seeking ways to reduce the administrative burdens associated with the DCL rules. A significant amount of taxpayer and government resources are expended on closing agreements when triggering events occur and the rules bring some much needed simplification to the area. The proposed regulations represent a good start to simplifying this area.

C. Treating Separate Units as Domestic Corporations

Section 1503(d) of the Code provides that, to the extent provided in regulations, any loss of a separate unit of a domestic corporation will be subject to the DCL rules in the same manner as if it were a wholly owned subsidiary. Treas. Reg. [subsection] 1.1503-2(c)(3) and (4) currently define a separate unit of a domestic corporation as a foreign branch or an interest in a partnership, trust, or hybrid entity. Under paragraph (c)(2), the separate unit is treated as a separate domestic corporation for purposes of applying the DCL rules; any reference to a DRC also incorporates a separate unit. Section 1503(d)(2)(A) defines a DCL as any net operating loss of a domestic corporation that is subject to an income tax of a foreign country on its worldwide income or on a residence basis.

Under Prop. Reg. [section] 1.1503(d)-1(b)(4), a "separate unit" is defined as a foreign branch ("foreign branch separate unit") or an interest in a hybrid entity ("hybrid entity separate unit"). Eliminated from this definition are interests in non-hybrid entity partnerships and non-hybrid entity grantor trusts. Similar to the current rules, however, the proposed regulations provide that a domestic corporation can own a separate unit indirectly through both hybrid and non-hybrid entities.

Because the proposed regulations do not state that, for purposes of applying the DCL rules, a separate unit must be subject to an income tax of a foreign country, the rules imply that a loss arising from a foreign branch separate unit will be treated as a DCL even where the branch is not subject to an income tax of a foreign country. This goes beyond the intent of the statute --to prevent the double dipping of losses. Carried to its extreme, it suggests that even a branch located in a country with a zero-rate corporate tax--such as Bermuda--would still be subject to the DCL rules.

In TEI's view, if the entity in question is not subject to the tax laws of the foreign tax regime (because of a tax treaty or otherwise), then section 1503(d) should not apply because there is no opportunity for double dipping of losses. We recommend that the regulations be amended to expressly provide that a DCL does not arise if the entity in question is not subject to foreign income tax.

D. Combining Separate Units

Section 1.1503-2(c)(3)(ii) of the current regulations provides that if two or more foreign branches located in the same foreign country are owned by a single domestic corporation and the losses of each branch are made available to offset the income of the other branches under the foreign country's tax laws, then the branches are treated as one separate unit. The combination rule does not apply to interests in hybrid entity separate units or to DRCs.

Reflecting the view that the application of the combination rule should not be restricted to foreign branch separate units (2005-25 I.R.B. at 1300), the proposed regulations would combine all separate units directly or indirectly owned by a single domestic corporation. (5) The losses of each separate unit, however, must be made available to offset the income of the other separate units under the tax laws of a single foreign country. If the separate unit is a foreign branch separate unit, it must be located in that foreign country. If the separate unit is a hybrid entity separate unit, the hybrid entity must be subject to tax in the foreign country either on its worldwide income or on a residence basis. The proposed regulations retain the prohibition on the combination of separate units owned by different affiliated corporations. The IRS and Treasury Department request comments on the expansion of the combination rule. 2005-25 I.R.B. at 1301.

In those cases where a DCL may offset income that would constitute a foreign use--or offset income not constituting a foreign use and the foreign country's laws do not provide rules to determine which income is offset--then Prop. Reg. [sub section] 1.1503(d)-1(b)(14)(iii)(b) and 1.1503(d) -5(c), Ex. 12 provide that the loss should be deemed to offset income not constituting a foreign use. Consequently, a DCL domestic use election may be made for the loss.

TEI agrees that this is the correct result, but questions why the taxpayer must track the DCL and file the election. Combining the loss and income would result in no DCL arising in the foreign country in the first place--an administratively easier procedure. Given the broad grant of authority provided in section 1503 of the Code--and recently reaffirmed by the American Jobs Creation Act of 2004 (6)--TEI believes that the government has authority to expand the combination rule.

Thus, the Institute recommends that the combination rule be expanded to include separate units that are owned directly or indirectly by domestic corporations that are members of the same consolidated group, as well as DRCs.

E. Allocating Interest Expense to Foreign Branch Separate Units

Under Prop. Reg. [section] 1.1503(d)-3(b)(2)(ii), for purposes of determining the items of income, gain, deduction (other than interest), and loss that are taken into account in determining the taxable income of a foreign branch separate unit, the principles of sections 864(c)(2) and (c)(4)--relating to the definition of effectively connected income--apply. For purposes of determining the items of interest expense taken into account, however, the principles of Treas. Reg. [section] 1.882-5 apply. As applied in the proposed regulations, (7) a portion of the interest expense of the domestic owner of the foreign branch separate unit is allocated to that branch, thus increasing the amount of the DCL. For hybrid entities, the entity's books and records control; unlike the rule for branches, interest expense of the domestic owner is not attributed to the hybrid owner.

The preamble states that this approach serves as a "reasonable approximation of the items that a foreign jurisdiction may recognize as being taken into account in determining the taxable income or loss of a branch or permanent establishment of a non-resident corporation in such jurisdiction." Comments on this and other administrable approaches are requested. 2005 I.R.B. at 1306.

Allocating a domestic parent's interest expense under Treas. Reg. [section] 1.882-5 seems unnecessarily complicated. Compare the treatment of interest expense of the parent in Prop. Reg. [section] 1.1503(d)-5(c), Examples 28 and 30. If the parent owns a hybrid entity separate unit (e.g., check-the-box, U.S. disregarded branch/foreign corporation), the interest expense at the parent level is not apportioned to that unit (example 28); if the parent owns a "true" foreign branch, however, interest expense is apportioned using 1.882-5 principles (example 30). The interest expense treatment seems odd from a U.S. view because in both cases there is only one legal entity. In one case, however, the home office interest expense is attributable to the branch when the branch is a "true" branch, but not if it is a "hybrid" branch. TEI recommends that, similar to the application of the rules to hybrid branches, only expenses that are respected for U.S. tax purposes and properly reflected on the books and records of the "true" branch should be taken into account.

F. No Possibility of Foreign Use

Prop. Reg. [section] 1.1503(d)-4(c) provides a new exception to the general rule prohibiting the domestic use of a DCL. To qualify under this exception, the consolidated group, unaffiliated DRC, or unaffiliated domestic owner of a separate unit must demonstrate that (i) no foreign use of the DCL occurred in the year in which it was incurred; and (ii) no such use can occur in any other year by any other means. The taxpayer must attach a statement to its return for the taxable year in which the DCL is incurred.

Taken to the extreme, the "no foreign use" provision essentially requires the taxpayer to "prove a negative" by demonstrating no foreign use in respect of an unlimited number of countries. The regulatory text seems at odds with Example 38 of Prop. Reg. [section] 1.1503(d)-5(c)(3), which concludes that "because the sole item constituting the dual consolidated loss cannot be deducted or capitalized for Country X purposes, P can demonstrate that there can be no foreign use of the dual consolidated loss at any time" (emphasis added). TEI recommends that the proposed regulations be clarified to apply the "no foreign use" requirement only to applicable countries. In addition, the required statement should provide that the DCL will not be used in any listed foreign country, or in any unlisted foreign country where such use would constitute a foreign use. This language should vitiate any concerns about double dipping a loss in a country not listed in the statement.

G. Exceptions to No Foreign Use

1. Bilateral Agreements. An exception to the foreign use definition exists under both the current regulations (Treas. Reg. [section] 1.1503-2(g)(1)) and the proposed regulations (Prop. Reg. [section] 1.1503(d)-4(b)), permitting the taxpayer to elect to deduct the loss pursuant to an agreement entered into between the United States and a foreign country that puts into place an elective procedure through which losses offset income in only one country.

According to the preamble, "Congress recognized that mirror legislation in a foreign jurisdiction, in conjunction with a mirror legislation rule such as that contained in the current regulations, could result in the disallowance of a DCL in both the United States and in the foreign jurisdiction. In such cases, Congress intended that Treasury pursue with the appropriate authorities in the foreign jurisdiction a bilateral agreement that would allow the use of the loss to offset income of an affiliate in only one country." 1986 General Explanation at 1066 (emphasis added). To date, no such agreements exist.

In the absence of any bilateral agreements, the government should provide measures permitting flexibility in the domestic use of a DCL caught in the mirror legislation rule (at least until a bilateral agreement can be reached).

2. Mirror Legislation. Treas. Reg. [section] 1.1503-2(g)(2)(i) provides that, if a dual consolidated loss is incurred, a taxpayer may elect to use the loss by entering into an agreement under which the taxpayer certifies that the loss has not been, and will not be, used to offset the income of another person under the laws of a foreign country. Under Treas. Reg. [section] 1.1503-2(c)(15)(iv), to make this election, the DRC or separate entity must not be subject to any "mirror" DCL rule adopted by the foreign country. To date, only four countries have adopted such a rule.

Prop. Reg. [section] 1.1503(d)-1(b)(14)(v) retains the mirror legislation rule with modifications to address its application with respect to mirror legislation adopted subsequent to the issuance of the current regulations and to better take into account the policies underlying the consistency rule. Under the proposed regulations, a foreign use is deemed to occur when the income laws of a foreign country deny any opportunity for foreign use of the DCL because: (i) the loss is incurred by a DRC subject to income taxation by another country on its worldwide income or on a residence basis; (ii) the loss may be available to offset income other than income of the DRC or separate unit under the laws of another country; or (iii) the deductibility of any portion of a loss or deduction taken into account in computing the DCL depends on whether the amount is deductible under the laws of another country. See Prop. Reg. [section] 1.1503(d)-5(c), Exs. 20-23.

Because of the broad definitions set forth in the regulations and the limited scope of the other exceptions, the availability of the domestic use election (formerly the (g)(2) election) is particularly important to taxpayers. Although only the United Kingdom, Germany, New Zealand, and Australia currently have DCL mirror legislation, the potential for similar legislation in other countries is very real. Thus, the reach of this limitation may well expand.

TEI recognizes that the merits of this rule have been extensively debated, but we believe that the mirror legislation rule should be narrowed even further, if not abandoned entirely. Although the existence of mirror legislation is no longer determinative, the proposed rule is unduly harsh in the treatment of "true" foreign branches. In the case of foreign branch separate units, TEI proposes that a safe harbor apply to foreign branches of U.S. companies to permit the loss to be deducted domestically. The intent of the DCL rules is to ensure that losses are not used in situations where the loss may offset income not subject to U.S. taxation. In the case of foreign branch separate units, however, the income or loss inherently belongs to the U.S. company, since a branch is merely an extension of the U.S. company's operations for both legal and U.S. tax purposes. In such cases, the taxpayer should be permitted to make a domestic use election. In the preamble, the IRS and Treasury Department state, "This [mirror legislation] rule is intended to prevent the foreign jurisdiction from enacting legislation that gives taxpayers no choice but to use the dual consolidated loss to offset income in the United States." 2005-25 I.R.B. at 1303. In the case of a U.S. company's foreign branch separate unit, the stated intent of the rule has not been violated because the inclusion of a foreign branch separate unit's income or loss is the result of U.S. legislation, not the foreign jurisdiction's enacting legislation forcing U.S. utilization of foreign branch separate units.

3. Mere Existence of Foreign Legislation. TEI commends the IRS and Treasury Department for clarifying in Prop. Reg. [section] 1.1503(d)-5(c), Example 23 that the mere existence of mirror legislation does not automatically result in a deemed foreign use. The example provides that mirror legislation may or may not apply to a particular DRC or separate unit depending on various factors, including the type of entity or structure generating the loss, the ownership of the operation or entity generating the loss, the manner in which the operation or entity is taxed in another jurisdiction, or the ability of the losses to be deducted in another jurisdiction. TEI believes this is the right interpretation and the clarification will be helpful in determining when the mirror rule actually applies to the DRC or separate unit.

H. Effect of a Dual Consolidated Loss

Under Treas. Reg. [section] 1.1503-2(d)(2), if a DCL cannot be used, then none of the gross tax accounting items that compose the DCL is taken into account. Prop. Reg. [section] 1.1503(d)-3(c) provides that only a pro rata portion of each item of deduction and loss taken into account in computing the DCL is excluded in computing taxable income. The same pro rata method is applied when a DCL is carried forward or back to offset the income of a DRC or separate unit.

The sheer size and number of accounts that constitute a major multinational's income statement make the requirement to track the separate items of deduction and loss extremely burdensome. The IRS and Treasury Department believe that the current method may have a distortive effect on other federal tax calculations (e.g., the section 904 foreign tax credit limitation). 2005-25 I.R.B. at 1308. Because the potential effect may not outweigh the administrative burden of tracking hundreds of items--and the net effect is the same as in the current regulations--TEI recommends that taxpayer be permitted to elect pro rata treatment.

I. Effective Date

Prop. Reg. [section] 1.1503(d)-6 provides that the new rules will apply to DCLs incurred in taxable years beginning after the date that the proposed regulations are published as final regulations in the Federal Register. The IRS and Treasury Department request comments on whether the final regulations should provide an election to permit taxpayers to apply all or a portion of the regulations retroactively. 2005-25 I.R.B. at 1315. Given the unadministrability of the current regulations, TEI urges the government to provide such an election.

The proposed regulations contain several simplifying provisions--such as the reduction of the certification period from 15 to 7 (or, as we recommend, 5) years and the elimination of the need to seek section 9100 relief--that should become effective immediately. It makes no sense to require taxpayers to continue to track DCLs over a 15-year period or for the government to continue to grapple with the costly and lengthy review of requests for section 9100 relief. An election to use all or portions of the proposed regulations should be permitted for all open tax years. To the extent that the issues detailed above (particularly the check-the-box issue) are favorably resolved, more taxpayers would be inclined to elect retroactive application of the regulations, were such an election provided.

Conclusion

Tax Executives Institute appreciates this opportunity to present its views on the proposed dual consolidated loss regulations. If you have any questions, please do not hesitate to call John J. Herson, chair of TEI=s International Tax Committee, at 678.518.3216, or Mary L. Fahey of the Institute's professional staff at 202.638.5601.

(1) Staff of the Joint Committee on Taxation, General Explanation of the Tax Reform Act of 1986, 100th Cong., 1st Sess. 1064 (1987) (hereinafter cited as "1986 General Explanation").

(2) Under the SRLY rules, a dual resident corporation=s loss is retained in the entity and can be used only to offset the future income of such entity.

(3) The triggering events include cases in which (i) an unaffiliated dual resident corporation or domestic owner becomes a member of a consolidated group, and (ii) a DRC or domestic owner that is a member of a consolidated group becomes a member of another consolidated group.

(4) Under the domestic use agreement, the subsequent elector must: (i) agree to assume the same obligations with respect to the DCL as the original elector had pursuant to its domestic use agreement; (ii) agree to treat any potential recapture to the DCL at issue as unrealized built-in gain pursuant to section 384; (iii) agree to be subject to the successor elector rules; and (iv) identify the original elector (and any subsequent electors).

(5) See Prop. Reg. [section] 1.1503(d)-1(b)(4), Ex. 1. "Indirectly" means ownership through a separate unit, an entity classified as a partnership for U.S. tax purposes, or a grantor trust.

(6) See Pub. L. No 108-357, 108th Cong., 2d Sess. [section] 844 (Oct. 22, 2004).

(7) The proposed regulations provide that a taxpayer must use U.S. tax principles to determine both the classification and amounts of the assets and liabilities when the actual worldwide ratio is used. The valuation of assets must be determined under the same methodology the taxpayer uses under Temp. Reg. [section] 1.861-9T(g) for purposes of allocating and apportioning interest expense under section 864(e). For these purposes, the domestic owner of the foreign branch separate unit is treated as a foreign corporation, the foreign branch separate unit is treated as a trade or business within the United States, and assets other than those of the foreign branch separate unit are treated as non-U.S. assets.