US tax writing committees question section 385 rules - KPMG United States
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Tax-writing committees to question Treasury officials, section 385 proposed regulations

U.S. legislators' concerns, section 385 regulations

Senate Finance Committee Chairman Orrin Hatch (R-UT) and Ways and Means Chairman Kevin Brady (R-TX) announced that the Joint Committee on Taxation (JCT) on July 6, 2016, will hold a “briefing and discussion of issues related to” the proposed regulations under section 385.


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The purpose of the JCT meeting, which is open to all members of the Senate Finance and House Ways and Means committees, is to afford committee members an opportunity to address questions to Mark Mazur, Assistant Secretary of the Treasury for Tax Policy, and Robert Stack, Deputy Assistant Secretary for International Tax Affairs.

In a prepared statement, Chairmen Hatch and Brady indicated:


Members on both sides of the aisle have expressed concerns regarding the Treasury Department’s proposed regulations and their impact on our economy. This bipartisan, bicameral meeting will provide an opportunity for members and the administration to discuss this topic and focus on what the regulations could mean for American businesses here at home.

Finance Committee Republican members express concerns, section 385 proposed regulations

In a related matter, seven Republican members of the Senate Finance Committee sent a letter to Treasury Secretary Lew on July 1, 2016, indicating that the Senators are “deeply concerned” with the proposed section 385 regulations.  Particularly, the senators asked the Secretary to: (1) extend the July 7, 2016 comment deadline to “at least” October 5, 2016; (2) consider comments and feedback received during the comment period; and (3) change the effective date for the rules so that they would apply to debt instruments issued, or deemed issued, no sooner than 90 days after the date the regulations are finalized.  The letter expresses the belief of the senators that “finalizing these regulations will create new disincentives to investment in the United States and threaten to further exacerbate our current economic woes” and that the regulations “represent a fundamental shift in how debt and equity are characterized….”

The letter asked that “at the very least” the following reforms be made to the regulations prior to finalization:

  • Ensure that S corporations do not lose their S corporation tax status by virtue of having their debt re-characterized as equity and are not penalized for their domestic-to-domestic transactions
  • Ensure that non-tax motivated cash management techniques, such as cash pooling or revolving credit arrangements, are exempted
  • Exempt foreign-to-foreign transactions from the scope of the proposed regulations
  • Address the “cascading effect” of the currently drafted regulations, when a single tainted transaction funded with intercompany debt can create a multitude of additional tainted transactions
  • Extend the 30-day deadline for meeting the documentation requirements
  • Expand the $50 million intercompany debt threshold so that more small businesses will be exempt from these rules
  • Ensure the regulations take into account the global economic and regulatory environment in which regulated financial groups operate
  • Ensure that local interest deductions for U.S. multinational businesses are not eliminated under the OECD BEPS hybrid transaction concepts

The letter was signed by Senators Dean Heller (R-NV), Mike Crapo (R-ID), Pat Roberts (R-KS), John Cornyn (R-TX), Tim Scott (R-SC), John Thune (R-ND), and Johnny Isakson (R-GA). Senate Finance Committee Chairman Orrin Hatch (R-UT) was not a signatory.

Read text of the Republican Senate Finance Committee letter [PDF 1.2 MB]

This Republican Senate Finance Committee letter follows two other letters to Secretary Lew expressing concerns regarding the section 385 proposed regulations—letters previously sent by both Republican and Democratic members of the House Ways and Means Committee.  Read TaxNewsFlash-Legislative Update

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