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Final Regulations Reflect CARES Act Impact on FDII, GILTI, and FTC Transition Carryback Rules

The Treasury and IRS have issued final regulations addressing the calculation of qualified business asset investment for qualified improvement property, under the alternative depreciation system (ADS), for purposes of the Code Sec. 250 deduction (for foreign-derived intangible income and Code Sec. 951A global intangible low-taxed income (GILTI)) and for purposes of determining GILTI.

The regulations also contain transition rules relating to the impact of loss accounts on net operating loss carrybacks allowed under the Coronavirus Aid, Relief, and Economic Security Act (P.L. 116-136) (the “CARES Act””).

Treatment of Qualified Improvement Property Under Code Secs. 250 and 951A
The regulations clarify that the technical amendments to Code Sec. 168 made by section 2307(a) of the CARES Act apply to determine the adjusted basis of property under Code Sec. 250 and Code Sec. 951A. The CARES Act classified qualified improvement property as 15-year property with a 20-year recovery period, for purposes of ADS. The rule is treated as effective December 22, 2017. The ADS rules used for determining qualified business asset investments are the rules in effect on December 22, 2017.

NOL Carrybacks
The CARES Act allowed taxpayers to carryback for five years, NOLs incurred in 2018 through 2020. The regulations provide rules analogous to the existing transition rules in Reg. §1.904(f)-12(j) to situations involving an NOL arising in a post-2017 tax year that is carried back to a pre-2018 tax year. The rules of Reg. §1.904(g)-3(b) apply to the NOL carryback, and income in a pre-2018 separate category in the tax year to which the NOL is carried back is generally treated as if it included only income that would be assigned to the same separate category in post-2017 tax years.

Therefore, any separate limitation loss created by reason of a passive category component of a post-2017 NOL that is carried back to offset pre-2018 general category income will be recaptured in post-2017 tax years as general category income, and not as a combination of post-2017 general, foreign branch, or Code Sec. 951A category income. Losses will first ratably offset a taxpayer’s general category income in the carryback year, to the extent thereof, and that no separate limitation loss account will be created as a result of that offset. The amount of income in the general category available to be offset under this rule is determined after first offsetting the general category income in the carryback year by a post-2017 NOL component in the general category that is carried back to the same year.

PFIC Rules
Proposed regulations under Code Sec. 1297 and Code Sec. 1298, for determining whether a foreign corporation is treated as a passive foreign investment company (PFIC) and the treatment of income and assets of a qualifying insurance corporation that is engaged in the active conduct of an insurance business, were not finalized.

The Treasury and IRS intends to finalize the regulations separately.

FL - Guidance provided on tax relief for properties made uninhabitable by Hurricanes Ian or Nicole

Florida provides guidance regarding property tax relief for residential properties rendered uninhabitable for 30 days or more due to Hurricanes […]

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FL - Guidance provided on tax relief for properties made uninhabitable by Hurricanes Ian or Nicole

FL - Relief for corporate income taxpayers impacted by Hurricane Nicole discussed

Florida will follow the corporate income tax relief granted by the Internal Revenue Service (IRS) for Hurricane Nicole affected taxpayers […]

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FL - Relief for corporate income taxpayers impacted by Hurricane Nicole discussed

Elizabeth Askey Appointed As New Deputy Chief Of IRS Appeals, IR-2022-219

The IRS Independent Office of Appeals has announced the appointment of Ms. Elizabeth Askey, an alumnus of Harvard Law School, […]

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Elizabeth Askey Appointed As New Deputy Chief Of IRS Appeals, IR-2022-219

Courtney Kay-Decker Appointed as New Deputy Chief Taxpayer Experience Officer, IR-2022-222

The IRS has appointed Courtney Kay-Decker as the new Deputy Chief Taxpayer Experience Officer today. Kay-Decker will lead IRS efforts […]

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Courtney Kay-Decker Appointed as New Deputy Chief Taxpayer Experience Officer, IR-2022-222

IRS Issues Guidance on Form W-4 Substitute Submissions, Additional Guidance for Substitute Submissions of Form W-4

The IRS stated that, for 2022, general guidelines for electronic substitutes to paper Forms W-4 can be found in the […]

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IRS Issues Guidance on Form W-4 Substitute Submissions, Additional Guidance for Substitute Submissions of Form W-4

TIGTA Launches New Website

The Treasury Inspector General for Tax Administration (TIGTA), J. Russell George, announced a redesign of the agency’s website, to better serve […]

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TIGTA Launches New Website

FBAR Filing Deadline Extended for Individuals with Signature Authority but No Financial Interest in Certain Accounts, FinCEN Notice 2022-1

The Financial Crimes Enforcement Network (FinCEN) announced a further extension of time for certain individuals to file a Report of […]

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FBAR Filing Deadline Extended for Individuals with Signature Authority but No Financial Interest in Certain Accounts, FinCEN Notice 2022-1

FL - Alachua County local government infrastructure surtax rate increased

Beginning January 1, 2023, the combined Florida state and local sales and use tax rate for Alachua County is 7.5%. […]

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FL - Alachua County local government infrastructure surtax rate increased

FL - 2023 fuel tax rates announced

The 2023 Florida motor fuel, diesel fuel, and aviation fuel tax rates are announced. Annual adjustments to the state fuel […]

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FL - 2023 fuel tax rates announced

IRS Issues Fact Sheet on Hobby vs. Business Income, FS-2022-38

The IRS has issued a fact sheet related to differentiating between taxpayers’ hobbies and businesses. There are several factors that […]

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IRS Issues Fact Sheet on Hobby vs. Business Income, FS-2022-38