The IRS on Friday issued final regulations (TD 9496) regarding the new information reporting requirement under IRC § 6050W for payment card and third-party network transactions. Starting Jan. 1, 2011, banks and similar transaction settlement entities must file annual information returns for each participating merchant or other payee reporting aggregate gross receipts for the calendar year from credit and debit card sales or third-party network transactions. The final regulations adopted with several modifications—some in response to numerous comments—proposed regulations issued in November 2009 (REG-139255-08, with comments requested by Notice 2009-19).
The final regulations provided implementation guidance and amended existing regulations under sections 6041 and 6041A to provide relief from duplicate reporting for certain transactions. They also amended regulations under sections 6721 and 6722 to reflect penalties applying to failures to file correct information returns and payee statements required by section 6050W. In addition, the final regulations adopted without change proposed amended regulations under section 3406 to provide that amounts reportable under section 6050W are subject to backup withholding (effective for amounts paid after Dec. 31, 2011).
Explanations of Common Types of Payment Cards
The final regulations included explanations and examples of several common types of payment cards and related instruments that were asked about by commenters but do not meet statutory requirements for reporting, the IRS said. For example, purchases made with a payment card issued by a retail merchant that may be used only with that merchant are not reportable, nor are ATM withdrawals or similar transactions. The IRS noted that reportable payment card transactions must involve use of a card that is accepted as payment (section 6050W(c)(2)) by a network of unrelated persons (section 6050W(d)(2)(B)). Thus, it classified these common transactions this way:
| Type of instrument or transaction | Reportable |
| Single retailer ("private label") card | No |
| Limited network ("quasi-private label") card | Yes |
| Multi-retailer (e.g., "mall") card | Yes, except if any of the merchants in the network are related to the issuer, no reporting is required for any transaction in which the card is accepted as payment by the related merchant. |
| Government benefits card (food stamps, welfare or unemployment) | Yes, if used for purchase of goods or services and accepted as payment by a network of unrelated merchants. |
| Payment or benefits card used to obtain a loan, cash advance or ATM withdrawal | No |
| Paper check associated with a payment card account ("convenience check") | No |
Mitigation of Expanded Form 1099 Reporting Requirements
The final regulations adopted proposed rules to avoid duplicate reporting of transactions by providing relief from the expanded information reporting requirements under section 6041. Under the Patient Protection and Affordable Care Act, PL 111-148, payments by a trade or business aggregating $600 or more to any single vendor during any calendar year will have to be reported at the end of each calendar year to the vendor and to the IRS on an information return, such as Form 1099. The final regulations specify that transactions that are reportable under both sections 6041 and 6050W must be reported under section 6050W and not under section 6041.
The proposed regulations did not provide similar relief for third-party network transactions. In response to “numerous” requests, the IRS in the final regulations also extended this relief to third-party network transactions. Solely for purposes of determining whether a payor is eligible for this relief, the de minimis threshold for reportable third-party network transactions under section 6050W (more than 200 transactions to a payee aggregating more than $20,000 per calendar year) is disregarded.
How to Handle Charge-Backs
The final regulations also addressed another common question: How transactions that incorporate “charge-backs” or other adjustments should be handled. The IRS did not adopt suggestions to report net sales as being more likely to match amounts reported on tax returns, noting that the statute requires reporting of gross amounts (section 6050W(a)(2)). “The information reported on the return required under these regulations is not intended to be an exact match of the net, taxable, or even the gross income of a payee,” the IRS said in a preamble.
Definitions and Clarifications
The final regulations contained detailed definitions and examples illustrating various terms employed in section 6050W, including:
- “payment settlement entity” (Treas. Reg. § 1.6050W-1(a)(4));
- “gross amount” (Treas. Reg. § 1.6050W-1(a)(6));
- “payment card transaction” (Treas. Reg. § 1.6050W-1(b)(1));
- “merchant acquiring entity” (Treas. Reg. § 1.6050W-1(b)(2)); and
- “third party settlement organization” (Treas. Reg. § 1.6050W-1(c)(2)).
Other matters clarified in the final regulations included:
- Where more than one payment settlement entity is involved in a transaction, the reporting entity is that which in fact makes payment in settlement of the transaction.
- When a payment is made or received in a foreign currency, it is converted into U.S. dollars on the date of the transaction at the spot rate or other reasonable convention.
- The role of electronic payment facilitators (section 6050W(b)(4)(B)).
- The exclusion under section 6050W(d)(1)(B) for payees with a foreign address.
- Application of backup withholding rules for third-party network transactions in light of the de minimis threshold.
The regulations apply to returns for calendar years beginning, or amounts paid, after Dec. 31, 2010.
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