LB&I Directive for TPs who adopted a Method of Accounting Relating to the Conversion of Capitalized Assets to Repair Expense under I.R.C. § 263(a)
Modified by March 22, 2013 Directive titled UPDATED LB&I DIRECTIVE for Taxpayers Who Adopted a Method of Accounting Relating to the Conversion of Capitalized Assets to Repair Expense under I.R.C. Section 263(a)
LB&I Control No: LB&I-4-0312-004
Impacted IRM 4.51.5
March 15, 2012
|MEMORANDUM FOR||INDUSTRY DIRECTORS
DIRECTOR, FIELD SPECIALISTS
DIRECTOR, INTERNATIONAL BUSINESS COMPLIANCE
|FROM:||Heather C. Maloy /s/ Heather C. Maloy
Commissioner, Large Business & International Division
|SUBJECT:||Large Business & International Directive for Taxpayers who adopted a Method of Accounting Relating to the Conversion of Capitalized Assets to Repair Expense under I.R.C. Section 263(a)|
This memorandum provides direction to the field in examinations of the repair versus capitalization issue.
On December 23, 2011, the Service issued temporary regulations provided in T.D. 9564 to clarify and expand the standards in the current regulations under sections 162(a) and 263(a), and provide some bright-line tests (for example, a de minimis rule for certain acquisitions) for applying these standards. The temporary regulations affect all taxpayers that acquire, produce, or improve tangible property, and are effective for taxable years (or costs incurred in taxable years, as appropriate) beginning on or after January 1, 2012. The temporary regulations also amend the general asset account regulations and provide guidance regarding the accounting for, and dispositions of, property subject to section 168.
The Service has issued two companion revenue procedures by which a taxpayer may obtain the automatic consent of the Commissioner of Internal Revenue to change to certain methods of accounting provided in the temporary regulations.
Revenue Procedure 2012-19 provides the procedures for requesting a change for the following methods of accounting addressed in the temporary regulations:
• Materials and supplies (§§ 1.162-3T & 4T);
• Capital expenditures in general (§ 1.263(a)-1T);
• Transaction costs (§ 1.263(a)-2T); and
• Improvements (§ 1.263(a)-3T).
Revenue Procedure 2012-20 provides the procedures for requesting a change for the following methods of accounting addressed in the temporary regulations:
• Leased property (§ 1.167(a)-4T);
• General asset accounts (§ 1.168(i)-1T);
• MACRS property (§ 1.168(i)-7T); and
• Dispositions of MACRS property (§ 1.168(i)-8T).
Both Rev. Proc. 2012-19 and Rev. Proc. 2012-20 (applicable guidance) waive the scope limitations of Rev. Proc. 2011-14, Section 4.02, for a request to change a method of accounting, which normally apply to a taxpayer under examination, for the taxpayer's first or second taxable year beginning after December 31, 2011 (hereinafter, “Waiver Period”).
Scope of this Directive
This directive applies to the exam activity relating to positions taken on original returns relating to the following issues (hereinafter “Issues”). 
1. Whether costs incurred to maintain, replace, or improve tangible property must be capitalized under section 263(a), (see, e.g., Rev. Proc. 2011-14, Appendix section 3.06, Repair and maintenance costs (designated change number 144)); and,
2. Any correlative Issues involving the disposition of structural components of a building or dispositions of tangible depreciable assets (other than a building or its structural components), (see, e.g., Rev. Proc. 2011-14, Appendix sections 6.24 and 6.25 (designated change number 146 and 147, respectively)).
This directive does not apply to current examination activity relating to (1) costs for which the IRS provides specific guidance, separate from the temporary regulations, for determining whether expenditures incurred to maintain, replace or improve tangible property must be capitalized under section 263(a), or (2) issues that do not pertain to whether costs incurred to maintain, replace, or improve tangible property must be capitalized under section 263(a). See, for example:
• Rev. Proc. 2001-46 and Rev. Proc. 2002-65, Track maintenance allowance for certain railroads;
• Rev. Proc. 2011-14, Appendix section 3.07, Wireline network asset maintenance allowance and units of property methods of accounting under Rev. Proc. 2011-27 (designated change number 158);
• Rev. Proc. 2011-14, Appendix section 3.08, Wireless network asset maintenance allowance and units of property methods of accounting under Rev. Proc. 2011-28 (designated change number 159);
• Rev. Proc. 2011-14, Appendix section 3.09, Method of accounting under Rev. Proc. 2011-43 for taxpayers in the business of transporting, delivering, or selling electricity (designated change number 160); or,
• Rev. Proc. 2011-14, Appendix section 6.01, A change from an impermissible to a permissible method of accounting for depreciation or amortization (depreciation) (designated change number 7); or,
• Rev. Proc. 2011-14, Appendix section 3.05, Materials and Supplies (designated change number 143).
Examination of Tax Years Beginning Before January 1, 2012
1. You should discontinue current exam activity with regard to the Issues;
2. You should not begin any new exam activity with regard to the Issues;
3. If, however, a Taxpayer files a Form 3115 with regard to the Issues on or after December 23, 2011 (the date the temporary regulations were issued) for a tax year not covered by the temporary regulations, you should risk assess the Form 3115 and determine, in consultation with the Change in Accounting Method Issue Practice Group, whether to examine the Form 3115;
4. You should take the following steps to discontinue the exam activity with regard to the Issues:
a) Withdraw Forms 4564, Information Document Request, or portions thereof, relating to the development of this issue for amounts paid to maintain, replace, or improve tangible property, and any correlative Issues involving the disposition of associated assets.
b) Withdraw all Forms 5701, Notice of Proposed Adjustment, which propose an adjustment to repair expenses related to whether costs incurred to maintain, replace, or improve tangible property must be capitalized under section 263(a), and any correlative adjustments involving the disposition of associated assets.
c) Develop and issue a Form 5701 with a Form 886-A, Explanation of Adjustments, containing the following language:
i. The Service neither accepts nor rejects the position taken in the tax return related to the method to determine the proper treatment of amounts incurred to repair tangible property. [Insert taxpayer name] will be allowed a two-year period to adopt the appropriate method of accounting provided in Rev. Proc. 2012-19 and 2012-20. If an appropriate method is adopted, a change in method of accounting can be made in accordance with Section 4 or 5 of the applicable revenue procedure for all assets. If [Insert taxpayer name] has not changed its accounting method consistent with Revenue Procedures 2012-19 and 2012-20 in its first or second taxable year beginning after December 31, 2011, then the repair expense will be subject to risk assessment and possible examination for tax years ending on or after January 1, 2012.
d) After the taxpayer has signed the Form 5701 with the 886A, Explanation of Adjustments, upload the documents into the Information Management System (IMS) to substantiate for the subsequent examination team that the taxpayer was notified that Service has discontinued examination of the issue. Input into IMS as follows: UIL 263.14-01, and Issue Tracking Attribute Code 1400.
e) Retain copies of pertinent workpapers in the IMS file or other central location permitted by IRM 126.96.36.199.3(3)(c)&(d).
f) Complete the Form 5346, Examination Information Report, in accordance with the specific instructions provided for this issue located on the Deductible and Capital Expenditures Issue Practice Group (DCE IPG) website.
Examination for Tax Years Beginning on or after January 1, 2012 but before January 1, 2014
When you begin examining a return for a taxable year beginning on or after January 1, 2012 but before January 1, 2014, you should determine:
1. If the taxpayer filed a Form 3115, Application for Change in Accounting Method, in accordance with the applicable guidance;
2. If yes, perform a risk assessment regarding the method change;
3. If no, and the Waiver Period to file such change is still open, do not examine the Issues. Allow the taxpayer the appropriate time period to file a method change;
4. If no, and the Waiver Period to file such change has passed, perform a risk assessment regarding the Issues.
Examination for Tax Years Beginning on or after January 1, 2014
You should apply the regulations in effect and follow normal exam procedures.
Section 481(a) Adjustment
When performing a risk assessment of the section 481(a) adjustment for the Issues, you should:
1. Consider if the adjustment properly accounts for amounts paid to acquire, produce, or improve tangible property that were computed under the taxpayer's prior method and previously deducted under section 162;
2. Determine if the section 481(a) adjustment(s) resulting from any prior year change was taken into account; and
3. Consider the accuracy of the section 481(a) adjustment.
For further guidance regarding this directive, please contact a member of the LB&I Issue Practice Groups for Deductible and Capital Expenditure or the Change in Accounting Method.
This Directive is not an official pronouncement of law, and cannot be used, cited, or relied upon as such.
cc: Deputy Commissioner, Operations
Deputy Commissioner, International
Division Counsel, LB&I
Directors, Field Operations
 For guidance on claims or amended returns you should consult with the Deductible and Capital Expenditures Issue Practice Group