Tomato Supplier Must Change Accounting Method

 

Let’s talk about when we can deduct something on a tax return.

We are talking about accrual accounting. Cash accounting would be easy: you are not allowed to deduct something until it is paid.

Not surprisingly, there is a Code section for this.

Code § 461 - General rule for taxable year of deduction

            (h) Certain liabilities not incurred before economic performance

(1) In general

 

For purposes of this title, in determining whether an amount has been incurred with respect to any item during any taxable year, the all events test shall not be treated as met any earlier than when economic performance with respect to such item occurs.

We see two key terms: the all-events test and economic performance.

First, a potential deduction must pass the all-events test before it can even think of landing on a tax return.

Second, that potential deduction must next pass a second test – economic performance – before it is allowed as a deduction.

Let’s spend time today on the first hurdle: the all-events test.     

Back to the Code:

            All events test

For purposes of this subsection, the all events test is met with respect to any item if all events have occurred which determine the fact of liability and the amount of such liability can be determined with reasonable accuracy.

There are two prongs there:

·       The fact  

·       The amount  

Much of the literature in this area concerns economic performance, which is the next test after the above two are met. One might presume that the all- events test is a low bar, and that an expense accrued under GAAP for financial reporting purposes would almost automatically meet the all-events test for tax reporting purposes.

You would be surprised how often this is not true, and tax accounting will not give the same answer as financial reporting accounting.

I was reviewing a case this past week. It comes from the Court of Appeals for the Ninth Circuit, a circuit which includes California.

Morning Star Packing Company and Liberty Packing Company appealed their Tax Court decisions. Both are based in California, and – combined – they supply approximately 40% of the U.S.’s tomato pastes and diced tomatoes. 

Tomato season in California lasts approximately 100 days – from June to September. During this period Morning Star runs its production facilities at maximum capacity 24 hours a day. When the season ends in October, the equipment has been traumatized and needs extensive reconditioning before going into production again. For assorted reasons, Morning Star normally waits near the start of the following season before doing such reconditioning.

Let’s assign dates so we can understand the tax issue.

Say that the frenetic 100-day production activity occurred in 2022.

Morning Star will recondition the equipment before the start of the next production cycle – that is, in 2023.

Reconditioning costs are substantial and can be north of $20 million.

Morning Star deducts the anticipated reconditioning costs to be incurred in 2023 on its 2022 tax return.

What do you think? Can Morning Star clear the all-events test?

Here is the taxpayer:

·       Our customers generally require that the tomato products meet certain quality and sanitary standards. Many customers require independent testing. The facilities are also inspected by the U.S. Department of Agriculture, the Food and Drug Administration and the California Department of Public Health.

·       An obligation to refurbish the equipment is strongly implied by the need to meet governmental regulations.

o   Failure to meet such standards could result in the company being required to pay farmers for spoiled tomatoes and/or paying customers for failure to provide tomato products. Any such payments could be catastrophic to the company.

·       The company has credit agreements with several banks. These agreements include numerous covenants such as the following:

o   Each borrower and its respective Subsidiaries shall (i) maintain all material licenses, Permits, governmental approvals, rights, privileges, and franchises reasonably necessary for the conduct of its business ….

o   Each borrower and its respective Subsidiaries shall … conduct its business activities in compliance with all laws and material contractual obligations applicable ….

o   Each borrower and its respective Subsidiaries shall …keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted….

·       An obligation to refurbish the equipment can be inferred from the “all property useful and necessary in its business in good working order” covenant.

Here is the IRS:

·       The credit agreements do not specifically fix the company’s obligation.

o   The agreements do not specify which laws or regulations must be complied with.

o   The agreements do not specify which property must be kept in good working order.

o   The term “wear and tear” refers to ordinary use; “ordinary” wear and tear is excepted; the agreements therefore do not require the company to refurbish its equipment because it would meet the “ordinary wear and tear” exception.

·       The customer agreements are production specific and do not directly require reconditioning costs. Granted, failure to perform could be financially catastrophic, which implies a high degree of certainty that reconditioning will occur, but a high likelihood is different from a certain obligation.

Both the Tax Court and the Appeals Court agreed with the IRS.

I am divided.

I believe that the IRS is technically correct. There was no explicit obligation, requirement, or guarantee that Morning Star will recondition its facilities before the start of the next season’s production run. I however consider that a false flag. Economic and business reality assures me that it will recondition, because a failure to do so could invite business and financial ruin. Would the USDA or FDA even allow them to start next year’s production run without reconditioning?

Decisions like this unfortunately pull tax practice closer to a wizard’s incantation. The practitioner must be certain to include the magic words, intonating appropriately at proper moments to evoke the intervention of unseen eldritch forces. Fail to include, intone, or evoke correctly and lose the spell – or tax deduction.

Here is Judge Bumatay’s dissent:

The Internal Revenue Service (“IRS”) has a shocking view of taxpayer’s money. According to the IRS’ counsel at oral argument, any disagreement on when a tax payment is due constitutes ‘an interest-free loan from the government' to the taxpayer. That’s completely wrong. Simply, the income of everyday Americans is not government property.”

In fact, Morning Star has used this method since its founding. And the IRS had endorsed this practice – it audited Morning Star in the early 1990s and concluded that this practice was acceptable. But now, after Morning Star’s deductions for years, the IRS changes its mind and demands that Morning Star alter how it recognizes the reconditioning costs.”

Morning Star’s liability was fixed at the end of each season’s production run.”

… the law does not require the taxpayer to prove the fixed obligation to a metaphysical certitude.”

You go, Judge B.

I am not impressed that the IRS previously looked at the accounting method, found it acceptable and now wants to change its mind. That is not the way it works in professional practice, folks. The CPA cannot be reviewing every possible accounting issue de novo every year.

And I am less than impressed that an IRS representative argued that the change was necessary because the government was assuming the risk that the company would not be able to pay its taxes should it encounter a bad harvest or other financial malady.

Seriously? The owners of Morning Star face multiple business dangers every day and the government is “assuming the risk?” We cannot DOGE these people and bureaucracies soon enough.

But then again, Morning Star could have boosted its case with a minor change to its credit agreements. How? Include annual reconditioning as a requirement to retain its credit facility. If Morning Star is going to recondition anyway, making it a requirement might be the magical incantation we need.

Our case this time is Morning Star Packing Company L.P., 9^th Circuit, No. 21-71191.

A Penalty Against A Tax Preparer

 

Did you know that the IRS can assess penalties against a tax preparer as well as a taxpayer?

I am looking at an IRS Chief Counsel Memorandum recommending a preparer be penalized for a deduction on a client return.

You do not see that every day.

Let’s talk about it.

As is our way, we will streamline the issue so that it is something you might want to read and something I might want to write.

A taxpayer accrued expenses on its books for customer early payment discounts and estimated write-offs for disputed billing and shipping charges.

Sure, easy for a CPA to say.

Let’s clarify. The company sold stuff. It allowed discounts if a customer paid early. It also had routine billing disputes – for quantity, quality, price, damage and so on. As part of its general accounting, it estimated these charges and recorded them as expenses when the related sale was recorded.

Makes sense to me. Generally accepted accounting wants one to record all related expenses when the sale is recorded. This is called the “timing principle,” and the idea is to present net profit from a sales transaction as well as reasonably possible. What if all the expenses are not known at that precise moment - say, for example - the amount of product that will be returned because of damage in shipping? Generally accepted accounting will allow one to estimate that number, normally by statistical analysis of historical experience.

BTW you better do this if you expect to have your financial statements audited. Part of an audit is a review of your accounting method, and the “estimate that number” described above is considered a best-of-breed.

Generally accepted accounting might not work when you get to your tax return, however. Why? Well, generally accepted accounting is trying to get to the “best” number in an economic sense. Tax accounting is not trying to get to the “best” number; rather, it is trying to measure your ability to pay. Pay what? Taxes, of course.

Let’s go back to our taxpayer. They estimated a bunch of expenses when they recorded a sale. They included those numbers on their financial statements. They then wanted to deduct those same numbers on their tax return.

Problem:

The taxpayer utilized statistics to record the expenses for the two items. The courts held that statistics were not a valid method to record the amounts.”

Their CPA firm had to review the accounting method and decide whether it was acceptable for tax purposes.

There is even a Code section and Regulations:

           Reg § 1.461-1. General rules for taxable year of deduction

(a)(2) Taxpayer using an accrual method.

(i) In general. Under an accrual method of accounting, a liability (as defined in §1.446-1(c)(1)(ii)(B)) is incurred, and generally is taken into account for Federal income tax purposes, in the taxable year in which all the events have occurred that establish the fact of the liability, the amount of the liability can be determined with reasonable accuracy, and economic performance has occurred with respect to the liability. 

 

You see that last sentence and its reference to “economic performance?”

 

For generally accepted accounting, one must:

        

·      Establish the fact of the liability.

·      Measure the amount of the liability with reasonable accuracy.

 

Tax then adds one more requirement:

        

·      Economic performance on the liability must have occurred.

 

That third requirement is what slows down the tax deduction.

 

What is an example of economic performance?

 

Say that you record expenses for services related to the sale. Economic performance wants to see those services performed before allowing the deduction. What if you know - because it has happened millions of times before and can be calculated with near-arithmetic certainty – that the services will occur? Tax doesn’t care.  

 

But the auditors signed-off on the financial statements, you say. Doesn’t that mean that experts agreed that the accounting method was valid?      

A taxpayer’s conformity with its accrual method used for financial accounting purposes does not create a presumption that its tax accrual method clearly reflects income.”

And there you have a brief introduction to why a company’s financial statements and its tax return might show different numbers. Financial statement accounting and tax accounting serve different purposes, and those differences have real-world consequences.

 

In this situation, I side with the IRS. Work in a CPA firm for any meaningful period and you will see tax people repetitively “tweak” the audit people’s numbers. It happens so often it has a term: “M-1.” Schedule M-1 is a tax schedule that reconciles the profit per the financial statements to the profit per the tax return. The possible list of differences is near endless:

 

·      Entertainment

·      Depreciation

·      Allowance for uncollectible receivables

·      Accrued bonuses

·      Reserve for warranties

·      Deferred rent

·      Controlled foreign corporation income

·      Opportunity zone income

 

And on and on. Knowing these differences is part of being a tax pro.

 

The Chief Counsel wanted to know why the tax pros at this particular CPA firm did not know that this generally accepted accounting method would not work for purposes of the tax return.

 

To be fair, methinks, because it is complicated …?

 

No dice, said the Counsel’s office. The preparer should have known.

 

The items deducted constituted a substantial part of the return. 

TRANSLATION: It was a big deduction.

And therefore the preparer penalty is appropriate.  

TRANSLATION: Someone has to pay.

Mind you, a Chief Counsel memorandum is internal to the IRS. The taxpayer – and by extension, its CPA firm – might appeal the matter to the Tax Court. I would expect them to, frankly. The memorandum is just the IRS’ side.

For the home gamers, today we have been discussing Chief Counsel Memorandum 20223301F.

 

When Does A Grocery Store Get To Deduct the Fuel Points You Receive?

There is a grocery store chain that my wife uses on a regular basis. They have a gasoline-discount program, whereby amounts spent on purchasing groceries go toward price discounts on the purchase of gasoline. As the gas stations are adjacent to the grocery store, it is a convenient perk.

I admit I used the discount all the time. I purchased a luxury car this year, however, and my mechanic has advised me not to use their gasoline. It sounds a bit over the top, but until I learn otherwise I am purchasing gasoline elsewhere. My wife however continues as a regular customer.

Giant Eagle is a grocery store chain headquartered out of Pittsburgh. They have locations In Pennsylvania, Ohio, West Virginia and Maryland. They have a similar fuel perk program, except that their gasoline station is called “GetGo” and their fuel points are called “fuelperks!”

Their fuelperks! operate a bit differently, though. The perks expire after three months, and they reduce the price of the fuel to the extent possible. I suppose it is possible that they could reduce the price to zero. My fuel points reduce the price of a gallon by 10-cent increments, up to a ceiling. I am not going to get to zero.

Giant Eagle found itself in Tax Court over its 2006 and 2007 tax returns. The IRS was questioning a deduction on its consolidated tax return: the accrued liability for those fuelperks! at year-end. The liabilities were formidable, amounting to $6.1 million and $1.1 million for 2006 and 2007, respectively. Multiply that by a corporate tax rate of 34% and there are real dollars at stake.

What are they arguing over?

To answer that, let’s step back for a moment and talk about methods of accounting. There are two broad overall methods: the cash method and the accrual method. The cash method is easy to understand: one has income upon receiving money and has deductions upon spending money. There are tweaks for uncashed checks, credit cards and so forth, but the concept is intuitive.

The accrual method is not based on receiving or disbursing cash at all. Rather, one has income when monies are due from sale of product or for performance of services. That is, one has income when one has a “receivable” from a customer or client. Conversely one has a deduction when one owes someone for the provision of product or services. That is, one has a “payable” to a vendor, government agency or employee.

If one has inventories, one has to use the accrual method for tax purposes. Take a grocery store – which is nothing but inventory – and Giant Eagle is filing an accrual-basis tax return. There is no choice on that one.

There are additional and restrictive tax rules that are placed on “payables” before one is allowed to deduct them on a tax return. These are the “all events” rules, are found in IRC Section 461(h), and have three parts:

·        Liability must be fixed as of year end

·        Liability must be determined with reasonable accuracy

·        Economic performance must occur

Why all this?

Congress was concerned that accrual taxpayers could “make up” deductions willy-nilly absent more stringent rules. For example, a grocery store could argue that its coolers were continuously wearing out, so a deduction for a “reserve” to replace the coolers would be appropriate. Take the concept, multiply it by endless fact patterns and – unfortunately – Congress was probably right.

All parties would agree that Giant Eagle has a liability at year-end for those fuel points. Rest assured that the financials statement auditors are not have any qualms about showing the liability. The question becomes: does that liability on the financial statements rise to the level of a deduction on the tax return?

You ever wonder what people are talking about when they refer to a company’s financial statements and tax return and say that there are “two sets of books?” Here is but a small example of how that happens, and it happens because Congress made it happen. There are almost endless examples throughout the tax Code.

The IRS is adamant that Giant Eagle has not met the first requirement: the “liability must be fixed.”

To a non-tax person, that must sound like lunacy. Giant Eagle has tens of thousands of customers throughout multiple states, racking up tons of fuel discount points for the purchase of gasoline at – how convenient – gasoline stations right next to the store. What does the IRS think that people are going to do with those points? Put them on eBay? If that isn’t a liability then the pope is not Catholic.

But consider this…

The points expire after three months. There is no guarantee that they are going to be used.

OK, you say, but that does not mean that there isn’t a liability. It just means that we are discussing how much the liability is. The existence of the liability is given.

COMMENT: Say, you have potential as a tax person, you know that?

That is not what the IRS was arguing. Instead they were arguing that the liability was not “fixed,” meaning that all the facts to establish the liability were not in.

How could all the facts not be in? The auditors are going to put a liability on the year-end audited financial statements. What more do you want?

The IRS reminds you that it refuses to be bound by financial statement generally-accepted-accounting-principles accounting. Its mission is to raise and collect money, not necessarily to measure things the way the SEC would require in a set of audited financial statements in order for you not to go to jail. In fact, if you were to release financial statements using IRS-approved accounting you would probably have serious issues with the SEC.

OK, IRS, what “fact” is missing?

The customer has to return. To the gasoline station. And buy gasoline. And enough gasoline to zero-out the fuel points. Until then all the facts are not in.

Another way of saying it is that there is a condition precedent to the redemption of the fuel points: the purchase of gasoline. Test (1) of Sec 469(h) does not allow for any conditions subsequent to the liability in order to claim the tax deduction, and unfortunately Giant Eagle has a condition subsequent. No deduction for you!

Mind you the deduction is not lost forever. It is delayed until the following year, because (surely) by the following year all the facts are in to establish the liability. The effect is to put a one-year delay on the liability: in 2008 Giant Eagle would deduct the 12/31/2007 liability; in 2009 it would deduct the 12/31/2008 liability, and so on.

And the government gets its money a year early. It is a payday-lender mentality, but there you are.

BTW test (1) is not even the difficult part of Section 469(h). That honor is reserved for test (3): the economic performance test. Some day we will talk about it, but not today. That one does get bizarre.