Tuesday, July 16, 2019

Advance Payment for Goods--Reg. 1.451-5 Removed by TD 9870


Prior to the TCJA, Reg. §1.451-5 provided special rules for advanced payment for goods and long term contracts. These rules were superseded by revised IRC §451(c). The prior regulations implementing IRC §451 allowed taxpayers generally to defer the recognition of advance payment for goods until the tax year in which the payments were properly accruable under the taxpayer's method of accounting for tax purposes if that method results in the payments being included in gross income no later than when they are includible in gross receipts under the taxpayer's method of accounting for financial reporting purposes.[1]

Revised IRC §451(c) and its election to defer advance payments removed the deferral method provided by Reg. §1.451-5.[2] On July 15, 2019 the Treasury issued T.D. 9870 and removed Reg. §1.451-5 and its cross references. Removing Reg. §1.451-5 ensures that the new deferral rules of IRC §451(c) apply uniformly and consistently to all taxpayers and simplifies tax administration. The rules of IRC §446 regarding changes in methods of accounting apply to taxpayers changing a method of accounting for advance payments from a method described in Reg. §1.451-5 to another method of accounting[3]. The removal of Reg. §1.451-5 is effective for tax years ending on or after Jul. 15, 2019. 


Code §451(c) generally requires an accrual method taxpayer that receives any advance payment described in IRC §451(c)(4) during the tax year to include the advance payment in income in the tax year of receipt or make an election to:

(1) include any portion of the advance payment in income in the tax year of receipt to the extent required under Code Sec. 451(b); and

(2) include the remaining portion of the advance payment in income in the following tax year.  

Under IRC 451(c)(2) a taxpayer may make a deferral election for any portion of the advance payment that is otherwise required to be included in gross income under financial statement rules.  If the election is made the advance payment would be included in gross income in the tax year in which it is received and the remaining portion of the advance payment would be included in gross income in the tax year following the tax year in which it is received.[4] An item of gross income is received by the taxpayer if it is actually or constructively received, or if it is due and payable to the taxpayer.[5]

Treasury and the IRS expect to issue guidance for the treatment of advance payments to implement the TCJA amendments to IRC §451. In the meantime, taxpayers with or without applicable financial statements may continue to rely on Rev. Proc. 2004-34 for the treatment of advance payments. Until new guidance is issued, the IRS will not challenge a taxpayer’s use of Rev Proc 2004-34 to satisfy the requirements of IRC § 451, although it will continue to verify on examination that taxpayers are properly applying Rev Proc 2004-34[6].

How to elect to defer inclusion of advance payments in income. The IRS is instructed to provide details on making the election to defer the inclusion of advance payments in income. This includes the time, form and manner, and the categories of advance payments. The election will be effective for the tax year with respect to which it is first made and for all subsequent tax years, unless the taxpayer obtains the IRS's consent to revoke the election.[7]

Change of accounting method. The computation of taxable income under the deferral election for advance payments is treated as a method of accounting.[8] In the case of any qualified change of accounting method for the taxpayer's first tax year beginning after December 31, 2017, the change is treated as initiated by the taxpayer and made with the IRS's consent. A qualified change of accounting method is any change of accounting method that is required by the new income recognition rules or was prohibited and is now permitted under the new rules.[9] For a qualified change of accounting method involving income from a debt instrument with original issue discount (OID), taxpayers should use a six-year period for taking into account any required IRC §481 adjustments.[10]

What is an Advance Payment?

Rev. Proc. 2004-34 allows a one-year deferral in certain cases of prepaid income. The ruling pertains to prepayment for services to be rendered before the end of the next succeeding year. In particular, Rev. Proc. 2004-34 provides that a payment received by a taxpayer is an advance payment if:
(1)    the inclusion of the payment in gross income for the taxable year of receipt is a permissible method of accounting for federal income tax purposes;
(2)    the payment is recognized by the taxpayer (in whole or in part) in revenues in the taxpayer's applicable financial statement for a subsequent taxable year or, for taxpayers without an applicable financial statement, the payment is earned by the taxpayer (in whole or in part) in a subsequent taxable year; and
(3)    the payment is for
(a) services;

(b) the sale of goods;

(c) the use (including by license or lease) of intellectual property;

(d) the occupancy or use of property, if the occupancy or use is ancillary to the provision of services (for example, advance payments for the use of rooms or other quarters in a hotel, booth space at a trade show, campsite space at a mobile home park, and recreational or banquet facilities, or other uses of property so long as the use is ancillary to the provision of services to the property user);

(e) the sale, lease, or license of computer software;

(f)  guaranty or warranty contracts ancillary to an item or items described in subparagraph (a), (b), (c), (d), or (e), above;

(g) subscriptions (other than subscriptions for which an election under IRC §455 is in effect), whether or not provided in a tangible or intangible format;

(h) memberships in an organization (other than memberships for which an election under IRC §456 is in effect);

(i)              an eligible gift card sale; or

(j)  any combination of items described in subparagraphs (a) through (i) above.

 What Are Not Advance Payments

Under Rev. Proc. 2004-34, the term “advance payment” does not include:

           Insurance premiums, to the extent the recognition of those premiums are governed by Subchapter L;

           Payments with respect to financial instruments (for example, debt instruments, deposits, letters of credit, notional principal contracts, options, forward contracts, futures contracts, foreign currency contracts, credit card agreements, financial derivatives, etc.), including purported prepayments of interest;

           Payments with respect to service warranty contracts for which the taxpayer uses the accounting method provided in Rev. Proc. 97-38;[11]

           Payments with respect to warranty and guaranty contracts under which a third party is the primary obligor;

           Payments subject to IRC §§871(a), 881, 1441, or 1442;

           Payments in property to which IRC §83 applies;

           Rent; and

           Any other payment identified by the IRS for this purpose.[12]

Advance Payment” Defined Under IRC §451(c)(4)

Under IRC §451(c)(4) an “advance payment” is any payment:[13]
  • the full inclusion of which in the taxpayer’s gross income for the tax year of receipt is a permissible method of accounting under IRC §451 (determined without regard to IRC §451[14];
  • any portion of which is included in revenue by the taxpayer in a financial statement described in IRC §451(b)(1)(A)(i) or IRC §451(b)(1)(A)(ii) for a later tax year[15] and
  • which is for goods, services, or other items as the IRS may identify for these purposes[16].
Except as otherwise provided by the IRS, an advance payment does not include:
  • rent[17];
  • insurance premiums governed by subchapter L (IRC §801 through IRC §848)[18];
  • payments as to financial instruments[19];
  • payments as to warranty or guarantee contracts under which a third party is the primary obligor[20];
  • payments subject to:
    • IRC §871(a) (i.e., the tax on income of nonresident alien individuals not connected with a U.S. business),
    • IRC §881 (i.e., the tax on income of foreign corporations not connected with a U.S. business),
    • IRC §1441 (i.e., the tax withheld on certain amounts paid to foreign persons), or
    • IRC §1442 (i.e., the tax withheld from income of foreign corporations)[21].
  • payments in property to which IRC §83 (taxation of property transferred in connection with the performance of services., and
  • any other payment identified by the IRS for purposes of IRC §451(c)(4)(B)[22].
An item of gross income is received by the taxpayer if it is actually or constructively received, or if it is due and payable to the taxpayer[23].
            Until Treasury issues new guidance regarding advance payment for goods, taxpayer can rely on IRC §451(c)(4) for treatment of advance payments.

           


[1] See Reg. §1.451-5(b)(1)(ii)(a).
[2] See H.R. Rep. No. 115-466, at 429 n.880 (2017) (Conf. Rep.).
[4] IRC §451(c)(1)(B), as added by TCJA.
[5] IRC §451(c) (4)(C), as added by TCJA.
[7] IRC §451(c)(2), as added by TCJA.
[8] IRC §451(c)(2)(B), as added by TCJA.
[9] TCJA §13221(d).
[10] TCJA §13221(e)(2).
[11] 1997-2 CB 479.
[12] IRC §451(c)(4)(B), as added by the TCJA.
[16] IRC § 451(c)(4)(A)(iii).
[18] IRC § 451(c)(4)(B)(ii)
[19] IRC § 451(c)(4)(B)(iii)
[20] IRC § 451(c)(4)(B)(iv)
[21] IRC § 451(c)(4)(B)(v)
[22] IRC § 451(c)(4)(B)(vii)
[23] IRC § 451(c)(4)(C).


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