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www.pwc.com Tax Accounting Services Accounting for Income Taxes – 2015 Year-end Hot Topics Introduction Valuation allowance assessment December 2015 Standard setting update Indefinite reinvestment PCAOB update Acquisition accounting Global tax law developments European Union – State aid SEC comment letters Disclosures Important links Let’s Talk Introduction Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Calendar year 2015 has seen considerable activity in the legislative, regulatory and accounting standard setting landscapes both in the United States and abroad. At the same time, the global tax environment continues to evolve as companies are faced with rapidly changing business conditions, increased stakeholder scrutiny, and a heightened enforcement atmosphere. If all that was not enough, we have seen several jurisdictions introduce new forms of taxation and incentives in their effort to respond to these same developments. These developments, combined with an environment of political and economic uncertainty, have added to the existing challenges in accounting for income taxes and have made tax planning and certain more complex areas of tax accounting worthy of boardroom discussion. As in prior years, this publication is focused on topics we believe will be widely relevant to the preparation of 2015 year-end financial statements. Unless specifically indicated, the discussion and references throughout the publication pertain to US generally accepted accounting principles (US GAAP) and reporting considerations. This publication, our accounting for income taxes guide, and other tax accounting publications are also available on our TAS to Go app, which can be downloaded via App Stores. If you would like to discuss any items in this publication or other tax accounting issues, please contact your local PwC team or the local Tax Accounting Services network member listed on the back page. Regards, David L. Wiseman Acquisition accounting Disclosures Important links Let’s talk David L. Wiseman US National Tax Accounting Services Leader [email protected] 2 Standard setting update Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk Companies are encouraged to provide comments on Exposure Drafts and should be aware of existing early adoption guidance (e.g., classification of deferred taxes as non-current guidance under ASU 2015-17 can be adopted immediately, if desired) to the extent included in certain standards. See PwC’s Tax Accounting Services publication for further information on the FASB projects. 3 PCAOB update Overview Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment The Public Company Accounting Oversight Board’s (PCAOB) staff issued a Staff Inspection Brief (Brief) in October 2015, covering inspections of registered audit firms and their audits. Consistent with prior years, the inspections staff focused on areas where inspectors found significant deficiencies and highlighted three areas: • Internal controls over financial reporting, particularly related to the testing of the design and/or operating effectiveness of controls. • Assessing and responding to risks of material misstatement. • Accounting estimates, including fair value measurements, particularly related to testing of key data and significant assumptions used by management to develop those estimates. Indefinite reinvestment Income taxes Acquisition accounting From 2011 through 2014, income taxes have been in the top five audited financial statement reporting areas selected for inspection. The PCAOB’s focus in this area has continued in 2015. In deciding its areas of focus and scrutiny, the PCAOB monitors emerging areas of audit risk. These new areas of audit risk have included increases in M&A activity, economic factors such as falling oil prices, and the growth in undistributed foreign earnings. Disclosures Important links Let’s talk Each of these areas of risk has the potential to impact the level of scrutiny that income taxes attract during a PCAOB inspection. Companies should consider how they have responded to these areas of risk in both their accounting for income taxes and in their design and execution of related financial reporting controls. The PCAOB views the audit of income taxes as an area of inherent complexity, particularly in relation to topics such as valuation allowances, indefinite reinvestment assertions and uncertain tax positions. Each of these areas often requires accounting estimates and significant judgments that are heavily based on facts and circumstances. With increased investor and public attention being given to undistributed earnings and cash held overseas as well as the push for increased transparency in disclosures, we expect this correlation between the level of perceived inherent risk and the level of scrutiny of audit procedures performed by external auditors in the area of tax to continue. From 2011 through 2014, income taxes have been in the top five audited financial statement reporting areas selected for inspection. 4 Global tax law developments Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk 5 European Union – State aid Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk The accounting consequences of many fiscal State aid investigations are likely to be within the scope of ASC 740. Overview Financial accounting considerations Over the past few years, the European Commission (EC) has expanded its historical view of governmental arrangements, which could be considered unlawful State aid. These are situations where a company receives discretionary governmental support through which it receives an unfair advantage over its competitors. The determination as to whether there is unlawful State aid is ultimately a matter of EU competition law, not income tax law. However, the accounting consequences of many such investigations are likely to be within the scope of ASC 740. In 2014, the EC announced a new focus on fiscal State aid and initiated formal investigations of several companies’ tax rulings and member countries’ tax regimes. Fiscal State aid may include favorable tax rates, subsidies, exemptions or other tax concessions. If State aid is determined to have been granted, the EC can require the local country to collect back taxes for up to ten years (plus interest) based on the benefit received. In October 2015, the EC issued final decisions in its formal State aid investigations of transfer pricing agreements between Starbucks and the Netherlands, as well as Fiat and Luxembourg. The EC opinion concluded that both companies benefited from unlawful State aid and ordered full recovery of the aid. The EC’s final decisions on two more significant company investigations with tax agreements (i.e., Apple’s transfer pricing ruling in Ireland and Amazon’s transfer pricing ruling in Luxembourg) as well as its review of the Belgian excess profit ruling system are expected shortly. While the EU Member countries or the companies in these investigations may further contest or appeal the determinations, the EC’s decisions highlight the risk that State aid may pose to companies operating in the EU. To the extent an organization has the risk that its positions taken may constitute unlawful State aid, companies should have internal controls in place to monitor State aid developments and to consider possible financial reporting implications whenever a tax ruling, tax settlement, or even tax regime may be considered State aid. Companies should assess the potential effect of these continuing developments on existing uncertain income tax positions, as well as on amounts owed for periods previously considered closed. State aid should also be an important consideration when establishing any new tax position with the tax authorities, whether in relation to a tax ruling, tax settlement, or the application of a specific tax regime. While not required in the accounting literature to support their position, we would expect that some companies may need to seek expert support in assessing risks or uncertainties that the EU State aid rules pose. Management’s analysis should address the company’s position in the context of the relevant accounting standard, such as the ‘more likely than not’ recognition threshold of ASC 740 as well as any disclosure and internal control considerations. For more information, please refer to the following resources: • EU Fiscal State aid – a briefing document • European Commission announces an investigation into the Belgian excess profit ruling system 6 SEC comment letters SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk Click here to access: Stay informed: 2015 SEC comment letter trends Income taxes With respect to valuation allowance considerations or testing, the SEC comments sought to more deeply understand the facts, circumstances, judgments, and decisions made by management. Emphasis was also given to understanding management’s weighting of specific positive and negative evidence. The staff regularly focuses on the importance of early warning disclosure of possible nearterm valuation allowance changes. Regarding the effective tax rate presentation, the SEC often requested quantitative and qualitative details to support the amounts and level of aggregation in the ‘foreign rate reconciling items’ or ‘foreign rate differential’ line item. Requests have included: (1) a discussion of how the line item was computed by identifying its significant components, and (2) a reconciliation detailed by country. Attention has also been given to situations where significant items were discussed in the financial statements but unexpectedly had no significant impact on the effective tax rate (e.g., a valuation allowance release with minimal rate impact). We expect areas of management judgment— particularly relating to valuation allowance considerations, foreign tax rates, unremitted earnings, and uncertain tax positions—to be a continued area of focus of regulators, investors, and commentators in 2016. Comment letters issued in 2015-2013 180 160 140 120 100 80 60 40 20 0 151 166 142 133 126 130127 121 108 70 45 57 59 64 85 9 17 17 2015 2014 2013 Other European Union – State aid Valuation Allowance Global tax law developments Because of the risks and uncertainties associated with UTPs, we often find comment letters issued when a registrant’s disclosures lack the clarity necessary to provide financial statement readers an understanding of the change in the UTP that has already occurred or could potentially occur in the near term (i.e., sufficient early warning disclosures). Uncertain Tax Position PCAOB update Rate Reconciliation Standard setting update Indefinite Reversal Criterion Introduction The SEC staff has continued to emphasize that a registrant’s indefinite reinvestment assertion(s) related to foreign earnings should be consistent with its disclosures within: (1) Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A), (2) financial statement footnotes, and (3) other publicly available information. The staff has regularly required additional disclosure in the liquidity section of MD&A of potential tax effects from repatriating offshore cash and cash equivalents. Business Combinations Back Next During the year, the staff of the Securities and Exchange Commission (SEC) continued to pose a significant number of income tax questions to preparers via staff comment letters. Of the comment letters issued and released to the public between October 1, 2014 and September 30, 2015, 422 included questions related to tax matters. Of those taxrelated comments, 305 related collectively to: deferred tax valuation allowance assessments, the presentation of the effective tax rate reconciliation, the accounting and disclosure for indefinite reinvestment of foreign earnings, and the accounting and disclosure of uncertain tax positions (UTPs). 7 Valuation allowance assessment Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk Assessing the need for a valuation allowance against deferred tax assets (DTAs) requires significant judgment and a thorough analysis of relevant positive and negative evidence. The accounting standard prescribes that the weight given to each piece of evidence be directly related to the extent to which that evidence can be objectively verified. Accordingly, recent financial results are given more weight than future projections. Net deferred tax liabilities Even companies with net deferred tax liabilities in a particular jurisdiction must consider the need for a valuation allowance. While the reversal of deferred tax liabilities can be used as a source of income to realize a DTA, the deferred tax liability only provides for realization of DTAs if the liabilities reverse in a pattern or period that would help to recover the DTAs. As a result, deferred tax liabilities generated by indefinite-lived intangibles or goodwill often will not represent a source of Tax planning strategies income that allows for the realization of deferred tax assets in a A tax planning strategy is an action management ordinarily jurisdiction where tax attributes such as loss carryforwards might not take, but would take to prevent a tax asset from expire. In jurisdictions where loss carryforwards do not expire, expiring unused. In order to qualify as a tax planning strategy the potential loss carryforward generated by the reversal of (and thus be included in the accounting), the action must be DTAs or DTAs on loss carryforwards themselves, could be both prudent and feasible, and result in realization of the supported by deferred tax liabilities on indefinite-lived DTA from a group-wide perspective. In other words, there intangibles since both could be scheduled to offset in the should be realizable tax savings to the consolidated financial indefinite future. reporting group. Unlimited carryforwards Consideration of prudent and feasible tax planning strategies If an entity has consistently operated at a loss, it may be difficult is required to the extent the other sources of taxable income to overcome that negative evidence, even for DTAs that have an are not sufficient to realize the DTA. In other words, if it could have an impact on the accounting, the consideration of unlimited carryforward period. On the other hand, a sustained level of profitability, even at a low level, may result in sufficient prudent and feasible tax planning strategies is not optional. positive evidence when taken together with a non-expiring carryforward. Similar considerations can arise with respect to the need for a valuation allowance against certain expenditure-based income tax credit carryforwards that continue to increase given the consistent generation of new credits in excess of what is being utilized. In cases where there are large carryforwards supported by relatively small levels of sustainable earnings we would often expect disclosures informing the reader that the DTAs may not be recovered for some time. For more information, please refer to the following resources: • PwC’s Guide to Accounting for Income Taxes Chapter 5 • PwC’s valuation allowance podcast 8 Indefinite reinvestment Overview Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters The growth in the amount of unremitted foreign earnings maintained by US multinationals combined with the political pressures that come with the deferral of taxation of these amounts in the US have made the application of the indefinite reinvestment assertion a matter of heightened concern for many stakeholders. Companies should consider the following when evaluating their indefinite reinvestment assertions: • Coordination and alignment among multiple business functions within a company’s global organization, such as treasury, legal, operations, and business development. Processes or controls must be in place to ensure that the indefinite reinvestment assertion is consistent with the organization’s cohesive view, plans, and expectations. • A specific documented plan that addresses the parent and subsidiary’s long- and short-term projected working capital and other financial needs. This would generally include specific evidence as to why there is not a need for unrepatriated earnings to be distributed. In cases where management supports indefinite reinvestment based upon a higher expected rate of return on reinvesting the foreign earnings as compared with the after-tax return on repatriated funds, that analysis/assessment should be included in the company’s documentation. • Assessment of the consistency of the assertion with the parent and subsidiary’s long- and short-term budgets and forecasts, any past dividends, and the tax consequences of a decision to remit or reinvest. • Assessment of whether any intercompany transactions, such as a loan or a credit support agreement provided by the foreign operations to the parent, may be relevant in assessing the assertion. The assertion is supported by all levels of management who could impact management’s actions that could affect the assertion. Where controlling or shared ownership is present, the assertions must be aligned with the expectations of owners who may have governance or decision-making influence. Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk • Disclosures The following disclosures are required in a company’s annual financial statement footnotes: • The accumulated amount of undistributed foreign earnings of subsidiaries, and any other component of the outside basis difference, such as cumulative translation adjustments, for which a deferred tax liability has not been recorded because of an indefinite reinvestment assertion. • The estimated unrecognized deferred tax liability related to such amounts if the determination of an estimate is practicable, or a statement that calculation of an estimate is not considered practicable. • A description of the types of events that would cause such foreign earnings (and any other component of the outside basis difference) to become taxable in the parent’s home country jurisdiction. SEC comment letters have reminded preparers of the requirement to disclose an estimate of the unrecorded tax liability relating to unremitted earnings, if practicable to calculate. Preparers asserting impracticability should be prepared to articulate the basis for their view. For more information, please refer to the following resources: • PwC’s Guide to Accounting for Income Taxes Chapter 11 • PwC Tax Accounting Services publication: Income tax disclosure • PwC Tax Accounting Services publication: Deferred taxes on foreign earnings: A road map 9 Acquisition accounting Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Judgment is often required to determine whether the tax effects of certain post-acquisition transactions, events or elections should be recognized in acquisition accounting. Examples of such transactions may include: • the transfer of intangible or intellectual property (IP) • the migration of operations out of or into different jurisdictions • intercompany restructuring transactions • elections to change the tax status of foreign entities (e.g., converting controlled foreign corporations to branch operations) • certain mergers or similar transactions provided for under foreign tax law • elections to treat a non-taxable acquisition as a taxable acquisition If not recognized in acquisition accounting, the related tax effects may impact earnings and create volatility in a buyer’s effective tax rate. Determining whether postacquisition transactions or elections should be recognized in acquisition accounting requires careful consideration of specific facts and circumstances. The following table provides some of the factors that can affect these determinations. Let’s talk Evaluating the tax effects of post-acquisition transactions/elections Deferred taxes for outbound transfers of IP In situations where multiple legal entities reside in different tax jurisdictions but are accounted for in one reporting unit for financial reporting purposes, deferred taxes will need to be measured based on the enacted tax rate for each legal entity in which an acquired asset or assumed liability resides. For legal entities subject to taxation in multiple jurisdictions, such as those having foreign branches, deferred taxes would typically be provided for all jurisdictions. When a US-based company acquires a multinational business, attention should be given to the possible need for US deferred taxes related to acquired IP which resides offshore (either as a result of a prior or post-acquisition outbound transfer). The acquirer may be required to pay US income taxes in future years, for instance, based upon deemed annual taxable royalties over the life of the IP or upon its disposal. As a result, there could be both local country and US deferred taxes related to the acquired IP based upon its fair value in acquisition accounting. For more information, please refer to the following resources: • PwC M&A Snapshot – Change the way you think about tomorrow’s deals 1) Whether the election is available and contemplated as of the acquisition date 2) Whether the election or transaction is primarily within the buyer’s control with no significant uncertainties as to completion 3) Whether the election or transaction requires a separate payment to be made to obtain tax benefits 4) Whether other significant costs will be incurred to implement the transaction 10 Disclosures In 2015, income tax disclosures continued to be a hot topic with investors, regulators, lawmakers, and preparers of financial statements. Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk In the US, income tax disclosures became a focus of the FASB as part of its broader Disclosure Framework project undertaken to improve the effectiveness of disclosures in financial statements. The FASB is considering changes to income tax disclosures related to foreign earnings, unrecognized tax benefits, the tax rate reconciliation, income taxes paid, tax attribute carryforwards, deferred taxes, valuation allowance, and tax law changes. Similarly, ‘effective’ income tax disclosures have continued to be an area of focus by the SEC. The SEC staff has encouraged registrants to take actions to make disclosures more effective by streamlining them, eliminating generic language, avoiding duplication, and making greater use of hyperlinks and cross-referencing where applicable and appropriate. In addition to income tax disclosures in financial statements, enhanced transparency and disclosure of tax-relevant information to governments and the public are being more common and more frequently requested. The demand for greater transparency is reflected in the agendas and action plans of the OECD, the G-20, the European Union, and the United Nations. The most immediate global tax transparency initiative faced by multinationals is the OECD’s country-bycountry (CbC) reporting recommendation and template issued as part of their Base Erosion and Profit Shifting (BEPS) project. In Europe, the EC is expected to finalize their requirements for further corporate tax transparency in early 2016. A number of countries have taken unilateral actions to require greater transparency of tax information. For example, the UK government recently proposed the introduction of a legislative requirement for all large businesses to publish their tax strategy, which would lead to greater public scrutiny of their approach towards tax planning and compliance. Australia has announced a proposal to develop a tax transparency code—a voluntary code aimed at providing greater public disclosure of tax information by businesses, particularly large multinationals. With the increased volume of mandatory reporting requirements and the continued interest in companies’ tax affairs from a range of stakeholders, there are concerns that financial accounting data alone does not provide the full picture. To address a perception that businesses may not be paying their ‘fair share’ of tax, more companies are choosing to proactively say more about tax, including their approach to tax planning, tax governance, and total tax contribution. As eyes continue to focus on companies’ tax affairs, and the requested level of transparency of income tax-related information continues to evolve, companies should assess their existing disclosures to determine if the information it provided gives a reader insight into management’s assessment of their financial condition and provide stakeholders with decision-useful information. 11 Important links Back Next Guide to Accounting for Income Taxes: This PwC guide is intended to clarify the fundamental requirements involved in the accounting for income taxes and to highlight key points that should be considered before and after transactions are undertaken. Income tax disclosure: Numerous income tax accounting matters require the use of estimates, judgments, and other subjective information that can obscure the presentation in the financial statement accounts. Clarifying disclosures can enable users to gain a better understanding of the reporting entity’s income tax environment. IFRS and US GAAP: similarities and differences: This PwC publication provides a broad understanding of the major differences between IFRS and US GAAP, as well as insight into the level of change on the horizon. Patent boxes and technology incentives: This publication discusses key tax and financial reporting considerations of patent box regimes and other technology incentives. Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures Important links Let’s talk Around the world: When to account for tax law changes: This is the third edition of our global publication on tax law enactment and substantive enactment dates. This edition has been updated to include information on 17 additional jurisdictions. It also reflects any changes in our understanding of the lawmaking processes of jurisdictions presented in the previous edition. Click here for upcoming and previous TAS events TAS to Go: An app designed to provide meaningful and real-time access to PwC’s comprehensive Guide to Accounting for Income Taxes, tax accounting thought leadership and insights, as well as examples of relevant SEC comment letters. Click here to download on iOS Click here to download on Windows devices Foreign currency: PwC is pleased to offer the first edition of our foreign currency guide. The accounting guidance on foreign currency matters was written more than 30 years ago; yet this topic remains particularly relevant in today’s global economy. Click here to download on Android devices 12 Let’s talk To have a deeper conversation about how these issues and predication may affect your business, please contact your usual PwC adviser or one of the following tax accounting specialists: TAS Market Champions Market Leader Phone Email Atlanta Ben Stanga +1 (615) 503-2577 [email protected] Northern California – Ty Kanaaneh San Jose +1 (408) 817-5729 [email protected] Northern California – Adan Martinez San Francisco +1 (415) 498-6154 [email protected] Southern California Darrell Poplock +1 (213) 356-6158 [email protected] Carolinas Tamara Williams +1 (704) 344-4146 [email protected] David Wiseman US National Tax Accounting Services Leader [email protected] Edward Abahoonie Tax Accounting Services Technical Leader [email protected] Steven Schaefer National Practice Tax Partner [email protected] Katya Umanskaya US National Tax Accounting Services Director [email protected] Chicago Rick Levin +1 (312) 298-3539 [email protected] Florida Rafael Garcia +1 (305) 375-6237 [email protected] Houston Maria Collman +1 (713) 356-5091 [email protected] Lake Erie Mike Tomera +1 (412) 355-6095 [email protected] Mark Wilmot US National Tax Accounting Services Director [email protected] Krystle Rodrigues National Practice Tax Director [email protected] Michigan Luke Cherveny +1 (313) 394-6767 [email protected] Minneapolis Chad Berge +1 (612) 596-4471 [email protected] Missouri Brian Sprick +1 (314) 206-8509 [email protected] Northeast David Wiseman +1 (617) 530-7274 [email protected] New York Metro Allen AhKao +1 (973) 236-5730 [email protected] New York Metro (Financial Services) Gayle Kraden +1 (646) 471-3263 [email protected] New York Metro (Private Company Services) Gary Pogharian +1 (973) 236-5696 [email protected] Christina Lai +1 (646) 471-5536 [email protected] Important links New York Metro (Banking and Capital Markets) Let’s talk Ohio, Kentucky, Indiana Dan Staley +1 (513) 723-4727 [email protected] Pacific Northwest Suzanne Greer +1 (206) 398-3339 [email protected] Philadelphia Diane Place +1 (267) 330-6205 [email protected] Rockies Mike Manwaring +1 (720) 931-7411 North Texas Steve Schoonmaker +1 (512) 708–5492 [email protected] Washington Metro Jamie Grow +1 (703) 918–3458 [email protected] Back Next Introduction Standard setting update PCAOB update Global tax law developments European Union – State aid SEC comment letters Valuation allowance assessment Indefinite reinvestment Acquisition accounting Disclosures John Schmitt US National Tax Accounting Services Director [email protected] Kyle Quigley National Practice Tax Director [email protected] [email protected] 13 www.pwc.com © 2015 PwC. 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