October 15, 2021
IRS again delays applicability dates for foreign currency guidance
On October 12, 2021, the IRS announced (Notice 2021-59) that it intended to again defer, by an additional year, the applicability date of final regulations under IRC Section 987 and certain related final regulations. The affected regulations will be amended to apply to tax years beginning after December 7, 2022 (e.g., to 2023 for calendar-year taxpayers).
2016 final, temporary and proposed regulations
On December 8, 2016, Treasury and the IRS published final (T.D. 9794), temporary (T.D. 9795) and proposed regulations (REG-128276-12) under IRC Section 987. The 2016 Final Regulations provide guidance to corporations and individuals on determining taxable income or loss of a qualified business unit (QBU) whose functional currency differs from its owner (an IRC Section 987 QBU). They also provide guidance on the timing, amount, character and source of any IRC Section 987 gain or loss arising from such a QBU. The temporary regulations, some of which were finalized in T.D. 9857, provided rules for deferring IRC Section 987 gain or loss in connection with certain IRC Section 987 QBU terminations and transactions involving partnerships, as well as other related elections and special rules. The proposed regulations cross-referenced the temporary regulations. See Tax Alert 2016-2117.
The 2016 Final Regulations' prescribed approach for computing taxable income or loss and IRC Section 987 gain or loss of an IRC Section 987 QBU differs entirely from that used by most taxpayers for more than 30 years. The regulations also impose substantial recordkeeping and compliance requirements.
2019 final regulations
In T.D. 9857, effective May 13, 2019, Treasury and the IRS finalized certain provisions of the 2016 temporary regulations. Specifically, Treas. Reg. Sections 1.987-2T and -4T (on combinations and separations of IRC Section 987 QBUs) and Treas. Reg. Section 1.987-12T (addressing recognition and deferral of IRC Section 987 gain and loss upon certain IRC Section 987 QBU terminations and certain other transactions involving partnerships) were finalized with certain clarifications. In addition, Treasury and the IRS withdrew Treas. Reg. Section 1.987-7T (regarding the allocation of assets and liabilities of certain partnerships for purposes of IRC Section 987). See Tax Alert 2019-0932.
Previous deferrals of applicability date
The 2016 Final Regulations originally applied to tax years beginning on or after one year after the first day of the first tax year beginning after December 7, 2016 (e.g., to 2018 for calendar-year taxpayers). The applicability date of the 2016 Final Regulations, however, has been deferred every year since they were released (see Tax Alerts 2017-1621, 2018-1241, 2019-2179, 2020-2291).
Notice 2021-59 announces intended amendments to further delay the applicability date of the 2016 Final Regulations and certain related provisions of the 2019 Final Regulations by one additional year. Consequently, these regulations will now apply to tax years beginning after December 7, 2022 (e.g., to 2023 for calendar-year taxpayers). The applicability date of Treas. Reg. Section 1.987-12 was not changed, so the deferral-event and outbound-loss-event rules of Treas. Reg. Section 1.987-12 generally apply to events occurring on or after January 6, 2017.
Taxpayers may rely on the provisions of Notice 2021-59 before amendments to the final regulations are issued. Taxpayers may also choose to apply the 2016 Final Regulations, the related temporary regulations (until they were revoked on May 13, 2019, or expired on December 6,2019, as applicable), and the related 2019 Final Regulations (beginning on May 13, 2019) to tax years beginning after December 7, 2016, and before December 8, 2022, provided the taxpayer and its related parties consistently apply those regulations to such tax years.
Although the temporary regulations have expired, the Notice indicates that taxpayers can rely on certain provisions of the proposed regulations, which cross-reference the temporary regulations, provided the taxpayer and its related parties consistently follow the proposed regulations in their entirety and apply the 2016 Final Regulations and the related 2019 Final Regulations for the same tax year. A taxpayer may rely on the annual deemed termination election provisions of the proposed regulations, provided that the taxpayer and its related parties consistently follow those proposed regulations in their entirety. Additionally, taxpayers may rely on Treas. Reg. Sections 1.987-7 (Section 987 aggregate partnerships) and 1.988-2(b)(16) (deferral of loss on certain related-party debt instruments) of the proposed regulations, provided that the taxpayer and its related parties consistently follow each section of those proposed regulations.
The deferral was expected and is helpful because it allows taxpayers time to create and implement the complex systems and processes necessary to transition to the 2016 Final Regulations. Notice 2021-59 does not mention that the IRS is considering changes to these regulations to simplify the rules (although it has been mentioned in prior deferral notices).
Until the final regulations are effective, taxpayers must compute IRC Section 987 gain or loss under a reasonable method and must also apply the deferral and outbound loss event rules of Treas. Reg. Section 1.987-12. Practitioners generally view a reasonable method as including (1) the methodology provided in the1991 Proposed Regulations, (2) the "Earnings Only" methodology, or (3) early adoption of the 2016 Final Regulations. Such IRC Section 987 gain or loss can affect taxable income or global intangible low taxed income under IRC Section 951A, each of which in turn may affect many other current income tax provisions. Taxpayers should also consider the effect of recent proposed international tax provisions.