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The Section 6662(e) Substantial and Gross Valuation ...

1 The Section 6662(e) Substantial and Gross Valuation Misstatement Penalty A Presentation and Tutorial Guide of the Code and Regulations What Is the Transfer Pricing Penalty? Though we generally refer to a penalty arising from an ' 482 adjustment as a transfer pricing or as an ' 6662(e) penalty, its real name is the Substantial and Gross Valuation misstatement penalty, under ' ' 6662(a), (e) and (h). ' 6662 contains the provisions for the imposition of accuracy-related penalties. '' 6662(b)(3) and 6662(e) describe the Substantial Valuation misstatement penalties. ' 6662(e)(1)(B) provides that certain adjustments made under ' 482 are subject to accuracy-related penalties. ' 6662(a) imposes a 20% addition-to-tax penalty on the portion of the underpayment of tax attributable to the accuracy-related penalties. ' 6662(h) increases the accuracy-related penalty to 40% under certain circumstances, including Gross valuations misstatements, which include some adjustments made under ' 482.

Service determines that the price per Widget should have been $13. The Service=s allocation and adjustment increases USCO=s net income by $24 million. Is there a transfer pricing penalty pursuant to I.R.C. ' 6662(e)? Yes, the net adjustments pursuant to I.R.C. ' 482 are greater than $5 million, therefore the net adjustment penalty applies.

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Transcription of The Section 6662(e) Substantial and Gross Valuation ...

1 1 The Section 6662(e) Substantial and Gross Valuation Misstatement Penalty A Presentation and Tutorial Guide of the Code and Regulations What Is the Transfer Pricing Penalty? Though we generally refer to a penalty arising from an ' 482 adjustment as a transfer pricing or as an ' 6662(e) penalty, its real name is the Substantial and Gross Valuation misstatement penalty, under ' ' 6662(a), (e) and (h). ' 6662 contains the provisions for the imposition of accuracy-related penalties. '' 6662(b)(3) and 6662(e) describe the Substantial Valuation misstatement penalties. ' 6662(e)(1)(B) provides that certain adjustments made under ' 482 are subject to accuracy-related penalties. ' 6662(a) imposes a 20% addition-to-tax penalty on the portion of the underpayment of tax attributable to the accuracy-related penalties. ' 6662(h) increases the accuracy-related penalty to 40% under certain circumstances, including Gross valuations misstatements, which include some adjustments made under ' 482.

2 When Does the Transfer Pricing Penalty Apply? The penalties described in ' 6662(e) apply whenever there is an underpayment of tax attributable to a Valuation misstatement, subject to certain thresholds. In any year, no penalty is imposed under these rules unless the underpayment of tax attributable to all Valuation misstatements exceeds a dollar limitation of $5,000 in the case of an individual, S corporation and personal holding companies (as defined by ' 542) or $10,000 in the case of a corporation. ' 6662(e)(2). This dollar limitation must be met for each year in which the penalty will be asserted, including carryback and carryover years of any Valuation misstatements. Treas. Reg. ' (b). The ' 6662(e)(1)(B) and (h) penalty provisions are applicable to any tax year ending after November 5, 1990. Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, Title XI, sec. 11312, 104 Stat.

3 1388 (1990). The documentation requirements that we will discuss later are only applicable to tax years beginning after December 31, 1993. Also note, the thresholds changed for 1994. 2 How Is the Transfer Pricing Penalty Applied? There are two ways for a Substantial or Gross Valuation misstatement penalty to attach to ' 482 adjustments. 1. Transactional Penalty is described in ' 6662(e)(1)(B)(i) and Treas. Reg. ' (b). This penalty is raised when the Service determines under ' 482 that the price for any property or services claimed on the return is 200% more or 50% less than the correct price. 2. Net-adjustment Penalty is described in ' 6662(e)(1)(B)(ii) and Treas. Reg. ' (c). This penalty is raised when the Service determines that the net of adjustments made under ' 482 exceeds the lesser of $5 million or 10% of taxpayer Gross receipts for the taxable year. What Makes The Penalties Gross ?

4 ' 6662(h) substitutes language in ' 6662(e) for both the transactional and net adjustment penalty. In the case of the transactional penalty, the penalty rate is increased to 40% when the price for any property or services claimed on the return is 400% more or 25% less than the correct price. In the case of a net adjustment penalty, the penalty is increased to 40% when the net of adjustments made under ' 482 exceeds the lesser of $20 million or 20% of the taxpayer=s Gross receipts for the taxable year. $ Determining the transfer pricing penalty $ How do you know when a transfer pricing penalty may apply? $ How do the transfer pricing penalties interact with other penalties? $ How do you calculate the actual penalty amount? $ How do you know when a transfer pricing penalty may apply? Begin with the adjustments made pursuant to ' 482. 3 Let=s examine a few different scenarios. In these scenarios, we will examine when a penalty may apply.

5 Later, we will go through all the steps of calculating the actual penalty amount. Also, keep in mind that right now we are looking at what type of adjustments meet the initial thresholds of ' 6662(e). Later we will see that some of these adjustments may be excluded from the penalty computation based upon compliance with the reasonable cause and good faith exception and the contemporaneous transfer pricing documentation requirements. Example: USCO manufactures Widgets and transfers them to CFCs worldwide. USCO=s COGS is $6. USCO reported income based upon a transfer price of $10 for each Widget, or $4 of Gross profit per Widget sold. CASE 1: USCO sold 1 million Widgets and reported $4 million of net income. The Service determines that the price per Widget should have been $13. The Service=s allocation and adjustment increases USCO=s net income by $3 million. *Note: For all examples, assume USCO has Substantial Gross receipts and that the 10% and 20% Gross receipts tests for the net adjustment penalty under 6662(e) & (h) are NOT satisfied.

6 Is there a transfer pricing penalty pursuant to ' 6662(e)? No, the adjustment does not meet the requirements of either the transactional penalty or the net adjustment penalty. Example: USCO manufactures Widgets and transfers them to CFCs worldwide. USCO=s COGS is $6. USCO reported income based upon a transfer price of $10 for each Widget, or $4 of Gross profit per Widget sold. CASE 2: USCO sold 25,000 Widgets and reported $100,000 of net income. The Service determines that the price per Widget should have been $21. The Service=s allocation and adjustment increases USCO=s net income by $275,000. Is there a transfer pricing penalty pursuant to ' 6662(e)? Yes, a 20% transactional penalty applies because the adjustment reflects that the correct price under ' 482 is greater than 200% of the amount USCO claimed on its return. The net adjustment penalty does not apply in this case, as the adjustment is less than $5 million.

7 4 Example: USCO manufactures Widgets and transfers them to CFCs worldwide. USCO=s COGS is $6. USCO reported income based upon a transfer price of $10 for each Widget, or $4 of Gross profit per Widget sold. CASE 3: USCO sold million Widgets and reported $ million of net income. The Service determines that the price per Widget should have been $13. The Service=s allocation and adjustment increases USCO=s net income by $ million. Is there a transfer pricing penalty pursuant to ' 6662(e)? Yes, the net adjustments pursuant to ' 482 are greater than $5 million, therefore a 20% penalty is added to the additional tax due. Note, in this example, the transactional based penalty thresholds were not met; the price discrepancy was small, it was the volume of the transactions that warranted the application of a 20% net adjustment penalty. Example: USCO manufactures Widgets and transfers them to CFCs worldwide.

8 USCO=s COGS is $6. USCO reported income based upon a transfer price of $10 for each Widget, or $4 of Gross profit per Widget sold. CASE 4: USCO sold million Widgets and reported $ million of net income. The Service determines that the price per Widget should have been $21. The Service=s allocation and adjustment increases USCO=s net income by $ million. Is there a transfer pricing penalty pursuant to ' 6662(e)? Yes, in this case the thresholds for both the transactional penalty and net adjustment penalty are both met at the 20% penalty rate. Note, that there are not two applications of the penalty. As we will see later, there is an advantage to characterizing any underpayment of tax from this adjustment under the net adjustment penalty because there are higher standards to be excepted from penalty application under the reasonable cause and good faith exception requirements of ' 6664(c).

9 Example: USCO manufactures Widgets and transfers them to CFCs worldwide. USCO=s COGS is $6. USCO reported income based upon a transfer price of $10 for each Widget, or $4 of Gross profit per Widget sold. 5 CASE 5: USCO sold 200,000 HITEC Widgets, which includes valuable proprietary technology protected under several patents. USCO reported $800,000 of net income from the transactions. The Service determines that the price per HITEC Widget should have been $41. The Service=s allocation and adjustment increases USCO=s net income by $ million. Is there a transfer pricing penalty pursuant to ' 6662(e)? Yes, in this case the thresholds for both the transactional penalty and net adjustment penalty are met. Furthermore, under the transactional penalty the Service=s determination of the correct price was 410% of the price USCO claimed on its return. pursuant to ' 6662(h), the transactional penalty is increased to 40% of the underpayment of tax attributable to this Valuation misstatement.

10 The net adjustment penalty applied because the net ' 482 adjustment is greater than $5 million, but it would be an alternative position to the transactional penalty in this case. Example: USCO manufactures Widgets and transfers them to CFCs worldwide. USCO=s COGS is $6. USCO reported income based upon a transfer price of $10 for each Widget, or $4 of Gross profit per Widget sold. CASE 6: USCO sold 8 million Widgets and reported $32 million of net income. The Service determines that the price per Widget should have been $13. The Service=s allocation and adjustment increases USCO=s net income by $24 million. Is there a transfer pricing penalty pursuant to ' 6662(e)? Yes, the net adjustments pursuant to ' 482 are greater than $5 million, therefore the net adjustment penalty applies. ' 6662(h) increases the penalty rate from 20% to 40% in cases where the net ' 482 adjustments exceed $20 million.


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