The IRS finalized proposed regulations to update the rules that apply to U.S. taxpayers that fail to file gain recognition agreements (GRAs) when they transfer certain property to foreign corporations in nonrecognition transactions (T.D. 9704). The rules change the standards under which transferors are required to recognize gain on the transfer of stock or securities.
Under Sec. 367(a), if, in any exchange described in Sec. 332, 351, 354, 356, or 361 (i.e., a nonrecognition transaction), a U.S. person transfers property to a foreign corporation, the transferee foreign corporation is not considered to be a corporation for purposes of determining the extent to which gain is recognized on the transfer. This results in the transferee’s recognizing gain.
One exception to this recognition treatment, however, involves the U.S. person’s transfer of stock or securities to a foreign corporation as long as the transferor files a GRA or “related documents.” The GRA must require the transferor to agree to include in income the gain realized but not recognized on the initial transfer of the stock or securities and to pay interest on any additional tax due if a gain recognition event occurs during the term of the GRA. One gain recognition event is the failure to comply with any requirement under the Sec. 367(a) regulations (which include a requirement to file an annual certification) or any requirement in the GRA.
Under the prior regulations, if there was a failure to comply with the Sec. 367(a) rules or a failure to have filed a timely GRA for the initial transfer, the U.S. transferor had to recognize the full amount of gain realized on the initial transfer of stock or securities unless the U.S. transferor demonstrated that the failure was due to reasonable cause and not willful neglect. The final regulations change this rule so that the U.S. transferor has to recognize the full amount of gain only if the failure to comply was “willful” as that term is defined in the civil penalty provisions, e.g., if it was the result of gross negligence, reckless disregard, or willful neglect. Whether a failure was willful would be determined based on the facts and circumstances; the regulations contain examples illustrating the application of the standard.
In related rules, under Sec. 6038B, a U.S. person who transfers certain property to a foreign corporation in certain nonrecognition transactions must report the transaction by filing Form 926, Return by a U.S. Transferor of Property to a Foreign Corporation, identifying the transferee foreign corporation and describing the property transferred. The penalty for not filing Form 926 is 10% of the fair market value (FMV) of the property at the time of the exchange, not to exceed $100,000 unless the failure was due to intentional disregard of the reporting obligation. If the U.S. transferor demonstrates that the failure was due to reasonable cause and not willful neglect, no penalty is imposed.
If a taxpayer complied with the GRA requirement, prior Regs. Sec. 1.6038B-1(b)(2) exempted the taxpayer from filing Form 926. But, if a taxpayer failed to comply with the Sec. 367(a) GRA requirements and failed to file Form 926, the taxpayer could be subject to both penalties: the recognition of gain and the 10% of FMV penalty. Under the prior regulations, a taxpayer could avoid the Sec. 6038B penalty by demonstrating reasonable cause; the final regulations do not change this provision to the willful standard that now applies under Sec. 367. They do modify the information that must be reported on Form 926 and require that a Form 926 be filed in all cases in which a GRA is filed. In a change from the proposed regulations, the final rules also require a U.S. transferor to report on the Form 926 the FMV of, adjusted tax basis of, and gain recognized on the transferred stock or securities.
A few other changes to the proposed regulations (REG-140649-11) were made in response to comments. One significant change is to provide a procedure to permit requests for relief for certain failures to file a GRA document or comply with the GRA provisions, which were supposed to be available on a prospective basis when the final regulations were published, for certain previously filed requests (including requests that were denied). A U.S. transferor that submits a previously filed request under this procedure, must agree that the final regulations under Regs. Sec. 1.6038B-1 contained in T.D. 9704 will apply to any transfer that is the subject of the request.
Another significant change from the proposed rules is to extend the
types of reporting obligations under Sec. 367(a) for which relief for
failures that are not willful will be available. The final regulations
amend Regs. Sec. 1.367(a)-2 (providing an exception to gain
recognition under Sec. 367(a)(1) for assets transferred outbound for
use in the active conduct of a trade or business outside of the United
States) and Regs. Sec. 1.367(a)-7 (on Sec. 367(a)’s application to an
outbound transfer of assets by a domestic target corporation in a Sec.
361 exchange) so that a taxpayer may, solely for purposes of Sec.
367(a), be considered not to have failed to comply with reporting
obligations under Regs. Secs. 1.367(a)-2 and 1.367(a)-7 by
demonstrating that the failure was not willful.
The final regulations generally apply on or after Nov. 19, 2014, the date they will be published as final in the Federal Register.
Sally P. Schreiber (
) is a JofA senior editor.