Calendar year 2013 has seen considerable activity across the global legislative and regulatory landscapes. We have seen changes to tax laws in several key territories, and certain legislative trends having a significant impact on income tax accounting. These developments, combined with an environment of economic uncertainty, have added to the challenges in accounting for income taxes.
As in prior years, this publication is focused on the topics we believe will be most relevant to the preparation of 2013 year-end financial statements. Some topics have been discussed in our prior annual publications; however, their continuing importance warranted including them again in 2013. Unless specifically indicated, the discussion and references all pertain to accounting standards and related reporting considerations based upon US generally accepted accounting principles (US GAAP).
The topics covered in this 2013 publication are as follows:
Under US GAAP, Accounting Standards Codification (ASC) 740, Income Taxes, requires companies to measure current and deferred income taxes based upon the tax laws that are enacted as of the balance sheet date of the relevant reporting period. With respect to deferred tax assets and liabilities, that means measurement is based upon the enacted law for the period in which the temporary differences are expected to be realized or settled. Thus, even legislation having an effective date well in the future will typically cause an immediate financial reporting consequence.
Under International Financial Reporting Standards (IFRS), International Accounting Standard (IAS) No. 12, Income Taxes, requires companies to measure current and deferred income taxes based on the tax laws that are enacted or substantively enacted as of the balance sheet date of the relevant reporting period.
At each reporting date, any new information, such as federal, state, and international court decisions or judicial developments, should also be timely considered for effects on existing uncertain tax positions, or positions to be taken in the future. Although, the accounting implications of a court decision may be immediate, the actual impact on tax planning, compliance, or controversy management may not occur until much later. Accordingly, the existence of controls to proactively monitor, evaluate, and timely consider accounting implications of such matters is critical.
The following highlights several key 2013 tax law changes and developments around the world.
US and state tax law developments
Additionally, it should be noted that the existing federal research tax credit, along with other business tax incentives, are set to expire on December 31, 2013.
International tax law developments
Calendar year 2013 has continued to see an increase in the number of tax-related comment letters issued by the staff of the Securities and Exchange Commission (SEC). Of the released to the public between January 1, 2013 and September 30, 2013, approximately 265 of the comments related to tax matters (representing approximately 5 of total comments issued). Of those tax-related comments, 80% related to the following areas: indefinite reinvestment of foreign earnings, presentation of the effective tax rate, valuation allowance assessments, and uncertain tax positions.
Clearly, matters of management judgment continue to be an area of focus for the SEC. There is an emphasis on providing accurate, transparent, and plain language disclosures for significant assertions and estimates. There also has been a significant amount of attention given to accumulated foreign earnings and the presentation of the foreign effective tax rate. The SEC staff has emphasized that a registrant's indefinite reinvestment assertion(s) related to foreign earnings should be consistent with its disclosures within: (1) Management's Discussion and Analysis of Financial
Condition and Results of Operations (MD&A), and (2) financial statement footnotes.
Further, recent SEC comment letters have reminded companies of the requirement to disclose the amount of the outside basis difference and the unrecorded tax liability if practicable to calculate. The SEC staff has been requesting an explanation of why the calculation of the unrecorded liability is not practicable.
We expect these topics to be continued areas of focus by regulators, investors, and commentators in 2014.
Much of the focus of standard setting in 2013 has been on the Financial Accounting Standards Board's (FASB) joint project with the International Accounting Standards Board (IASB) related to the standards on revenue and leasing. As these projects are nearing completion, the FASB has continued to issue other accounting updates to clarify or amend existing provisions. The following Accounting Standards Updates (ASU) should be considered in preparation of the year- end financial statements or in planning for 2014.
In February 2013, the FASB issued new guidance on the reporting of amounts reclassified from accumulated other comprehensive income (AOCI) that requires presentation of additional information. This is the first year-end in which the standard is effective for calendar-year-end public companies. Nonpublic companies have one additional year to adopt, with the standard being effective for periods beginning after December 15, 2013.
Under the new standard, a reporting entity is required to present the changes in the components of AOCI for the current period. Entities are required to present separately the amount of the change that is due to reclassifications and the amount that is due to current period other comprehensive income (OCI) activity. These changes can be shown before or net of tax, and displayed on the face of the financial statements or in the footnotes.
A reporting entity is also required to present, parenthetically on the face of the financial statements or in the notes, significant amounts, and their source, that are reclassified from each component of AOCI, as well as the income statement line items affected by the reclassification. However, an entity would not need to show the income statement line item affected by certain components that are not required to be reclassified in their entirety to net income, such as amounts amortized into net periodic pension cost.
Under the standard, an entity is also required to disclose the tax effect of the reclassified items by component. We believe it is appropriate to use the tax rate that is applicable to the items in the relevant jurisdiction(s) when the reclassified items are included in earnings. This is consistent with the intraperiod allocation model in ASC 740. This tax allocation approach could result in using different tax rates than the rates used when the items went into AOCI, if changes in tax rate or laws were enacted after the period when the item initially went into AOCI and/or due to changes in valuation allowance.
US GAAP previously did not include explicit guidance on the financial statement presentation of an unrecognized tax benefit when a net operating loss (NOL) carryforward, a similar tax loss, or a tax credit carryforward exists. An unrecognized tax benefit (UTB) results when the amount of benefit recognized in the balance sheet differs from the amount taken or expected to be taken in the tax return.
On a jurisdictional basis, ASU No.
2013-11 generally requires a UTB to be presented in the financial statements as a reduction to a deferred tax asset for an NOL carryforward. This would be the case except when an NOL carryforward is not available under the tax laws of the applicable jurisdiction to settle any additional income taxes resulting from the disallowance of a tax position. In such instances, the UTB should be recorded as a liability and cannot be combined with the deferred tax asset. The assessment as to whether a deferred tax asset is available is based on the UTB and deferred tax asset that exist at the reporting date and should be made assuming disallowance of the tax position at the reporting date.
ASU No. 2013-11 is expected to reduce diversity in practice by providing specific guidance on the presentation of unrecognized tax benefits. Note, this guidance is a departure from the original guidance provided by the FASB staff, and currently reflected in PwC's Guide to Accounting for Income Taxes.
The amendments in this ASU are effective for fiscal years, and interim periods within those years, beginning after December 15, 2013. For nonpublic entities, the amendments are effective for fiscal years, and interim periods within those years, beginning after December 15, 2014. Early adoption is permitted. The amendments should be applied prospectively to all unrecognized tax benefits that exist at the effective date. Retrospective application is permitted.
On November 25, 2013, the FASB endorsed the first two accounting alternatives (the "final standards") previously approved by the Private Company Council (PCC). The final standards will provide private companies with: (1) an alternative accounting model for goodwill that allows amortization of goodwill on a straight line basis over a maximum of
10 years, and (2) a simplified hedge accounting approach for qualifying interest rate swaps. The final standards will be effective for fiscal years beginning after December 15,
2014, and annual periods thereafter. Early adoption will be permitted. The impacts of the changes to a company's effective tax rate and calculation of deferred items should be considered once the standards are finalized.
Under the proposed accounting alternative related to goodwill, goodwill existing as of the balance sheet date will now be classified as a finite lived asset and any related deferred tax liability would potentially support the recoverability of deferred
tax assets. Further, in a non-taxable acquisition (i.e., one in which the existing tax basis of the acquired assets and liabilities carries over to the buyer), a company would see its effective tax rate increase from the non-deductibility of goodwill amortization.
In December 2013, the Financial Accounting Standards Board ratified the final consensus that was reached by the Emerging Issues Task Force (EITF) in its November 2013 meeting to revise the accounting for investments in Low-Income Housing Tax Credit (LIHTC) programs. The final consensus, which will be issued as an ASU, modifies the conditions that must be met in order to present investment performance (principally, tax credits and other tax benefits net of amortization expense) as a component of income taxes. For investments that qualify for "net" presentation, the ASU will also introduce a new "proportional amortization method" in lieu of the effective yield method to amortize the investment basis. The use of the proportional amortization method will be an accounting policy election to be made once and thereafter applied to all eligible investments in LIHTC programs. The new guidance will be effective for fiscal years, and interim periods within those years, beginning after December 15, 2014. Early adoption will be permitted.
The assessment of an uncertain tax position (UTP) is a continuous process that does not end with the initial determination of a position's sustainability. As of each balance sheet date, unresolved positions must be reassessed based upon new information. The accounting standard requires that changes in the expected outcome of a UTP be based on new information, and not on a mere re-evaluation of existing information.
New information - New information can relate to developments in case law, changes in tax law, new regulations issued by taxing authorities, interactions with the taxing authorities, or other developments. Such developments could potentially change the estimate of the amount that is expected to eventually be sustained or cause a position to meet or fail to meet the recognition threshold.
In assessing UTPs, an organization is required to recognize the benefit of a tax position in the first interim period that one of the following conditions is met:
Effective settlement - For a tax position to be considered effectively settled, all three of the following conditions must be met:
In jurisdictions like the United States, where the taxing authority can re-examine tax positions that gave rise to an NOL or other carryforward in the year those carryforwards are used, the judgment as to whether effective settlement has occurred becomes more complex. If the requirements of effective settlement are met, the resulting tax benefit is required to be reported. In other words, the application of effective settlement criterion is not elective.
Disclosures - Required disclosures related to UTPs are often extensive and can be highly sensitive. For more information, please refer to the recently released PwC Tax Accounting Services publication - Income tax disclosure.
The evaluation of the need for, and amount of, a valuation allowance for deferred tax assets (DTAs) is an area that has always presented a challenge for financial statement preparers. The assessment requires significant judgment and a thorough analysis of all positive and negative evidence available to determine whether all or a portion of the DTAs is likely to be realized. In this analysis, the weight given to positive or negative evidence is directly related to the extent to which it can be objectively verified. Accordingly, recent observed results are given more weight than future projections which are often inherently subjective.
As companies perform their assessments, the following reminders may be helpful:
Jurisdictional assessment - The valuation allowance assessment generally needs to be performed on a jurisdiction-by-jurisdiction basis.
Further, where the local tax law does not allow for consolidation, the valuation allowance assessment may be at the separate legal-entity level as opposed to the jurisdictional level.
All available evidence - The accounting standard requires that all available evidence be considered in determining whether a valuation allowance is needed, including events occurring subsequent to the balance sheet date but before the financial statements are released. However, a valuation allowance assessment should not anticipate transactions over which the company does not have control. For example, initial public offerings, business combinations, and financing transactions are generally not considered as part of a valuation allowance assessment until the transactions are completed.
Triggering events or changes in circumstances - In assessing potential changes to a valuation allowance (i.e., establishing or releasing), it is important to consider what triggering events have occurred since the prior assessment and whether a change in conclusion is warranted.
An entity should consider the appropriate timing to release the valuation allowance when circumstances change. Cumulative income (e.g. on a three year basis) is not a prerequisite to releasing a valuation allowance. Rather, an entity must consider the totality of all positive and negative evidence when considering whether to release a valuation allowance.
Character of DTAs - The realization of DTAs is dependent upon the existence of sufficient taxable income of the appropriate source and must create incremental cash tax savings. For example, if tax losses are carried back to prior years, freeing up tax credits (which were originally used to reduce the tax payable) rather than resulting in a refund, a valuation allowance would still be necessary if there are no sources of income that allow for the realization of the freed-up tax credits. In other words, utilization does not always mean realization. The substitution of one DTA for a future DTA, without a source of income for the future DTA's realization, does not represent realization.
Outside basis differences - The reversal of an outside basis difference in a foreign subsidiary can be viewed only as a source of taxable income to support recovery of DTAs, when the foreign earnings have not been asserted as indefinitely reinvested.
Taxable temporary differences on equity method investments can be considered as a source of taxable income provided there is an appropriate expectation as to the timing and character of reversal in relation to DTAs.
Deferred tax liabilities - Taxable temporary differences associated with indefinite-lived assets (e.g., land, goodwill, indefinite-lived intangibles) generally cannot be used as a source of taxable income. Thus, a valuation allowance on DTAs may be necessary even when an enterprise is in an overall net deferred tax liability (DTL) position. When the existence of future taxable income is in doubt and the enterprise is in a net DTL position, the timing and nature of reversal of the DTLs must be analyzed.
In jurisdictions with unlimited carryforward periods for tax attributes (e.g., NOLs, AMT credit carryforwards, and other non-expiring loss or credit carryforwards), the related DTAs may be supported by the indefinite-lived DTLs.
Disclosures - Due to the significant judgments involved in determining whether a DTA is realizable, transparent disclosures are often critical. For more information, please refer to the recently released PwC Tax Accounting Services publication - Income tax disclosure.
Tax Accounting Services Thought Leadership, Deferred Taxes on Foreign Earnings - A Road Map
The assertion of indefinite reinvestment of foreign subsidiary earnings continues to be one of the more complex and judgmental areas of accounting for income taxes. The continued growth in unremitted foreign earnings; scrutiny from stakeholders, such as the OECD, around base erosion and profit shifting; and the ongoing uncertainty within the global economy has made the application of the indefinite reinvestment assertion a matter of heightened concern. Companies should consider the following when evaluating their indefinite reinvestment assertion:
The global economic conditions of the past few years have resulted in greater currency volatility, as well as increased efforts by companies to manage multiple currency risks. Accordingly, it is more important than ever for multinational companies to understand and continually assess the income tax accounting for currency movements and transactions. The following are some key aspects of this complex area to keep in mind:
Accounting for business combinations is an area of challenge for many organizations due to its technical complexity, the involvement of cross- functional teams, as well as constraints on the availability of timely information.
Business combinations often involve a considerable amount of business, legal, and tax planning. There is no direct guidance that addresses whether the tax effects of elections or post-acquisition transactions should be included in acquisition accounting. Practice in this area is evolving.
We believe the following factors should generally be considered in the assessment of whether the tax effects of such events should be included in acquisition accounting:
The impact on the acquiring company's deferred tax assets and liabilities, including changes in a valuation allowance assessment caused by an acquisition, is recorded in the acquiring company's financial statements outside of acquisition accounting (i.e., not as a component of acquisition accounting).
DTLs recorded in acquisition accounting may be a source of taxable income to support recognition of DTAs of the acquired company as well as the acquirer. Where some but not all of the combined DTAs are supported by DTLs recorded in acquisition accounting, the acquirer will need to apply an accounting policy to determine which assets are being recognized.
A non-controlling interest (NCI) is the portion of equity (net assets) in a subsidiary not attributable, directly or indirectly, to the parent.
For a business combination achieved in stages, the acquirer should re-measure its previously held equity interest in the target as of the acquisition date and recognize the resulting holding gain or loss (including the associated impact of deferred taxes) in earnings. If, upon obtaining control of a domestic subsidiary, the parent has the intent and ability under the tax law to recover its investment in a tax-free manner, then DTL related to the outside basis difference on the previously held investment is reversed through the acquirer's income statement outside of acquisition accounting. If the subsidiary is foreign, then generally the DTL (or a portion of that DTL) related to the outside basis difference on the previously held investment must be retained under a special accounting rule.
Allocating income tax expense (or benefit) to the various components of the financial statements (continuing operations, discontinued operations, extraordinary items, cumulative effects of accounting changes, OCI, and items charged or credited directly to shareholders' equity) is a complex area of tax accounting.
Key points to consider include:
The basic model - The basic approach for intraperiod allocation can be summarized in the following steps:
Exceptions to the model - An exception to the use of the with-and- without approach occurs when there is a pre-tax loss from continuing operations and pre-tax income from other categories of income. Application of the exception makes it appropriate to consider, for example, a gain in OCI in the current year for purposes of allocating a tax benefit to a current-year loss from continuing operations. This would be the case even if the loss from continuing operations would have attracted no tax benefit under the with- and-without approach.
Changes in valuation allowance - Under the intraperiod tax allocation rules, the allocation depends on:
The rules can be summarized as follows:
Exceptions apply when the loss relates to: (1) increases or decreases in capital; (2) certain deductions for employee stock options; (3) tax-deductible dividends on unallocated shares held by an ESOP; and (4) deductible temporary differences and carryfowards existing at the date of quasi reorganization. The initial recognition of tax benefits for these items should be allocated directly to the related components of shareholders' equity, regardless of the source of income that allows for their realization.
Tax effects lodged in OCI - Under the incremental approach, subsequent adjustments to deferred taxes originally charged or credited to OCI are not necessarily reflected in OCI. As a result, the tax effect lodged in OCI will not necessarily equal the net deferred tax asset or liability that is recognized in the balance sheet for the temporary differences related to the pre-tax items recorded in OCI. ASC 740 is silent as to the disposition of a disproportionate tax effect lodged in OCI. General practice eliminates the OCI balance when the circumstances upon which it is premised ceases to exist.
Accounting for windfall benefits - Under the general rule for ordering tax benefits, items included in continuing operations generally are considered to enter into tax computations before items included in other components. The guidance in ASC 718, Stock Compensation, provides that the tax benefit and related credit to additional paid-in capital (APIC) for a windfall tax benefit should not be recorded until the deduction reduces income taxes payable. If a company has windfall tax benefits and NOLs or other carryforwards from earlier years, there are two acceptable methods to determine the order in which tax attributes should be considered: (1) the with-and-without approach or (2) tax law ordering approach.
Under the with-and-without approach, windfall tax benefits would be used last, whereas under tax law ordering approach, the provisions in the applicable tax law would determine the sequence in which windfall tax benefits are used.
An entity should treat its decision to adopt either approach as an accounting policy decision and follow the approach consistently. A policy decision to account for utilization of windfall tax benefits based on tax law ordering will often be less complex to administer as compared with the with-and-without approach. In addition, following the tax law ordering approach should reduce the need to track differences between the treatment of carryforwards for book purposes as compared with the treatment of the carryforwards for tax return purposes.
To incentivize foreign direct investment and economic development, governments have provided relief from income taxation in many creative ways. In addition to offering the traditional full tax holiday for a specified time period, governments now also provide reduced tax rates, exemptions, and special deductions. Determining the accounting treatment of each incentive can be a challenge. In some cases, the incentives may represent government grants or subsidies that fall outside of income tax accounting. The following provides a comparison of the potentially relevant accounting models and highlights some of the factors to consider in determining which model applies.
US GAAP does not provide a definition of 'tax holiday.' However, despite this lack of definition, there is guidance on the proper tax accounting for tax holidays under US GAAP. Specifically, the FASB decided to prohibit recognition of a deferred tax asset for any tax holiday, primarily due to the practical problems associated with measuring the deferred tax asset associated with future benefits expected from tax holidays.
Differences often exist between the book and tax basis of assets and liabilities on balance sheet dates within the holiday period. If these differences are scheduled to reverse during the tax holiday, deferred taxes should be measured for the differences based on the conditions of the tax holiday (e.g., full or partial exemption). If the differences are scheduled to reverse after the tax holiday, deferred taxes should be provided at the enacted rate that is expected to be in effect after the tax holiday expires.
Another form of government relief from taxation is the granting of additional tax basis, allowances, or exemption amounts (e.g., a tax credit carryforward). Tax credits granted at the outset of a relief or incentive program typically result from a company committing to expenditures or other transactions that will be incurred. As such, a tax credit may be a result of some incentivized action that will take place in the operations of the company. The amount of the initial credit, once calculated, results in an attribute that may be realized as a benefit in the current period through a reduction to the current-period taxes due, if sufficient taxable income exists. If sufficient taxable income does not exist in the current period, the future benefit of the attribute may be reflected as a deferred tax asset, if carryforward is allowed under the local law. In other words, if there is an established and quantifiable future benefit, it may be appropriate to recognize a deferred tax asset.
The future benefit would be subject to the traditional analysis for realization (based upon evidence of sufficient future taxable income). A similar framework would apply to a tax attribute in the form of additional tax basis.
In general, the special deductions identified within ASC 740 have tax law requirements or limitations that are based upon future performance of specific activities. This future- performance requirement, or other limitation, generally differentiates the deduction from being equivalent to a tax-rate reduction.
The tax benefit of a special deduction should be recognized no earlier than the year in which the deduction can be taken on the tax return, thereby yielding a permanent benefit in the period of recognition. As such, the benefits of a special deduction should not be anticipated for purposes of offsetting a deferred tax liability for taxable temporary differences at the end of the current year, or as a rate reduction that is applied in measuring deferred taxes.
While some benefits provided in the income tax laws may be claimed on an income tax return, a number of factors may require that the benefit not be reflected within income taxes, but instead be accounted for in pre-tax income. Some additional factors may need to be considered when making that determination. But generally, a benefit that's refundable, even when exceeding tax otherwise due, would not be accounted for within the income tax accounts. The benefit would follow a pre-tax income recognition and measurement model.
Given these distinctions and the limited accounting guidance, a variety of factors should be analyzed to conclude on the appropriate accounting treatment of tax law incentives. Answers to the following questions can help the analysis:
Be mindful that no one factor is necessarily determinative, and an analysis of all facts and circumstances should be performed with respect to each particular law or program. If the benefits offered under a particular government incentive regime vary and are subject to negotiation and agreement with the local authorities, it is possible that different accounting models may apply to different companies under the same jurisdiction's incentive regime.
In light of the continued focus on disclosures by investors and regulators, companies may wish to enhance their procedures around the identification and development of income-tax-related disclosures. Additionally, a fresh look may be warranted to ensure disclosures are concise and use plain language.
The recent PwC Tax Accounting Services publication - Income tax disclosure discusses the required disclosures for the financial statements, MD&A, as well as other filings and documents. Companies should reference this document as part of their year-end financial statement preparation process. Other key reminders to consider as part of the year-end process include:
PwC is committed to helping companies navigate tax accounting issues. Our global network of specialized tax accounting resources, as listed below, can help you tackle a wide range of needs. With that in mind, please visit www.pwc.com/us/tas to view our comprehensive library of tax accounting thought leadership, webcasts, and tools addressing the business and technical issues related to tax accounting.
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For more information, please reach out to your local PwC partner or the following PwC partners:
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Leader |
Phone |
|
Global Tax Accounting Services Leader |
Ken Kuykendall |
+1 (312) 298-2546 |
|
Atlanta |
Ben Stanga |
+1 (615) 503-2577 |
|
Northern California - San Jose |
Ty Kanaaneh |
+1 (408) 817-5729 |
|
Northern California - San Francisco |
Adan Martinez |
+1 (415) 498-6154 |
|
Southern California |
Darren Poplock |
+1 (213) 356-6158 |
|
Carolinas |
Tamara Williams |
+1 (704) 344-4146 |
|
Chicago |
Rick Levin |
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|
Florida |
Rafael Garcia |
+1 (305) 375-6237 |
|
Houston |
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|
Lake Erie |
Mike Tomera |
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|
Michigan |
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Missouri |
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Northeast |
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|
New York Metro (Private Company Services) |
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Pacific Northwest |
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Rockies |
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North Texas |
Steve Schoonmaker |
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|
Washington Metro |
Jamie Grow |
+1 (703) 918-3458 |
Edward Abahoonie
Tax Accounting Services Technical Leader
Phone: +1 (973) 236-4448
Email: edward.abahoonie@us.pwc.com
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Tax Partner
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