On October 2, 2017, the US Treasury Department (the Treasury) and the US Internal Revenue Service (the IRS) announced (Notice 2017-57) that they intend to amend the final regulations under Section 987 (T.D. 9794, the Final Section 987 Regulations), as well as certain related provisions of the temporary regulations under that section (T.D. 9795, the Temporary Section 987 Regulations), to delay the applicability date of those regulations by one year.¹ The Final Section 987 Regulations were identified in Notice 2017-38 (along with seven other regulations) as significant tax regulations requiring additional review under Executive Order 13789. For discussion of Notice 2017-38, see Tax Alert 2017-1086.

Background

On December 7, 2016, the Treasury and the IRS released final (T.D. 9794), temporary (T.D. 9795), and proposed regulations (REG-128276-12) under Section 987. The final regulations address how certain branch operations (known as qualified business units (QBUs)) that use a functional currency different than that of their owner (Section 987 QBUs) compute taxable income or loss (or earnings and profits (E&P), as applicable). The Final Section 987 Regulations also provide rules to determine the timing, amount, character, and source of any Section 987 gain or loss arising from a QBU. The Temporary Section 987 Regulations provide rules for deferring Section 987 gain or loss in connection with certain QBU terminations and transactions involving partnerships, as well as other related elections and special rules. For additional discussion, see Tax Alert 2016-2117.

Absent the amendments described in Notice 2017-57, in-scope taxpayers would have been required to transition to the Final Section 987 Regulations using a fresh-start transition method and to apply the foreign exchange exposure pool (FEEP) method to their Section 987 QBUs for tax years beginning on or after one year after the first day of the first tax year following December 7, 2016 (i.e., January 1, 2018, for in-scope calendar-year taxpayers).

Amendments to the Final and Temporary Section 987 Regulations

Notice 2017-57, issued October 2, 2017, announces intended amendments to delay the application of the Final Section 987 Regulations and certain related provisions of the Temporary Section 987 Regulations by one year. Thus, the Final Section 987 Regulations now apply to tax years beginning on or after two years after the first date of the first tax year following December 7, 2016 (i.e., January 1, 2019, for in-scope calendar-year taxpayers). No other changes were made to the Final Section 987 Regulations, and no other changes were made to the temporary and proposed regulations. Additionally, no changes were made to the provisions relating to the applicability dates of the deferral of Section 987 gain or loss and the temporary Section 988 regulations.²

The Treasury and the IRS also indicated they are considering changes that would allow taxpayers to elect to apply alternative rules for transitioning to the Final Section 987 Regulations and alternative rules for determining Section 987 gain or loss, but the Notice does not further describe any such alternative rules.

Taxpayers may rely on the provisions of Notice 2017-57 before amendments to the Final Section 987 Regulations and the related Temporary Section 987 Regulations are issued.

Implications

The Final Section 987 Regulations prescribe an entirely different approach to computing taxable income or loss and Section 987 gain or loss of a Section 987 QBU than has been used by most taxpayers for the past 30 years and impose substantial recordkeeping and compliance requirements.

With the delay, and subject to any further amendments, taxpayers have another year to create and implement the many systems and processes necessary to transition to and comply with the Final Section 987 Regulations, including the identification and translation of attributed assets and liabilities of transitioning QBUs at historic rates, the annual determination and translation of QBU taxable income or loss on an item-by-item basis, the annual pooling of changes in marked assets and liabilities, the annual tracking of remittances, and the annual determination, characterization, and sourcing of recognized Section 987 gains and losses, including for subpart F purposes. Several key considerations remain, however, for taxpayers before transition.

Immediate US federal income tax considerations — Taxpayers should be identifying their Section 987 QBUs, QBU items, and quantifying the amount of any unrecognized Section 987 gain or loss under their current Section 987 methodology. Given current foreign exchange market volatility (including the recent strengthening of foreign currencies against the US dollar) and anticipated US corporate tax reform, taxpayers should be considering their ability to make, and the treatment of, QBU remittances and terminations in the current year. In addition, taxpayers should be considering the treatment of Section 988 transactions of Section 987 QBUs that are denominated in the owner's functional currency.

For the time being, the postponement of the applicability date of the Final Section 987 Regulations does not change the requirement that in-scope taxpayers transition to the Final Section 987 Regulations using the so-called fresh-start method, which, for most taxpayers, may result in the elimination of any unrecognized Section 987 gain or loss under the taxpayer's current Section 987 methodology.

Moreover, while the application of the Final Section 987 Regulations and associated provisions of the Temporary Section 987 Regulations were delayed, Notice 2017-57 specifically indicates that no other changes were made to the temporary and proposed regulations, including certain provisions that have been effective since January 6, 2017 (or since December 7, 2016, in certain cases) and apply to a broader scope of taxpayers (including owners that are not within the scope of the Final Section 987 Regulations). These temporary and proposed regulations may defer recognition of Section 987 losses on outbound transfers, and gain and losses on certain other terminations and related-party transfers, and may defer a borrower's foreign currency loss on related-party debt.

Income tax accounting considerations — For financial accounting purposes, the issuance of the final and temporary regulations was considered a change in enacted tax law during the reporting period that included the date of release, i.e., December 7, 2016. As a result, companies with Section 987 QBUs should have already considered the tax accounting implications of the effects of the final and temporary regulations on their financial reporting.

Notice 2017-57 sets forth an administrative pronouncement, on which taxpayers can rely, providing for a revised applicability date of the Section 987 regulations. There is also an election to apply the regulations early. As such, calendar-year taxpayers not electing to early adopt the regulations before the revised applicability date should consider whether existing deferred tax assets and liabilities will reverse before the revised applicability date of January 1, 2019, when measuring deferred tax assets and liabilities affected by the Section 987 regulations. A change in the applicability date is similar to a change in judgment given that Notice 2017-57 provides that the revised Section 987 regulations will allow taxpayers to elect to early adopt the original applicability date or use the revised applicability date. To the extent a change in judgment results in the subsequent recognition, derecognition, or changes in measurement of a deferred tax position that was previously recognized in a prior annual period, it should be considered a discrete event recognized in earnings in the period (interim as well as annual) in which the change occurs.

Additional pre-transition considerations — Given the complexity and compliance burden of the Final Section 987 Regulations, all in-scope taxpayers should be reviewing their existing processes and data systems and considering how they will satisfy the transition and ongoing recordkeeping and maintenance requirements of the Final Section 987 Regulations. In addition, all owners of Section 987 QBUs (even owners that are not within the scope of the Final Section 987 Regulations) should be considering whether to make any of the applicable elections provided in the final and temporary regulations.

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ENDNOTES

¹ Notice 2017-57 announces that the Treasury and the IRS intend to amend Treas. Reg. Section 1.861-9T, 1.985-5, 1.987-11, 1.987-1T through 1.987-4T, 1.987-6T, 1.987-7T, 1.988-1, 1.988-1T, 1.988-4, and 1.989(a)-1 to provide that the final regulations and the related temporary regulations will apply to tax years beginning on or after two years after the first date of the first tax year following December 7, 2016.

² See Treas. Reg. Section 1.987-12T(j) and 1.988-2T(j).