Additional IRS Guidance Further Clarifies the Application of the New Corporate AMT, Notice 2023-64; IR-2023-167

The IRS has provided additional interim guidance in Notice 2023-64 for the application of the new corporate alternative minimum tax (CAMT). This guidance clarifies and supplements the CAMT guidance provided in Notice 2023-7, I.R.B. 2023-3, 390, and Notice 2023-20, I.R.B. 2023-10, 523, which were issued earlier this year. The IRS anticipates that the forthcoming proposed regulations on the CAMT will be consistent with this interim guidance and that they will apply for tax years beginning on or after January 1, 2024. Taxpayers may rely on the interim guidance for tax years ending on or before the date the forthcoming proposed regulations are published, and for any tax year that begins before January 1, 2024.

CAMT and Prior CAMT Guidance

For tax years beginning after 2022, a 15-percent CAMT is imposed on the adjusted financial statement income (AFSI) of an applicable corporation (generally, a corporation with a three-year average annual AFSI in excess of $1 billion) (Code Secs. 55(a) and (b), and 59(k)). To determine if the threshold is met, corporations under common control are generally aggregated and special rules apply in the case of foreign-parented multinational groups. The CAMT does not apply to S corporations, regulated investment companies (RICs), and real estate investment trusts (REITs).

A corporation’s AFSI is the net income or loss reported on the corporation’s applicable financial statement (AFS) with adjustments for certain items, as provided in Code Sec. 56A. Special rules apply in the case of related corporations included on a consolidated financial statement or filing a consolidated return. Applicable corporations are allowed to deduct financial statement net operating losses (FSNOLs), subject to limitation, and can reduce their minimum tax by the CAMT foreign tax credit (CAMT FTC) and the base erosion and anti-abuse tax (BEAT). They can also utilize a minimum tax credit against their regular tax and the general business credit.

Notice 2023-7 announced that the IRS intends to issue proposed regulations (forthcoming proposed regulations) addressing the application of the CAMT, and provided interim guidance regarding time-sensitive CAMT issues that taxpayers may rely on until the forthcoming proposed regulations are issued.

Notice 2023-20 provided additional interim guidance that taxpayers may rely on until the issuance of the forthcoming proposed regulations, including interim guidance intended to help avoid substantial unintended adverse consequences to the insurance industry arising from the application of the CAMT.

Considering the challenges of determining the CAMT liability, Notice 2023-42, 2023-26 I.R.B. 1085, provided relief from the addition to tax under Code Sec. 6655 in connection with the application of the CAMT (specifically, the IRS will waive the penalty for a corporation’s estimated income tax with respect to its CAMT for a tax year that begins after December 31, 2022, and before January 1, 2024).

Additional Interim Guidance Provided in Notice 2023-64

The IRS intends to propose rules in the forthcoming proposed regulations consistent with the interim guidance in Notice 2023-64, which provides taxpayers with additional clarity in applying the CAMT before the issuance of the forthcoming proposed regulations. Specifically, Notice 2023-64 sets forth the following guidance:

• Definition of a taxpayer for purposes of the guidance – a taxpayer includes any entity identified in Code Sec. 7701 and its regulations, including a disregarded entity, regardless of whether the entity meets the definition of a taxpayer under Code Sec. 7701(a)(14).
• Determining a taxpayer’s AFS – the guidance provides a definition of an AFS, a list of financial statements that meet the AFS definition, priority rules for identifying a taxpayer’s AFS; rules for certified financial statements, restatements, annual and periodic financial statements; and special rules for an AFS covering a group of entities.
• Determining a taxpayer’s AFSI – the guidance provides definitions of financial statement income (FSI) and AFSI; general rules for determining FSI and AFSI, including federal tax treatment not relevant for FSI or AFSI; and rules for determining FSI from a consolidated AFS.
• Determining the FSI, AFSI, and CAMT of tax consolidated groups – rules are provided for priority of consolidated AFS; calculation of FSI of a consolidated group; and calculation of the CAMT of a tax consolidated group.
• Determining AFSI with respect to certain foreign corporations – special rules are provided for the application of Code Sec. 56A(c) to certain foreign corporations.
• Determining the AFSI adjustment for certain taxes under Code Sec. 56A(c)(5).
• Determining the AFSI adjustment for depreciation – the new guidance modifies and clarifies the guidance for the AFSI depreciation adjustments provided in Notice 2023-7, and provides other AFSI rules for Section 168 property. Taxpayers that choose to rely on the interim guidance in section 4 of Notice 2023-7 on or after September 12, must apply the guidance in section 4 of Notice 2023-7, as modified and clarified by Notice 2023-64.
• Determining the AFSI adjustment for qualified wireless spectrum.
• Determining adjustments to prevent certain duplications and omissions of AFSI – rules are provided for adjustments resulting from a change in financial accounting principle or restatement of a prior year’s AFS; and adjustments for amounts disclosed in an auditor’s opinion.
• Determining the use of financial statement NOL (FSNOL) carryovers – the amount of an FSNOL carried forward to the first tax year a corporation is an applicable corporation (and subsequent tax years) is determined without regard to whether the taxpayer was an applicable corporation for any prior tax year.
• Determining an applicable corporation status – specific rules are provided for the application of the aggregation rules under Code Sec. 59(k)(1)(D); for determining an applicable corporation status of members of a foreign-parented multinational group; and for disregarding the distributive share adjustment.
• Determining the CAMT foreign tax credit (CAMT FTC) – generally, a foreign income tax is eligible to be claimed as a CAMT FTC in the tax year in which it is paid or accrued for federal income tax purposes by either an applicable corporation or a CFC with respect to which the applicable corporation is a U.S. shareholder, provided the foreign income tax has been taken into account on the AFS of the applicable corporation or CFC.

Applicability Dates, Request for Comments, and Effect on Other Documents

The IRS intends to publish forthcoming proposed regulations regarding the application of the CAMT that would include proposed rules consistent with the interim guidance provided in Notice 2023-7, as modified and clarified by Notice 2023-64, Notice 2023-20, and Notice 2023-64. It is anticipated that the forthcoming proposed regulations would apply for tax years beginning on or after January 1, 2024. Taxpayers may rely on the interim guidance provided in these Notices for tax years ending on or before the date forthcoming proposed regulations are published. However, in any event, a taxpayer may rely on such interim guidance for any tax year that begins before January 1, 2024.

The IRS has requested comments on any questions arising from the interim guidance provided in Notice 2023-64 as well as comments addressing specific questions listed in the guidance.

Sections 3, 4, and 7 of Notice 2023-7 are modified and clarified.