VIA EMAIL
The Honorable Steven Mnuchin
Secretary of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
RE: Executive Order 13789
Dear Secretary Mnuchin:
I. Introduction
The U.S. Chamber of Commerce, the world's largest business federation representing the interests of more than three million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations, and dedicated to promoting, protecting, and defending America's free enterprise system, appreciates the opportunity to provide feedback on Executive Order 13789 issued on April 21, 2017.
As part of your efforts pursuant to Executive Order 13789, to “review all significant tax regulations issued by the Department of the Treasury on or after January 1, 2016,” that “(i) impose an undue financial burden on United States taxpayers; (ii) add undue complexity to the Federal tax laws; or (iii) exceed the statutory authority of the Internal Revenue Service (IRS), the U.S. Chamber of Commerce urges the Treasury Department to recognize the burdens created by and take action on the regulations identified below.
These comments are the product of conversations with a very wide array of impacted U.S. Chamber members, and highlight their most pertinent issues. These comments may be considered as listing the most problematic regulations, but not all of the regulations concerning U.S. Chamber members. As such, these comments are neither exhaustive nor categorical, but instead emphasize some of the most pressing concerns as raised by U.S. Chamber members.
This comment letter provides recommendations on the following regulatory pronouncements:
- §§ 103 (REG-129067-15)
- § 355 (REG-134016-15)
- § 367(d) (T.D. 9803)
- § 385 (T.D. 9790)
- §§ 707 and 752 (T.D.s 9787 and 9788)
- § 871(m) (T.D. 9815)
- § 901(m) (T.D. 9800)
- § 956 (T.D. 9792)
- § 987 (T.D. 9795)
- § 2704(b) (REG-163113-02)
- § 6035 (REG-127923-15)
- § 7602 (T.D. 9778)
II. § 103 (REG-129067-15)
A. Description
In early 2016, Treasury and the IRS issued promulgated rules proposing a three-part test for determining whether an issuer is a political subdivision that may issue tax-exempt bonds. Taxpayers have expressed concerns that the proposed rules impose overly broad restrictions that will cause severe and unintended barriers to governmental efforts to finance infrastructure and other improvements for the public benefit.
B. Recommendation
The Chamber recommends withdrawal of these rules.
III. § 355 (REG-134016-15)
A. Description
Issued in July 2016 in response to certain highly-structured transactions, these proposed rules introduce several new tests to measure whether a transaction qualifies as a tax-free spin-off under § 355. These rules broadly apply to spin-offs and rigidly rely on bright-line tests and difficult asset valuation calculations without allowing for other relevant considerations that justify qualification of a spin-off under § 355.
B. Recommendation
The Chamber recommends withdrawal of these rules.
IV. §§ 367(d), 482 (T.D. 9803, T.D. 9738)
A. Description
Issued in December 2016, these final rules retroactively eliminate the longstanding foreign goodwill exception under § 367. Consequently, recognition of gain may be required on the transfer of foreign goodwill and going concern value by a U.S. person to a foreign corporation in certain outbound transactions under §§ 351 and 361. These rules are highly controversial and should be reviewed, as they are a significant departure from the Code and from Congressional intent.
In conjunction with review of these § 367 rules, the Chamber also believes there is a need to review the temporary and final transfer pricing regulations under § 482 issued in 2015. While these regulations were issued prior to 2016, they were issued in conjunction with the proposed § 367 regulations and interrelate substantively with those regulations. The § 482 regulations impose purported “clarifications” with immediate effect of controversial aggregation and “all value” requirements in pricing intracompany transactions, even though the IRS has consistently lost these positions in the courts. Thus, we believe these regulations should be subject to similar review.
B. Recommendation
The Chamber recommends withdrawal of both the §§ 367(d) and 482 rules.
V. § 385 (T.D. 9790)
A. Description
In 2016, the Treasury Department finalized regulations interpreting a long dormant section of the Internal Revenue Code, § 385, addressing the recharacterization of debt as equity in some circumstances, purportedly to minimize erosion of the federal income tax base. While significant improvements were made in the final rules, these rules still disrupt certain normal business practices unrelated to any impression of tax avoidance or tax mismeasurement. Further, the reservation by the Treasury and the IRS of the right to finalize rules later in certain areas creates significant uncertainty, which adversely impacts business planning.
B. Recommendation
The Chamber strongly recommends complete withdrawal of these rules. At a minimum, the Chamber urges Treasury and the IRS to address the following concerns:
- Documentation requirements for intercompany transactions:
The final rules require businesses to apply the same level of documentation and due diligence upon the granting and maintaining of intercompany indebtedness as would be required from a third party lender. This does not take into account the specific relationship between a company and its affiliates and places an undue financial and compliance burden on the taxpayer. Any documentation requirement should be proportional to the circumstances and the respective risks and rewards of the specific loan relationship and recognize that a lower level of debt risk monitoring is required when entities are part of the same corporate group. The documentation rule is extended to cover ordinary course transactions that would not generally be considered by businesses to be debt instruments, including:
- Cash pooling and similar arrangements;
- Trade payables; and
- Working capital debt financing.
The extension of documentation requirements to cover these ordinary course transactions results in excessive complexity and imposes an undue financial and administrative burden upon taxpayers and therefore the documentation rule should be amended to remove these ordinary course transactions from its scope. Additionally, the effective date of the documentation rules should be delayed immediately so taxpayers can stop wasting resources complying with misguided paperwork burdens.
- Uncertainty stemming from reserved regulations:
The Treasury and IRS reserved the right to finalize rules both relating to bifurcation as well as foreign issuers. The Chamber
urges that the bifurcation rule be dropped entirely. Likewise, Treasury should confirm that the scope of § 385 will not be extended to debts issued by foreign entities, as this would result in excessive complexity and will impose an undue financial and administrative burden upon taxpayers.
VI. §§ 707 and 752 (T.D.s 9787 and 9788)
A. Description
In October 2016, Treasury and the IRS released guidance for partnerships, addressing disguised sales and allocation of liabilities and introducing new restrictions on leveraged partnership transactions. T.D. 9787 purports to curb disguised sales of property under § 707 and tighten provisions relating to a partnership's allocations of excess nonrecourse liabilities to partners for disguised-sale purposes under § 752. T.D. 9788 promulgated temporary and final regulations that treat all partnership liabilities as nonrecourse liabilities solely for disguised sale purposes and are allocated based on the share of the partner's profits. These rules no longer allow a partner full basis on guaranteed debt for purposes of determining if there has been a taxable event when debt is transferred to the partnership. This is the case even when that guarantee meets the requirements of the new final rules concerning debt guarantees.
B. Recommendation
The Chamber recommends withdrawal of these rules. At a minimum, the effective date of such rules must be suspended.
VII. § 871(m) (T.D. 9815)
A. Description
Section 871(m) was enacted in 2010 in response to concerns over transactions where foreign investors avoided U.S. withholding taxes on dividends by using swap transactions referencing U.S. equities in lieu of direct ownership. The provision granted regulatory authority to the Treasury to develop rules to distinguish certain derivative transactions subject to withholding from those that do not have the potential for tax-avoidance. Those regulations are currently relatively narrow in scope and generally only apply to so-called “delta one” transactions; however, effective January 1, 2018, regulations promulgated and released on the last day of the prior Administration would impose withholding tax on a broader universe of transactions that have generally been viewed as non-abusive and do not appear to have been the subject of the 2010 legislation. These prospective dividend equivalent rules are costly for the financial industry and make common non-delta-one derivative transactions referencing U.S.-issued stocks and securities much less attractive to international investors.
B. Recommendation
The Chamber believes the rules set to become effective January 1, 2018, go beyond what is necessary to address abuse, leave critical definitional and operational issues unresolved, and impose onerous compliance burdens for the financial services industry. As such, the Chamber recommends withdrawal of these rules back to the in-scope definition adopted by the September 2015 final regulations (i.e., crossing-in/crossing-out).
VIII. § 901(m) (T.D. 9800)
A. Description
Section 901(m) limits the benefit of foreign tax credits in certain transactions resulting in basis differences between the U.S. and foreign tax. The temporary and proposed regulations issued in December 2016 provide detailed guidance around the calculation of the disallowed foreign tax credits under § 901(m). The proposed § 901(m) regulations add three new covered
asset acquisitions (CAAs) and a number of accounting rules, and, as drafted, expand the scope of § 901(m). While some of those rules are helpful, like the election to use foreign tax basis as initial basis, in many instances, the rules are harmful, e.g., forcing taxpayers to carry over tax basis when such basis has not yet disallowed foreign tax credits (which directly contradicts the unambiguous statutory formulas for disallowance). This approach has extended the reach of the regulations and, consequently, the regulations are very complex and impose significant burden on taxpayers.
B. Recommendation
The Chamber recommends revising the rules. The proposed regulations are too complex and should be made simpler and more taxpayer friendly by eliminating the three new CAAs and harmful accounting rules. Additionally, a related-party exception should be added to § 901(m) to eliminate a double-taxation burden that now happens when U.S. companies have their foreign tax credits eliminated in internal restructurings even though they have paid for a basis step up with taxable income—yet another instance of the current U.S. tax system handicapping domestic competitiveness. The related-party exception should stop foreign tax credit disallowances as of the date of the proposed regulations, December 7, 2016, including for transactions that have already occurred and for which U.S. companies are being double taxed.
IX. § 956 (T.D. 9792)
A. Description
Issued in November 2016, these final rules impose a complex series of requirements on foreign partnerships with U.S. related parties as partners that treat a loan by a CFC to a related foreign partnership as a U.S. asset in applying the subpart F rules even though the loan proceeds may not be repatriated into the United States. The Treasury and IRS made little change from the proposed rules, despite significant feedback and concerns expressed by taxpayers. Specifically, taxpayers expressed concern over the regulation’s extremely broad approach as well as potential retroactive effective date.
B. Recommendation
The Chamber recommends withdrawal of these rules.
X. § 987 (T.D. 9795)
A. Description
Issued in December 2016, these regulations address how to deal with the computation of foreign exchange gains and losses of remittances from branches and other flow-through entities that use a functional currency other than the currency of their owner(s). These rules are a significant departure from what taxpayers generally do to calculate gains and losses under §987
and implement onerous compliance burdens. As commentators have noted, they are extraordinarily complex and can have a significant economic impact on the economy as a whole. In addition, the transition rules included in the regulations can result in a disallowance of built-in economic foreign exchange losses for certain taxpayers.
B. Recommendation
The Chamber recommends withdrawal of these rules.
XI. § 2704(b) (REG-163113-02)
A. Description
In August 2016, Treasury and the IRS issued proposed rules instituting one of the most sweeping changes to estate tax regulations in the last 25 years. These proposed rules in effect deny the recognition of minority valuation discounts in the context of closely-held, family-owned businesses. The Internal Revenue Code imposes gift and estate tax on the transfer of value; these regulations deny that the transfer of a minority interest is less valuable pro rata than a 100% ownership. These discounts are important because they promote the continuation of family businesses by lowering the transfer tax cost of transferring interests during life to the children, which makes the children more inclined to stay with the business, as compared to the parents holding on to assets during their lives and giving the closely-held business interests only at death. Due to the lack of earlier involvement with the business while the experienced parents were alive, the transfer after death often results in the business closing. The discounts promote the flow of wealth to younger generations, which is good for the economy and the continuation of family businesses. Unfortunately, these rules simply complicate how families can pass businesses on to the next generation.
B. Recommendation
The Chamber recommends withdrawal of these rules.
XII. § 6035 (REG-127923-15)
A. Description
In 2016, the Treasury and IRS issued proposed rules relating to consistent basis reporting between estates and the person acquiring property from the decedent. The IRS proposed requiring basis reporting when a beneficiary makes a nontaxable transfer of property, where that property had been subject to basis information reporting. The result of such rules is onerous and
impracticable compliance burdens on taxpayers. For instance, under the proposed subsequent transfer rule, such transfer may not transpire for decades after the original transaction, and, as such, these rules present impracticable and onerous recordkeeping requirements. Likewise, the 30-day deadline is inconsistent with when transfers are generally reported and, as a result, is likely to trigger unfair late filing penalties.
B. Recommendation
The Chamber recommends withdrawal of these rules.
XIII. § 7602 (T.D. 9778)
A. Description
In July 2016, Treasury and the IRS finalized regulations providing the IRS with authority to retain outside counsel to participate and take testimony in an audit which is an inherently governmental function. The final regulations provide that persons described in § 6103(n) and Regs. § 301.6103(n)-1(a) with whom the IRS or Chief Counsel contracts for services, such as outside economists, engineers, consultants, or attorneys, may receive books, papers, records, or other data summoned by the IRS and, in the presence and under the guidance of an IRS officer or employee, participate fully in the interview of a person who the IRS has summoned as a witness to provide testimony under oath. The final regulations remove temporary regulations (T.D. 9669) regarding participation in an interview of a summoned person described in § 6103(n), printed in the Federal Register on June 18, 2014.
It is common for the IRS to retain outside experts such as economists, engineers, and appraisers, to assist the IRS in ascertaining the correctness of a tax return. However, taxpayers are concerned these regulations improperly delegate the authority to perform audit examination functions outside of the IRS by allowing the retention of external private sector lawyers for the purpose of participating fully in an examination. We agree with concerns raised by Senate Finance Committee Chairman Hatch in his May 13, 2014 letter to IRS Commissioner Koskinen that “[t]he IRS’s hiring of a private contractor to conduct an examination of a taxpayer raises concerns because the action: 1) appears to violate federal law and the express will of the Congress; 2) removes taxpayer protections by allowing the performance of inherently governmental functions by private contractors; and 3) calls into question the IRS’s use of its limited resources.”
B. Recommendation
The Chamber recommends withdrawal of these rules.
XIV. Conclusion
The Chamber appreciates the opportunity to provide feedback on rules meriting attention under Executive Order 13789. In sum, the Chamber strongly urges Treasury to take action on the above rules which impose undue financial and compliance burdens or which clearly exceed statutory authority. We believe the above changes are necessary to ease the regulatory drag on our economy and to ensure both that U.S. companies can compete globally and that foreign capital is welcomed within our borders. The Chamber looks forward to working with you on these issues.
Sincerely,
Caroline L. Harris
Cc: Thomas West, Acting Assistant Secretary, Tax Policy, U.S. Department of the Treasury
