Federal Tax Day – Current, I.5, IRS Issues Final Repair Regulations on
Deduction and Capitalization of Expenditures Related to Tangible Property
(T.D. 9636), (Sep. 16, 2013)
Tax News, Journals and Newsletters > Federal Tax > Federal Tax Day – Current > INTERNAL REVENUE SERVICE > I.5, IRS Issues Final Repair Regulations on Deduction and Capitalization of Expenditures Related to Tangible Property (T.D. 9636), (Sept. 16, 2013)
The IRS has released ﬁnal regulations and removed temporary and proposed regulations governing the application of Code Secs. 162(a) and 263(a) to amounts paid to acquire, produce, or improve tangible property. The new regulations clarify existing regulations under those sections. In addition, ﬁnal regulations are issued under Code Sec. 167 regarding accounting for and retirement of depreciable property, as well as under Code Sec. 168 regarding accounting for property under the Modiﬁed Accelerated Cost Recovery System (MACRS) other than general asset accounts. The ﬁnal regulations will aﬀect all taxpayers that acquire, produce, or improve tangible property.
Pursuant to Code Sec. 263(a), amounts paid to acquire, produce or improve tangible property must be capitalized and not deducted. Under Code Sec. 162(a), a taxpayer may deduct all ordinary and necessary expenses paid or incurred during the tax year in carrying on any trade or business, including the costs of certain supplies, repairs, and maintenance.
The ﬁnal regulations provide a framework for distinguishing capital expenditures from deductible business expenses. Existing standards for determining whether an expense may be deducted as a repair or must be capitalized, which require a facts and circumstances test, have been very controversial due to the subjective nature of the standards. The new regulations take into account various incarnations of temporary and proposed regulations (most recently issued in 2011 (T.D. 9564)), comments received on those regulations, and judicial decisions in an attempt to simplify the rules while achieving results consistent with the case law.
The ﬁnal regulations follow the format of the 2011 temporary regulations, addressing the following topics:
Reg. §1.162-3 – Rules for materials and supplies;
Reg. §1.162-4 – Repairs and maintenance;
Reg. §1.263(a)-1 – General rules for capital expenditures;
Reg. §1.263(a)-2 – Rules for amounts paid for the acquisition or production of tangible property; and
Reg. §1.263(a)-3 – Rules for amounts paid for the improvement of tangible property.
The ﬁnal regulations reﬁne and simplify rules contained in the temporary regulations and create a number of new
Comment: The ﬁnal regulations adopt a revised and simpliﬁed de minimis safe harbor under Reg. §1.263(a)-1(f) and extend the safe harbor for routine maintenance under Reg. §1.263(a)-3(i) to buildings. Further, the ﬁnal regulations add a safe harbor for small taxpayers to the rules governing improvements to tangible property under Reg. §1.263(a)-3. Several of the criteria for deﬁning betterments and restorations to tangible property have also
The new ﬁnal regu
lations also ﬁnalize temporary regulations under Code Sec. 167 regarding accounting for and retirement of depreciable property and Code Sec. 168 regarding accounting for MACRS property, other than general asset accounts. Other MACRS regulations relating primarily to dispositions of property are not ﬁnalized at this time but are issued concurrently with these regulations as proposed regulations and are discussed separately (TAXDAY, 2013/09/16, I.6).©2013 Wolters Kluwer. All rights reserved.
2 Materials and Supplies – Reg. §1.162-3
Earlier versions of Reg. §1.162-3 provided, in part, that a taxpayer carrying materials and supplies on hand should include in expenses the charges for materials and supplies only in the amount that was actually consumed and used in operation during the tax year for which the return was made. The earlier regulations did not deﬁne “materials and supplies,” but whether property constituted a material or supply (rather than inventory or depreciable property) was addressed in judicial and administrative rulings. Later temporary and proposed regulations provided deﬁnitions.
The new ﬁnal regulations reﬁne the earlier deﬁnitions. For example, the ﬁnal regulations expand the deﬁnition of materials and supplies to include property that has an acquisition or production cost of $200 or less (increased from $100 or less), clarify application of the optional method of accounting for rotable and temporary spare parts, and simplify the application of the de minimis safe harbor of Reg. §1.263(a)-1(f) to materials and supplies. The ﬁnal regulations also deﬁne standby emergency spare parts and limit the application of the election to capitalize materials and supplies to only rotable, temporary, and standby emergency spare parts. A taxpayer that uses the optional method for rotable and temporary spare parts for tax purposes must use the optional method for all of the pools of rotable and temporary spare parts used in the same trade or business for which the optional method is used for the taxpayer’s books and records.
Regulations clarify that a taxpayer may revoke the election to capitalize and depreciate certain material and supplies by requesting a letter ruling to obtain IRS consent to revocation. Also, the de minimis rule applicable to
materials and supplies and the general de minimis rule, discussed below, are now more clearly coordinated.
Finally, property identiﬁed in previous guidance as materials and supplies remains so classiﬁed under the new
Repairs – Reg. §1.162-4
Amounts paid for repairs and maintenance to tangible property are deductible if the amounts paid are not
required to be capitalized under Reg. §1.263(a)-3. This rule has been retained unchanged from prior versions of
De Minimis Safe Harbor – Reg. §§1.162-3(f) and 1.263(a)-1(f)
Taxpayers are generally required to capitalize amounts paid to acquire or produce a unit of real or personal property. Under prior temporary regulations, a de minimis exception allowed a taxpayer to deduct certain amounts paid for tangible property if the taxpayer had an applicable ﬁnancial statement, had written accounting procedures for expensing amounts paid for such property under speciﬁed dollar amounts, and treated those amounts as expenses on its applicable ﬁnancial statement. The ceiling applicable to this exception was the greater of (1) 0.1 percent of the taxpayer’s gross receipts for the tax year as determined for tax purposes; or (2) 2 percent of the taxpayer’s total depreciation and amortization expense for the tax year as determined on the taxpayer’s applicable ﬁnancial statement.
Under the ﬁnal regulations, the ceiling in the de minimis rule has been eliminated and replaced with a new safe harbor determined at the invoice or item level and based on the policies used by the taxpayer for its ﬁnancial accounting books and records. A taxpayer with an applicable ﬁnancial statement may rely on the de minimis safe harbor under Reg. §1.263(a)-1(f) only if the amount paid for property does not exceed $5,000 per invoice, or per item as substantiated by the invoice. This amount is subject to change by the IRS in future guidance. The de minimis safe harbor has been expanded to include amounts paid for property having an economic useful life of less than 12 months, provided the amount per invoice or item does not exceed $5,000.
A de minimis rule is also included for taxpayers without an applicable ﬁnancial statement, provided that accounting procedures are in place to deduct amounts paid for property costing less than a speciﬁed amount, or amounts paid for property with an economic useful life of 12 months or less. The speciﬁed amount for taxpayers©2013 Wolters Kluwer. All rights reserved.
3 in this category is $500. If the cost exceeds $500 per invoice (or item), then no portion of the cost of the property will fall within the safe harbor.
Regardless of whether or not the taxpayer has an applicable ﬁnancial statement, the de minimis safe harbor does not preclude a taxpayer from reaching an agreement with the IRS that the IRS examining agents will not review certain items. Examining agents do not need to revise their materiality thresholds in accordance with the safe harbor limitations.
The de minimis safe harbor is elected annually by including a statement on the taxpayer’s tax return for the year elected. An election to use the safe harbor may not be made through the ﬁling of an application for change in accounting method.
Temporary regulations required that, to use the de minimis safe harbor, a taxpayer had to have written accounting procedures in place at the beginning of the tax year treating the amounts paid for property costing less than a certain dollar amount as an expense for ﬁnancial accounting purposes. It was suggested that transition guidance be issued for taxpayers that did not have written accounting procedures in place at the beginning of 2012. The ﬁnal regulations do not adopt these suggestions for transition relief, since they are not applicable until tax years beginning on or after January 1, 2014. Taxpayers without written accounting procedures that choose to elect the de minimis safe harbor for their 2014 tax years should have suﬃcient time to consider and draft appropriate procedures prior to the applicability date of the ﬁnal regulations.
In the case of aﬃliated corporations ﬁling a consolidated return, the regulations provide that, if a taxpayer’s ﬁnancial results are reported on the applicable ﬁnancial statement for a group of entities, then the group’s applicable ﬁnancial statement may be treated as the applicable ﬁnancial statement of the taxpayer. A taxpayer electing to apply the de minimis safe harbor is not required to include in the cost of the tangible property the additional costs of acquiring or producing the property if these costs are not included on the same invoice as the tangible property. However, a taxpayer electing to apply the de minimis safe harbor must include in the cost of the property all additional costs (for example, delivery fees, installation services, or similar costs) of acquiring or producing the property if these costs are included on the same invoice with the tangible property.
If an invoice includes amounts paid for multiple tangible properties and the invoice includes additional invoice costs related to the multiple properties, then the taxpayer must allocate the additional invoice costs to each property using a reasonable method (e.g., speciﬁc identiﬁcation, pro rata allocation, or weighted average method based on each property’s relative cost). Additional costs consist of the transaction costs of acquiring or producing the property and the costs for work performed prior to the date that the unit of tangible property was placed in service.
The de minimis safe harbor must be applied to all eligible materials and supplies (other than rotable, temporary, and standby emergency spare parts subject to the election to capitalize or rotable and temporary spare parts subject to the optional method of accounting for such parts) if the taxpayer elects the de minimis safe harbor under Reg. §1.263(a)-1(f). Taxpayers that do not elect the de minimis safe harbor must treat amounts paid for materials and supplies in accordance with Reg. §1.162-3.
Amounts paid for tangible property eligible for the de minimis safe harbor may be subject to capitalization under Code Sec. 263A if these amounts constitute the direct or allocable indirect costs of other property produced by the taxpayer or property acquired for resale. Amounts Paid to Acquire or Produce Tangible Property – Reg. §1.263(a)-2 Temporary regulations provided rules for applying Code Sec. 263(a) to amounts paid to acquire or produce a unit of real or personal property. These rules are generally retained in the ﬁnal regulations, including general requirements to capitalize amounts paid to acquire or produce a unit of real or personal property, requirements to capitalize amounts paid to defend or perfect title to real or personal property, and rules for determining the extent to which taxpayers must capitalize transaction costs related to the acquisition of property. The de minimis safe harbor has been moved to Reg. §1.263(a)-1(f) to reﬂect its broader application to amounts paid for tangible©2013 Wolters Kluwer. All rights reserved.
4 property, including amounts paid for improvements and materials and supplies, except as otherwise provided
under Code Sec. 263A.
Amounts Paid to Improve Property – Reg. §1.263(a)-3
The ﬁnal regulations generally retain earlier rules for determining whether an amount improves, betters, or restores property, including the unit of property. A building is generally deﬁned as a unit of property. These regulations continue to apply the improvement rules separately to the building structure and each building system. The ﬁnal regulations do not provide quantitative bright lines for determining the materiality of an addition to a unit of property or an increase in capacity, productivity, eﬃciency, strength, quality, or output of a unit of property, despite comments requesting such bright lines. The regulations rely on qualitative factors to provide fair and equitable treatment for all taxpayers in determining whether a particular cost constitutes a betterment. Temporary regulations required consideration of all facts and circumstances in determining if a betterment of property existed, including treatment of the expenditures on a taxpayer’s applicable ﬁnancial statement. The ﬁnal regulations remove the taxpayer’s treatment of the expenditure on its ﬁnancial statement as a factor to be considered in performing a betterment analysis. In addition, the determination of whether amounts are paid for a betterment of the taxpayer’s property no longer includes consideration of the taxpayer’s facts and circumstances. With respect to retail store refresh or remodel projects, commenters requested quantitative bright lines and additional details in the given examples. Although bright lines were not adopted, additional details were added to examples, illustrating distinctions between betterments and maintenance activities when a taxpayer undertakes multiple simultaneous activities on a building.
The ﬁnal regulations also provide rules for determining the unit of property for leased property and for leasehold improvements, as well as special rules for determining improvement costs (including costs incurred during an improvement and removal costs).
Final regulations include a safe harbor for small taxpayers to assist them in applying the general rules for improvements to buildings. A safe harbor election is provided for building property held by taxpayers with gross receipts of $10 million or less (a “qualifying small taxpayer”). Such a taxpayer can elect to not apply the improvement rules to an eligible building property if the total amount paid during the tax year for repairs, maintenance, improvements, and similar activities performed on the eligible building does not exceed the lesser of $10,000 or 2 percent of the unadjusted basis of the building. Eligible building property includes a building unit of property that is owned or leased by the qualifying taxpayer, provided the unadjusted basis of the building unit of property is $1,000,000 or less.
The safe harbor for building property held by small taxpayers may be elected annually on a building-by-building basis by including a statement on the taxpayer’s timely ﬁled tax return, including extensions, for the year the costs are incurred for the building. Amounts paid by the taxpayer to which the taxpayer properly applies and elects the safe harbor are not treated as improvements to the building under Reg. §1.263(a)-3 and may be deducted under Reg. §§1.162-1 or 1.212-1, as applicable, in the tax year that the amounts are paid or incurred, provided the amounts otherwise qualify for deduction under those sections. A taxpayer may not revoke an election to apply the safe harbor for small taxpayers.
A safe harbor for routine maintenance activities for property other than a building or its structural components, applicable under temporary regulations, has been expanded to apply to routine maintenance for buildings. The inclusion of a routine maintenance safe harbor for buildings is expected to alleviate some of the diﬃculties that could arise in applying the improvement standards for certain restorations to building structures and building
The ﬁnal regulations use 10 years as the period of time in which a taxpayer must reasonably expect to perform the relevant activities more than once. However, amounts incurred for activities falling outside the routine maintenance safe harbor are not necessarily expenditures required to be capitalized under Reg. §1.263(a)-3.©2013 Wolters Kluwer. All rights reserved.
5 Amounts incurred for activities that do not meet the routine maintenance safe harbor are subject to analysis
under the general rules for improvements. The ﬁnal regulations retain earlier rules regarding restoration, but with revisions to the major component rule (clariﬁcation of some deﬁnitions) and the casualty loss rule. Temporary regulations provided that an amount is paid to restore a unit of property if it is for the repair of damage to the unit of property for which the taxpayer has properly taken a basis adjustment as a result of a casualty loss under Code Sec. 165, or relating to a casualty event described in that section. Capitalization of restoration costs is required under the casualty loss rule, even when the amounts paid for the repair exceed the adjusted basis remaining in the property and regardless of whether the amounts may otherwise qualify as repair costs. The ﬁnal regulations revise the casualty loss rule to permit a deduction for amounts spent in excess of the adjusted basis of the property damaged in a casualty event. A taxpayer is still required to capitalize amounts paid to restore damage to property for which the taxpayer has properly recorded a basis adjustment, but the costs required to be capitalized under the casualty loss rule are limited to the excess of: (1) the taxpayer’s basis adjustments resulting from the casualty event, over (2) the amount paid for restoration of damage to the unit of property that also constitutes a restoration under the other criteria of Reg. §1.263(a)-3(k)(1) (excluding the casualty loss rule). Casualty-related expenditures in excess of this limitation are not treated as restoration costs under Reg. §1.263(a)-3(k)(1)(iii) and may be properly deducted if they otherwise constitute ordinary and necessary business expenses (for example, repair and maintenance expenses) under Code Sec. 162.
Election to Capitalize Repair and Maintenance Costs
The ﬁnal regulations include a new provision that allows a taxpayer to elect to treat amounts paid during the tax
year for repair and maintenance to tangible property as amounts paid to improve that property and as an asset
subject to the allowance for depreciation, as long as the taxpayer incurs the amounts in carrying on a trade or
business and the taxpayer treats the amounts as capital expenditures on its books and records used for regularly
computing income. A taxpayer that elects this treatment must apply the election to all amounts paid for repair and maintenance to tangible property that it treats as capital expenditures on its books and records in that tax year. A taxpayer making the election must begin to depreciate the cost of such improvements when the improvements are placed in service by the taxpayer under the applicable provisions of the code and regulations. The election is made by attaching a statement to the taxpayer’s timely ﬁled original tax return (including extensions) for the tax year in which the improvement is placed in service. Once made, the election may not be revoked.
Change in Method of Accounting
Separate procedures will be provided under which taxpayers may obtain automatic consent for a tax year beginning on or after January 1, 2012, to change to a method of accounting provided in the ﬁnal regulations. Although a taxpayer seeking a change in method of accounting to comply with these regulations generally must take into account a full adjustment under Code Sec. 481(a), it is expected that, for the speciﬁc situation where a taxpayer seeks to change to a method of accounting that is applicable only to amounts paid or incurred in tax years beginning on or after January 1, 2014, a limited Code Sec. 481(a) adjustment will apply, taking into account only amounts paid or incurred in tax years beginning on or after January 1, 2014, or at a taxpayer’s option, amounts paid or incurred in tax years beginning on or after January 1, 2012.
The ﬁnal regulations are eﬀective September 19, 2013, and apply to tax years beginning on or after January 1, 2014. Some provisions only apply to amounts paid or incurred in tax years beginning on or after January 1, 2013. Taxpayers may apply the new regulations to tax years beginning on or after January 1, 2012. T.D. 9636, 2013FED ¶47,036©2013 Wolters Kluwer. All rights reserved.
Code Sec. 162
CCH Reference – 2013FED ¶8600
CCH Reference – 2013FED ¶8620
CCH Reference – 2013FED ¶8753
Code Sec. 165
CCH Reference – 2013FED ¶9901
Code Sec. 167
CCH Reference – 2013FED ¶11,010
CCH Reference – 2013FED ¶11,018
CCH Reference – 2013FED ¶11,020
Code Sec. 168
CCH Reference – 2013FED ¶11,276P
Code Sec. 263
CCH Reference – 2013FED ¶13,700C
CCH Reference – 2013FED ¶13,701
CCH Reference – 2013FED ¶13,703
CCH Reference – 2013FED ¶13,704
CCH Reference – 2013FED ¶13,704K
Code Sec. 263A
CCH Reference – 2013FED ¶13,809
CCH Reference – 2013FED ¶13,811
Code Sec. 1016
CCH Reference – 2013FED ¶29,414
Tax Research Consultant
CCH Reference – TRC BUSEXP: 9,080
IRS Fresh Start Program Helps Taxpayers Who Owe the IRS
IRS Tax Tip 2013-57, April 17, 2013
The IRS Fresh Start program makes it easier for taxpayers to pay back taxes and avoid
tax liens. Even small business taxpayers may benefit from Fresh Start. Here are three
important features of the Fresh Start program:
• Tax Liens. The Fresh Start program increased the amount that taxpayers can owe
before the IRS generally will file a Notice of Federal Tax Lien. That amount is now
$10,000. However, in some cases, the IRS may still file a lien notice on amounts less
When a taxpayer meets certain requirements and pays off their tax debt, the IRS may
now withdraw a filed Notice of Federal Tax Lien. Taxpayers must request this in writing
using Form 12277, Application for Withdrawal.
Some taxpayers may qualify to have their lien notice withdrawn if they are paying their
tax debt through a Direct Debit installment agreement. Taxpayers also need to request
this in writing by using Form 12277.
If a taxpayer defaults on the Direct Debit Installment Agreement, the IRS may file a new
Notice of Federal Tax Lien and resume collection actions.
• Installment Agreements. The Fresh Start program expanded access to streamlined
installment agreements. Now, individual taxpayers who owe up to $50,000 can pay
through monthly direct debit payments for up to 72 months (six years). While the
IRS generally will not need a financial statement, they may need some financial
information from the taxpayer. The easiest way to apply for a payment plan is to use
the Online Payment Agreement tool at IRS.gov. If you don’t have Web access you
may file Form 9465, Installment Agreement, to apply.
Taxpayers in need of installment agreements for tax debts more than $50,000 or longer
than six years still need to provide the IRS with a financial statement. In these cases,
the IRS may ask for one of two forms: either Collection Information Statement, Form
433-A or Form 433-F.
• Offers in Compromise. An Offer in Compromise is an agreement that allows
taxpayers to settle their tax debt for less than the full amount. Fresh Start expanded
and streamlined the OIC program. The IRS now has more flexibility when analyzing a
taxpayer’s ability to pay. This makes the offer program available to a larger group of
Generally, the IRS will accept an offer if it represents the most the agency can expect to
collect within a reasonable period of time. The IRS will not accept an offer if it believes
that the taxpayer can pay the amount owed in full as a lump sum or through a payment
agreement. The IRS looks at several factors, including the taxpayer’s income and
assets, to make a decision regarding the taxpayer’s ability to pay. Use the Offer in
Compromise Pre-Qualifier tool on IRS.gov to see if you may be eligible for an OIC.
Additional IRS Resources:
Online Payment Agreement tool
Fresh Start Notice of Federal Tax Liens
Form 12277, Application for Withdrawal
Understanding a Federal Tax Lien
Offer in Compromise Pre-Qualifier tool
Offer in Compromise
Electronic Payment Options Home Page
Payments (payment options)
Valencia CPA Company Offers Life Insurance
Buying life insurance inValencia is one of the most important things you will do to help protect the security of your family and loved ones. Before purchasing a life insurance policy, it is crucially important that you educate yourself and conduct the research necessary to determine what type of policy is best for you and your family.
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As was stated in the beginning of this article, life insurance is necessary, in order to protect your family, in case something ever happens to you. When tragedy strikes, you want to make sure your family is cared for. Apply the advice contained in this article to help you purchase a life insurance plan that is perfect for you and your family.
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Precisely what is a corporation?
Stock shares can be found in distinctive lessons of inventory. Chosen stockholders are promised a specific volume of hard cash dividends every year. Typical stockholders have the most danger. If a company results in economic issues, it is required to pay back its liabilities first. If any money is left about, then that cash goes to begin with to your favored stockholders. If anything is left about after that, then that cash is dispersed for the frequent stockholders.
What exactly are partnerships and restricted liability firms?
Some organization owners opt to produce partnerships or restricted liability providers instead of a corporation. A partnership could also be named a company, and refers to an association of the team of individuals working with each other inside a company or qualified follow.
Though businesses have rigid policies about how they can be structured, partnerships and limited liability businesses let the division of management authority, revenue sharing and possession rights among the proprietors for being pretty flexible.
Partnerships drop into two types. Standard companions are subject matter to unlimited liability. If a company are unable to shell out its debts, its creditors can demand payment from the basic partners’ private assets. Common partners possess the authority and accountability to manage the business. They’re analogous on the president together with other officers of the company.
Limited partners escape the unrestricted liability which the basic partners have. They’re not liable as individuals, for that liabilities from the partnership. These are generally junior partners that have possession rights to the profits from the business enterprise, but they don’t commonly participate in the high-level management of the company. A partnership needs to have a number of common partners.
A constrained liability business (LLC) has started to become much more prevalent amid smaller sized firms. An LLC is just like a company regarding limited liability and it really is like a partnership with regards to the flexibility of dividing earnings one of the owners. Its benefit around other kinds of possession is its overall flexibility in how financial gain and management authority are established. This can possess a draw back. The owners need to enter into extremely specific agreements about how the revenue and administration responsibilities are divided. It may possibly get pretty intricate and usually demands the solutions of a law firm to draw up the agreement.
A partnership or LLC arrangement specifies how earnings might be divided among the proprietors. Even though stockholders of the corporation receive a share of profit that is immediately related to what number of shares they individual, a partnership or LLC does not have to divide earnings in accordance to exactly how much every single lover invested. Invested funds is simply on the factors which can be applied in allocating and distributing income.
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