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Sec. 6038A 'agent authorizations.' (Brief Article)

At the outset of examinations, IRS agents have been routinely requesting that domestic companies subject to Sec. 6038A reporting rules provide an "agent authorization" from all foreign related parties that have had transactions with the U.S. reporting corporation (RC) during the years under examination.

Regs. Sec. 1.6038A-5(b)(1) (issued in June 1991) permits the IRS to request that an RC be authorized as an agent by a foreign related party with respect to taxable years for which Form 5472, Information Return of a Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business (Under Sections 6038A and 6038C of the Internal Revenue Code), is required to be filed. The agent authorization allows the RC to act as a limited agent for the foreign related party with respect to the issuance of a summons under Secs. 7602, 7603 and 7604.

If a related party does not authorize the RC to act as its agent, a "noncompliance penalty" can be imposed. The Service can make its own determination of deductions or costs to the RC for transactions between the RC and the related party based on any information the IRS has available (Regs. Sec. 1.6038A-7). Separately, if the IRS exercises this authority, any adjustments to tax may also be subject to the new Sec. 482 accuracy related penalty. Sec. 6662(e) imposes a penalty of 20% of the increase in tax resulting when net Sec. 482 transfer price adjustments exceed $10 million. The penalty doubles for Sec. 482 adjustments exceeding $20 million.

To avoid the imposition of penalties, the agent authorization must be provided within 30 days of a request by the IRS. Officers or partners of both the foreign related party and the appointed RC must execute the authorization. The regulations permit a single authorization by the common foreign parent for a group of foreign related parties.

Taxpayers subject to Sec. 6038A would be advised that it is likely such an authorization will be required in connection with an examination. Consequently, they should consider securing the authorization before the IRS asks for it, so as to be able to comply with the 30-day time frame and avoid the imposition of penalties.
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Author:Reavey, Edwin J.
Publication:The Tax Adviser
Article Type:Brief Article
Date:Apr 1, 1992
Words:370
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