Some taxpayers may be tempted, especially in situations involving related parties, to arbitrarily shift the source of income or allocation of deductions, in order to avoid or lessen taxes. Congress, however, enacted IRC Section 482 to give the IRS wide power to prevent such actions. This article will give a brief overview of some aspects of this complex area of U.S. tax system.
IRS Authority under IRC Section 482
In general, IRC Section 482 gives the IRS the ability to distribute, apportion, or allocate gross income, deductions, credits or allowances between certain organizations if they are controlled or owned by the same taxpayers, and it is determined that such action is necessary to prevent tax evasion, or to clearly reflect such organizations’ income. The IRS has broad authority under this section (and the definition of “control” is similarly interpreted broadly); taxpayers, on the other hand, are generally not able to use this section to reallocate income, deductions or other items on their own.
IRS authority under this section to make such determinations is generally granted whenever taxpayers report different income, deductions, or other related items than they would have had if the taxpayers made an arm’s-length transaction with organizations that were not controlled or owned by them. Various methods are available to the IRS to determine the proper arm’s-length price.
In the context of international taxation, one of the purposes of this section is to prevent taxpayers from improperly shifting income to controlled organizations in countries with lower tax rates (or conversely, transferring deductions to controlled organizations in high tax rate countries).
Penalties under IRC Section 482
Severe penalties may apply under IRC Section 482. IRC 6662(e)(1)(B) imposes transfer pricing penalties on any underpayment attributable to a “substantial valuation misstatement” pertaining to transfer pricing. There are two types of transfer pricing penalties under this particular provision: (A) the transactional penalty, which applies when the price reported for any property or services is 200% or more (or 50% or less) of the amount determined to be the proper price, and (B) the net adjustment penalty, which applies when the net IRC 482 adjustment (i.e. the reallocation of profit determined by the IRS) exceeds the lesser of $5 million or 10% of a taxpayer’s gross receipts. An accuracy-related penalty of 20% may be applied in such circumstances. Further, under IRC Section 6662(h), a 40% penalty for “gross misstatements” (as defined in the provision) may be applied.
Contact Sherayzen Law Office for Legal Advice on Business Transactions and Structure
The powers of the IRS under IRS Section 482 are broad and the penalties can be substantial. Therefore, it is important to contact a business tax attorney to plan the business transactions and business structure ahead of time, identifying the problem areas and accurately evaluating the risk of potential IRS actions.
This is why you should contact the experienced business tax firm of Sherayzen Law Office for legal help with analyzing your business structure and planning your business transactions.