When the Treasury Department released its controversial update to section 385 of the IRS tax code, it added that it intends to “move swiftly” to finalize the proposed regulations. To Deloitte tax and treasury experts Melissa Cameron and Steve Blore, that seemingly innocuous statement of intent was actually a warning: Complain all you want, but a truncated comment period suggests a limited interest in fully understanding taxpayer concerns.
The new rules have multiple effective dates, the most notable being that related party loans originating after the April 4 publish date are subject to the documentation requirements.
“You’ve got to put procedures in place now,” said Cameron, head of global treasury services for Deloitte.
“This will require a lot of documentation and preparation,” said Blore, an international tax partner with Deloitte.
Cameron and Blore list five steps treasury and finance can take to prepare for the new 385 tax regulations:
Educate: Teach treasury, tax and accounting personnel about the rules. Don’t forget to implement a process to refer all potential issues to your tax team.
Inventory: Identify such debt instruments as loans, cash pooling and related arrangements, ordinary course transactions in the nominal course. Build a sustainable inventory process so you’ll always know about your debt instruments.
Plan: Maximize the terms of grandfathered debt under the new regulations. Plan to use the current year earnings-and-profit exception. Plan to use the 90-day transition rule. Consider moving third-party debt to the United States. Modify due diligence procedures to consider the new rules. And determine the impact on future effective tax rates.
Document: Gather all documents for cash pooling and ordinary course transactions, then develop a sustainable approach to document reasonable expectation of repayment, actual payments, and debtor-creditor behavior on non-payment. Lastly, develop a process to archive documentation.
Sustain: Design processes to make management of transactions more routine. Build and implement processes, controls and technology to capture and report routine and one-off transactions. Establish measures to assess the effectiveness of processes and monitor their on-going performance.