Tax-planning strategies must meet several criteria to be used to support realization of deferred tax assets, as described in
ASC 740-10-30-19.
Excerpt from ASC 740-10-30-19
In some circumstances, there are actions (including elections for tax purposes) that:
a. Are prudent and feasible
b. An entity ordinarily might not take, but would take to prevent an operating loss or tax credit carryforward from expiring unused
c. Would result in realization of deferred tax assets.
This Subtopic refers to those actions as tax-planning strategies. An entity shall consider tax-planning strategies in determining the amount of valuation allowance required. Significant expenses to implement a tax-planning strategy or any significant losses that would be incurred if that strategy were implemented (net of any recognizable tax benefits associated with those expenses or losses) shall be included in the valuation allowance. See paragraphs 740-10-55-39 through 55-48 for additional guidance. Implementation of the tax-planning strategy shall be primarily within the control of management but need not be within the unilateral control of management.
Although the
ASC 740 criteria is explicit, it is not necessarily easy to interpret. The following bullets provide additional context for how we believe companies should interpret the tax-planning strategy criteria.
- Prudent and feasible — Management must have the ability to implement the strategy and expect to do so unless the need is eliminated in future years. If management would not implement a strategy because it would not be in the entity’s best interests, it would not be prudent. If management does not have the ability to carry out the strategy, it would not be feasible. The strategy need not be in the unilateral control of management, but it must be primarily within its control. For example, restrictions in loan agreements would have to be considered in determining whether a strategy is feasible.
- Ordinarily might not take, but would take to prevent an operating loss or tax credit carryforward from expiring unused — Strategies that the entity takes ordinarily for business reasons are generally not tax-planning strategies.
ASC 740-10-30-20 makes it clear that the unit of account, recognition, and measurement principles for unrecognized tax benefits should be applied when determining whether a tax-planning strategy provides a source of future taxable income for the realization of deferred tax assets. In effect, a proposed tax-planning strategy would need to meet the
ASC 740 more-likely-than-not recognition threshold from a tax law perspective. Assuming recognition is met (and the tax-planning strategy was determined to be prudent and feasible), the amount of taxable income that would be provided by the tax-planning strategy should be measured as the largest amount of benefit that is more-likely-than-not to be realized.
Some tax-planning strategies (e.g., triggering a LIFO reserve or shifting a tax-exempt portfolio to taxable) create additional taxable income. Other tax-planning strategies may affect only the timing of specific taxable income or deductions.
In some cases, tax-planning strategies may only extend the period of future years to which the entity may look for additional taxable income to be generated other than from reversals. As mentioned in
ASC 740-10-55-37, a reduction in taxable income or taxes payable as a result of NOLs and credit carryforwards does not solely constitute recognition of a tax benefit. To the extent that a tax-planning strategy results in the utilization of existing NOLs and credits merely through replacement with a temporary difference that will result in future deductible amounts, absent future taxable income to realize the deferred tax asset, the tax-planning strategy may not result in realization of the deferred tax asset. Realization would be achieved only if the entity was able to support the existence of a future source of taxable income.
A tax-planning strategy that triggers a gain on the appreciation of certain assets for tax purposes (including LIFO inventories) may require special consideration.
ASC 740-10-30-22 cites appreciation in net assets as an example of positive evidence. For the strategy to create additional taxable income rather than merely affect the timing of taxable income and deductions, the appreciation would have to be unrecognized and unrealized. Recognized, but unrealized, appreciation (e.g., certain securities carried at market value under
ASC 320,
Investments—Debt Securities and
ASC 321,
Investments—Equity Securities, but not subject to the mark-to-market tax rules) would have generated a taxable temporary difference that would already have been considered as a source of income.
An available tax-planning strategy to create additional taxable income may not ensure realization of deferred tax assets if future operating losses are expected to offset the taxable income from the strategy. Example TX 5-7 demonstrates this concept.
EXAMPLE TX 5-7
Potential tax-planning strategy that only reduces future loss
XYZ Company has experienced a history of operating losses over the past five years that total $20 million and has a net deferred tax asset of $5 million (tax rate of 25%) arising primarily from NOL carryforwards from such losses. A full valuation allowance has historically been recorded against the net deferred tax asset.
Based on the introduction of a new product line, Company XYZ is currently projecting that, for the next three years, it will experience losses of approximately $5 million in the aggregate before it “turns the corner” and becomes profitable. Due to appreciation in the real estate market, Company XYZ’s investment in a shopping mall property is now valued at approximately $500,000 more than the carrying amount in its financial statements. The entity proposes to reverse $125,000 ($500,000 × 25%) of its valuation allowance based on a tax-planning strategy to sell the investment in the shopping mall. The shopping mall is not a “core” asset of the entity, and management asserts that it would sell the shopping mall property, if necessary, before it would permit the NOL carryforward to expire unused.
Should the valuation allowance be reduced for the tax-planning strategy?
Analysis
No. Even if XYZ Company executed the tax-planning strategy in a year during which it is projecting losses, the gain realized on the sale of the appreciated asset would not shift the Company into a profitable position. In the above case, based on (1) the entity’s history of losses, (2) an unproven new product line, and (3) the fact that the entity does not anticipate being profitable for at least three years, little weight can be assigned to the projection of profitability. Accordingly, there is no incremental tax benefit (at least for the foreseeable future), as the potential gain on the sale of the shopping mall property would only reduce what otherwise would be a larger operating loss. Thus, it would not be appropriate to reduce the valuation allowance.
The consideration of future losses in Example TX 5-7 differs from the principle established in
ASC 740-10-25-38, which notes that “the anticipation of the tax consequences of future tax losses is prohibited.”
ASC 740-10-25-38 considers that a company anticipating losses for the foreseeable future might conclude that there is no need to record deferred tax liabilities because they might not represent an incremental increase to the company’s tax liability. However, the Board rejected this notion. In this context, future losses are considered as part of determining whether the implementation of the proposed tax-planning strategy will indeed provide a source of income for the realization of deferred tax assets. Future losses should also be considered when determining whether a tax-planning action will provide a source of income, as discussed further in Example TX 5-8.
It is important to differentiate tax-planning actions from tax-planning strategies. Tax-planning actions are typically contemplated in the ordinary course of business while tax-planning strategies are those that a company ordinarily might not take, but would take to prevent an operating loss or tax credit carryforward from expiring unused. Tax-planning actions are only reflected in estimates of future taxable income when scheduling or projecting income if the entity is currently in a position to employ those actions and has already done so or will do so in the near-term. Therefore, the timing of the recognition of the effects of tax-planning actions is different than for tax-planning strategies, which are anticipated based on management’s intent and ability, if necessary.
Example TX 5-8 illustrates considerations when distinguishing between a tax-planning strategy and a tax-planning action.
EXAMPLE TX 5-8
Tax-planning action vs. tax-planning strategy
Company X acquires certain entities in Europe that have net deferred tax assets. In completing an evaluation of the recoverability of the net deferred tax assets and assessing the need for a valuation allowance, Company X considers the following:
- Company X is contemplating a new business model to create an operating platform that is substantially different from the current platform. The new platform would involve the creation of a new European headquarters to centralize many of the risks and functions currently borne by various entities. Aside from the European headquarters operation, the other European territories would be established as contract manufacturers. As a result of the new platform, income would be shifted to certain entities, which would allow Company X to take advantage of more favorable tax rates and may in some cases shift income to certain jurisdictions that currently generate net operating losses and require full valuation allowances.
- Company X has noted that combining two of its entities in Jurisdiction A for tax purposes would allow it to utilize all of its existing net operating losses.
Do either of the above considerations qualify as a tax-planning strategy as defined in
ASC 740-10-30-19?
Analysis
The first scenario would not be considered a tax-planning strategy, but rather a tax-planning action, as the action is contemplated in the ordinary course of business and is a planned operational change in the company’s underlying organization. In this case, it seems clear that the specific action is being undertaken for reasons that go well beyond realizing an existing tax attribute. The tax-planning action would be considered in the forecast at the time that it is completed, or when Company X commits to implementation in the near term with no significant uncertainties or contingencies.
The second scenario might qualify as a tax-planning strategy as the action is one that management would take in order to realize the benefit of its net operating losses prior to expiration.
The distinction between a tax-planning strategy and a tax-planning action is important because of how they are considered in valuation allowance assessments. It also dictates how the costs associated with each are handled. For purposes of determining the need for a valuation allowance, a tax-planning strategy can be anticipated and incorporated into future income projections. On the contrary, any potential future income from an anticipated tax-planning action ordinarily would not be included in projections until the company effects the action or commits to implementing the action in the near term because the impacts of the tax-planning action would not be objectively verifiable. However, in circumstances when the effects of the tax-planning action are objectively verifiable (i.e., no significant uncertainties or contingencies exist), the anticipated effects of such action would be included and incorporated into overall future income projections.
Pursuant to
ASC 740-10-30-19, the costs of implementing a tax-planning strategy (net of any tax benefits associated with those expenses) would be included when the company determined the amount of valuation allowance to be recorded. Conversely, the costs of implementing a tax-planning action are recognized when incurred as these costs are related to an action that a company may take in the ordinary course of business for reasons other than realization of tax attributes. See
TX 5.6.5 for additional information on the cost of tax-planning strategies.
Determining whether a particular action can be considered a tax-planning strategy depends largely on the specific facts and circumstances and requires significant judgment. Sometimes companies may have a tax-planning strategy that is valid in one year that becomes invalid in a subsequent year. For example, assume a company concludes that a sale of its non-strategic investment in a parcel of appreciated real estate would generate a gain, and that the strategy meets the criteria in
ASC 740-10-30-19. However, in a subsequent year, the parcel may become strategic due to the company considering expanding into the geography where the real estate is located. Alternatively, the value of the real estate may decline such that its sale would no longer generate a gain. Both of these circumstances (or others like them) could cause the tax-planning strategy to no longer meet the criteria in
ASC 740-10-30-19. If the impact on the valuation allowance determination is significant, management should consider disclosing the nature of the change regarding the tax-planning strategy and its financial statement impact.