Just before the extended filing deadline for 2019 partnerships and S corporations the IRS has finalized the proposed regulations issued in August of 2018 for bonus depreciation (TD 9874)[1]. Proposed regulations to implement the changes to bonus depreciation made by the Tax Cuts and Jobs Act have were originally released by the IRS in REG-104397-18.

At the same time the IRS issued more proposed regulations related to bonus depreciation (REG-106808-19)[2] that propose rules for property not eligible for bonus depreciation, a de minimis use rule for previously used property and rules related to components of larger property.

One provision found in the proposed regulations will be of special interest to organizations with floor plan interest and revenue of more than $25 million without an excess amount of interest (including floor plan interest). In that case, taxpayers may have claims for refund if they failed to claim bonus depreciation in certain cases.

The preamble to the original proposed regulations provided that taxpayers may rely upon the proposed regulations until final regulations are issued:

Pending the issuance of the final regulations, a taxpayer may choose to apply these proposed regulations to qualified property acquired and placed in service or planted or grafted, as applicable, after September 27, 2017, by the taxpayer during taxable years ending on or after September 28, 2017.

The 2019 additional proposed regulations provide a similar “taxyapers may rely” provision to allow use of the proposed rules pending their finalization:

Pending the issuance of final regulations, a taxpayer may choose to rely on these proposed regulations, in their entirety, to qualified property acquired and placed in service or planted or grafted, as applicable, after September 27, 2017, by the taxpayer during taxable years ending on or after September 28, 2017. Pending the issuance of final regulations, a taxpayer also may choose to rely on these proposed regulations, in their entirety, to components acquired or self-constructed after September 27, 2017, of larger self-constructed property for which the manufacture, construction, or production begins before September 28, 2017, and that is qualified property under section 168(k)(2) as in effect before the enactment of the Act and placed in service by the taxpayer during taxable years ending on or after September 28, 2017. If a taxpayer chooses to rely on these proposed regulations, the taxpayer must consistently apply all rules of these proposed regulations.[3]

Some of the key features of the final and second set of final regulations are discussed below.

Qualified Improvement Property Issues (the “Retail Glitch”)

One of the known drafting errors in the Tax Cuts and Job Act (often referred to as the “retail glitch”) involves the accidental treatment of qualified improvement property as 39-year property not eligible for bonus depreciation, despite the intent outlined in the Conference Committee Report for TCJA that these assets should be 15-year property eligible for bonus depreciation. The new category replaces the prior categories of qualified restaurant property, qualified retail property, and qualified leasehold improvement property.

The defining section provides:

(6) Qualified improvement property

(A) In general

The term “qualified improvement property” means any improvement to an interior portion of a building which is nonresidential real property if such improvement is placed in service after the date such building was first placed in service.

(B) Certain improvements not included

Such term shall not include any improvement for which the expenditure is attributable to—

(i) the enlargement of the building,

(ii) any elevator or escalator, or

(iii) the internal structural framework of the building.

The replaced categories did qualify as 15-year property and was eligible for bonus depreciation.

However, there is a difference in the date that 100% bonus depreciation became effective (assets placed in service after September 27, 2017) and when the new, unified “qualified improvement property” category replaced the older categories (property placed in service after December 31, 2017).

The final regulations thus provide a special rule for that interim period, found in Reg. 1.168(k)-2(a)(2)(i)(A). Property that falls into the older categories qualify for the 100% bonus if acquired during that period:

(A) MACRS property, as defined in § 1.168(b)-1(a)(2), that has a recovery period of 20 years or less. For purposes of this paragraph (b)(2)(i)(A) and section 168(k)(2)(A)(i)(I), the recovery period is determined in accordance with section 168(c) regardless of any election made by the taxpayer under section 168(g)(7). This paragraph (b)(2)(i)(A) includes the following MACRS property that is acquired by the taxpayer after September 27, 2017, and placed in service by the taxpayer after September 27, 2017, and before January 1, 2018:

(1) Qualified leasehold improvement property as defined in section 168(e)(6) as in effect on the day before amendment by section 13204(a)(1) of the Act;

(2) Qualified restaurant property, as defined in section 168(e)(7) as in effect on the day before amendment by section 13204(a)(1) of the Act, that is qualified improvement property as defined in § 1.168(b)-1(a)(5)(i)(C) and (a)(5)(ii); and

(3) Qualified retail improvement property as defined in section 168(e)(8) as in effect on the day before amendment by section 13204(a)(1) of the Act;

Absent action by Congress to change the law, the new combined and revised category will not qualify for bonus deprecation for assets acquired after December 31, 2017 and the cost will be recovered over a 39-year period.

In finalizing the regulations the IRS specifically refused to take action to treat such property as being qualified for bonus deprecation by regulatory action despite comments requesting that the IRS either provide for this treatment or state that they would not challenge such a position on a return. The IRS did not adopt these comments to give relief for qualified improvement property:

For property placed in service after December 31, 2017, section 13204 of the Act amended section 168(k) to eliminate qualified improvement property as a specific category of qualified property, and amended section 168(e) to eliminate the 15-year MACRS property classification for qualified leasehold improvement property, qualified restaurant property, and qualified retail improvement property. The legislative history of section 13204 of the Act provides that the MACRS recovery period is 15 years for qualified improvement property. Conf. Rep. No. 115-466, at 367 (2017). However, section 168(e), as amended by section 13204 of the Act, does not classify qualified improvement property as having a recovery period of 20 years or less. Consequently, a legislative change must be enacted to provide for a recovery period of 20 years or less for qualified improvement property placed in service after 2017 to be qualified property. Accordingly, the Treasury Department and the IRS decline to adopt these comments.[4]

Electing Real Property Trade and Business, Electing Farming Business and Businesses with Floor Plan Interest

Property required to be depreciated under the alternative depreciation system (ADS) of IRC §168(g) is not eligible for bonus depreciation, but generally allows taxpayers to claim bonus depreciation if they voluntarily elect to use ADS depreciation under IRC §168(g)(7). TCJA provides for two elections where certain real property and farming businesses may escape the limitations on deducting business interest, but to do so the business must make a permanent elect to depreciate certain property under ADS.

The regulations note that, despite a taxpayer voluntarily electing to subject the property to ADS depreciation in those two cases, IRC §168(k)(9) bars the use of bonus depreciation on the property from electing real property and farming businesses. The loss of bonus depreciation is the trade-off for not being subjected to the interest limit.

Although not an election, TCJA also barred businesses with qualified flooring plan interest (which is generally not subject to the interest limit) with average revenue of more than $25 million from taking advantage of bonus depreciation. However, note that the 2019 proposed regulations provide for a special test to determine if this rule applies to a taxpayer.[5]

The final regulations bar the use of bonus depreciation on property on affected businesses (subject to the new revision for floor plan interest found in the 2019 proposed regulations). [Reg. §1.168(k)-2(a)(2)(ii)]

However, the IRS issued several items of proposed additional guidance in this area in response to comments received in this area.

Property Leased to a §168(k)(9)(A) Businesses

The IRS noted that there was concerned expressed regarding whether the “taint” of a business disqualified from using bonus depreciation by being listed in §168(k)(9)(A) could carry over to a party leasing property to such a business.

Several commenters to the August Proposed Regulations requested guidance on whether a taxpayer that leases property to a trade or business described in section 168(k)(9) is eligible to claim the additional first year depreciation for the property, and they recommend allowing the additional first year depreciation deduction (assuming all other requirements are met). The Treasury Department and the IRS agree with the commenters’ recommendation, provided the lessor is not described in section 168(k)(9)(A) or (B). Accordingly, these proposed regulations amend §1.168(k)-2(b)(2)(ii)(F) and (G) to provide that such exclusion from the additional first year depreciation deduction does not apply to lessors of property to a trade or business described in section 168(k)(9) so long as the lessor is not described in such Code section.[6]

Specifically, the new proposed regulations proposed to add the following language to the end of Reg. §1.168(k)-2(b)(2)(ii)(F):

For purposes of section 168(k)(9)(A) and this paragraph (b)(2)(ii)(F), the term primarily used has the same meaning as that term is used in §1.167(a)-11(b)(4)(iii)(b) and (e)(3)(iii) for classifying property. This paragraph (b)(2)(ii)(F) does not apply to property that is leased to a trade or business described in section 163(j)(7)(A)(iv) by a lessor’s trade or business that is not described in section 163(j)(7)(A)(iv) for the taxable year;

And, similarly, propose to add the following language to the end of Reg. §1.168(k)-2(b)(2)(ii)(G):

This paragraph (b)(2)(ii)(G) does not apply to property that is leased to a trade or business that has had floor plan financing indebtedness by a lessor’s trade or business that has not had floor plan financing indebtedness during the taxable year or that has had floor plan financing indebtedness but did not take into account floor plan financing interest for the taxable year pursuant to this paragraph (b)(2)(ii)(G).

The revised proposed regulations add the following example to illustrate the proposed leasing rules:

Example 6, Proposed Reg. §1.168(k)-2(b)(iii)(F)

In 2019, a financial institution buys new equipment for $1 million and then leases this equipment to a lessee that primarily uses the equipment in a trade or business described in section 163(j)(7)(A)(iv). The financial institution is not described in section 163(j)(7)(A)(iv). As a result, paragraph (b)(2)(ii)(F) of this section does not apply to this new equipment. Assuming all other requirements are met, the financial institution’s purchase price of $1 million for the new equipment qualifies for the additional first year depreciation deduction under this section.

Floor Plan Financing and Bonus Depreciation - Exception

The proposed regulations provide for a special rule applicable to taxpayer with floor plan interest, determining when it is “taken into account” for purposes of the §163(j) business interest limitations. Specifically, the 2019 proposed regulations address the following:

A commenter to the August Proposed Regulations requested guidance on when floor plan financing is “taken into account” for purposes of section 168(k)(9)(B). The commenter believed that section 168(k)(9)(B) does not apply when a taxpayer does not deduct interest in excess of the sum of the amounts calculated under section 163(j)(1)(A) and (B). The Treasury Department and the IRS do not believe that section 163(j) is optional. However, the Treasury Department and the IRS agree that, for purposes of section 168(k)(9)(B), floor plan financing interest is not taken into account by a trade or business that has had floor plan financing indebtedness if the sum of the amounts calculated under section 163(j)(1)(A) and (B) for the trade or business for the taxable year equals or exceeds the business interest, as defined in section 163(j)(5) (including carryforwards of disallowed business interest under section 163(j)(2)), which includes floor plan financing interest of the trade or business, for the taxable year. Accordingly, these proposed regulations amend §1.168(k)-2(b)(2)(ii)(G) to provide that solely for purposes of section 168(k)(9)(B) and §1.168(k)-2(b)(2)(ii)(G), floor plan financing interest is not taken into account for the taxable year by a trade or business that has had floor plan financing indebtedness if the sum of the amounts calculated under section 163(j)(1)(A) and (B) for the trade or business for the taxable year equals or exceeds the business interest, as defined in section 163(j)(5), for the taxable year.[7]

The proposed revision to Reg. §1.168(k)-2(b)(ii)(G) reads as follows:

Solely for purposes of section 168(k)(9)(B) and this paragraph (b)(2)(ii)(G), floor plan financing interest is not taken into account for the taxable year by a trade or business that has had floor plan financing indebtedness if the sum of the amounts calculated under section 163(j)(1)(A) and (B) for the trade or business for the taxable year equals or exceeds the business interest, as defined in section 163(j)(5), of the trade or business for the taxable year (which includes floor plan financing interest).

Thus, even though a business may have incurred floor plan interest, that interest is not deemed to be “taken into account” for §163(j) purposes if the total of:

Business interest income (as defined by §163(j)(6))) and
30% of adjusted taxable income (as defined by §163(j)(8))

is greater than the total of business interest (as defined at §163(j)(5), including floor plan interest in the amount) for the year. To put it more simply, the floor plan interest isn’t taken into account if the special rule allowing for a deduction for floor plan interest isn’t actually necessary for the business to claim a deduction for such interest.

Taxpayers that have already filed 2018 returns that failed to claim bonus depreciation due to the existence of floor plan interest and did not claim bonus depreciation should review their return to see if, in fact, under this new standard they are still barred from claiming bonus depreciation.

The IRS provides two examples to illustrate this new exemption for businesses with floor plan interest.

Example 7, Proposed Reg. §1.168(k)-2(b)(iii)(G)

In 2019, F, an automobile dealer, buys new computers for $50,000 for use in its trade or business of selling automobiles. For purposes of section 163(j), F has the following for 2019: $1,000 of adjusted taxable income, $40 of business interest income, $400 of business interest (which includes $100 of floor plan financing interest). The sum of the amounts calculated under section 163(j)(1)(A) and (B) for F for 2019 is $340 ($40 + ($1,000 x 30 percent)). F’s business interest, which includes floor plan financing interest, for 2019 is $400. As a result, F’s floor plan financing interest is taken into account by F for 2019 pursuant to paragraph (b)(2)(ii)(G) of this section. Accordingly, F’s purchase price of $50,000 for the computers does not qualify for the additional first year depreciation deduction under this section.

Example 8, Proposed Reg. §1.168(k)-2(b)(iii)(H)

The facts are the same as in Example 7 in paragraph (b)(2)(iii)(G) of this section. In 2020, F buys new copiers for $30,000 for use in its trade or business of selling automobiles. For purposes of section 163(j), F has the following for 2020: $1,300 of adjusted taxable income, $40 of business interest income, $400 of business interest (which includes $100 of floor plan financing interest). The sum of the amounts calculated under section 163(j)(1)(A) and (B) for F for 2020 is $430 ($40 + ($1,300 x 30 percent)). F’s business interest, which includes floor plan financing interest, for 2020 is $400. As a result, F’s floor plan financing interest is not taken into account by F for 2020 pursuant to paragraph (b)(2)(ii)(G) of this section. Assuming all other requirements are met, F’s purchase price of $30,000 for the copiers qualifies for the additional first year depreciation deduction under this section.

Election for Self-Constructed Property Which Started Before September 28, 2017

The 2019 proposed regulations contain a special set of rules that apply to self-constructed property for which the manufacture, construction or production began before September 27, 2017. The IRS notes that the point of these rules, found in the 2019 proposed regulations at Proposed Reg. §1.168(k)-2(c), is to allow taxpayers the right to make an election similar to that found in section 3.02(2)(b) of Rev. Proc. 2011-26 (2011-16 I.R.B. 664).[8]

The preamble to the 2019 proposed regulations describes this election as follows:

The Treasury Department and the IRS have determined that it is appropriate to allow a taxpayer to elect to treat one or more components acquired or self-constructed after September 27, 2017, of certain larger self-constructed property as being eligible for the additional first year depreciation deduction under section 168(k). The larger self-constructed property must be qualified property under section 168(k)(2), as in effect before the enactment of the Act, for which the manufacture, construction, or production began before September 28, 2017. However, the election is not available for components of larger self-constructed property when such property is not eligible for any additional first year depreciation deduction under section 168(k) (for example, property described in section 168(k)(9) and placed in service by the taxpayer in any taxable year beginning after December 31, 2017, or qualified improvement property placed in service by the taxpayer after December 31, 2017). These proposed regulations amend §1.168(k)-2 by adding paragraph (c) to provide for this election. These proposed regulations also provide rules regarding installation costs and the determination of the basis attributable to the manufacture, construction, or production before January 1, 2020, for longer production period property or certain aircraft property described in section 168(k)(2)(B) or (C). Additionally, these proposed regulations provide the time and manner of making the election, and examples to illustrate the proposed rules.

These proposed regulations also amend §1.168(k)-2(e)(1)(iii) to provide rules regarding the determination of the basis attributable to the manufacture, construction, or production before January 1, 2027, for longer production period property or certain aircraft property described in section 168(k)(2)(B) or (C).[9]

The IRS has inserted the election and provisions at Proposed Reg. §1.168(k)-2(c) in the 2019 proposed regulations. This has the effect of renumbering the 2018 Proposed Regulation sections beginning §1.168(k)-2(c) and later, so that 2018 Proposed Reg. §1.168(k)-2(c) becomes Reg. §1.168(k)-2(d) and so on.

Elections to Use 50% Bonus Depreciation for Year Containing September 28, 2017

The regulations contain rules related to the special election for the year containing September 28, 2017 to use a 50% rather than 100% bonus depreciation amount.

In the preamble to the 2018 proposed regulations the IRS explained that, in their view, the law requires this election to be an “all or nothing” election. If made, the 50% amounts are used in lieu of the 100% amount for all property. Taxpayers are not able to use the 50% amount on one class of property, but the 100% amount on other classes.

As the IRS explains:

…[T]he proposed regulations provide rules for making the election under section 168(k)(10) to deduct 50 percent, instead of 100 percent, additional first year depreciation for qualified property acquired after September 27, 2017, by the taxpayer and placed in service or planted or grafted, as applicable, by the taxpayer during its taxable year that includes September 28, 2017. Because section 168(k)(10) does not state that the election may be made “with respect to any class of property” as stated in section 168(k)(7) for making the election out of the additional first year depreciation deduction, the proposed regulations provide that the election under section 168(k)(10) applies to all qualified property.

However, the regulation indicates that a separate election can be made to take the 50% vs. 100% when making the election with regard to specified plants under IRC §168(k)(5).

The rules for the election are found at Reg. §1.168(k)-2(f)(3)[10]. The election is required to be made by the due date, including extensions, for the tax year containing September 28, 2017.[11] The election is to be made in the manner prescribed on Form 4562 and its related instructions. The election is made at the partnership or S corporation level rather than at the equity holder level.[12]

A taxpayer that wishes to use the 50% rate must make a timely election. A taxpayer cannot late file a request to change its method of accounting for the assets to obtain the 50% deduction.[13]

Qualified Used Property

Aside from the increase in the percentage for bonus depreciation from 50% to 100%, the most significant change for most taxpayers in the rules governing bonus depreciation is the inclusion of used property as qualifying property so long as the property has never been used previously by the taxpayer. The regulations outline the situations when used property will or will not qualify for bonus depreciation.

Used property must meet the following requirements to qualify for bonus depreciation under the new rules:

Such property was not used by the taxpayer or a predecessor at any time prior to such acquisition;
The property is acquired by purchase, as that term is used for purposes of IRC §179; and
The cost of property does not include so much of the basis of such property as is determined by reference to the basis of other property held at any time by the person acquiring such property. (the rules of IRC §179(d)(3) are applied).[14]

The third requirement means that there is a different result if a taxpayer involuntarily exchanges or enters into a like kind exchange depending on whether the property acquired is used or new. As Reg. §1.168(k)-2(g)(5)(iii) notes:

If the replacement MACRS property or the replacement computer software, as applicable, meets the original use requirement in paragraph (b)(3)(ii) of this section and all other requirements of section 168(k) and this section, the remaining exchanged basis for the year of replacement and the remaining excess basis, if any, for the year of replacement for the replacement MACRS property or the replacement computer software, as applicable, are eligible for the additional first year depreciation deduction.

The regulation describes the test to see if property had previously been used by the taxpayer as follows:

…[T]he property is treated as used by the taxpayer or a predecessor at any time prior to acquisition by the taxpayer or predecessor if the taxpayer or the predecessor had a depreciable interest in the property at any time prior to such acquisition, whether or not the taxpayer or the predecessor claimed depreciation deductions for the property.[15]

The regulation establishes a depreciable interest

If a taxpayer previously leased the property, any portion that property that the taxpayer had previously had a depreciable interest in would not be eligible for bonus depreciation. The regulation states:

If a lessee has a depreciable interest in the improvements made to leased property and subsequently the lessee acquires the leased property of which the improvements are a part, the unadjusted depreciable basis, as defined in §1.168(b)-1(a)(3), of the acquired property that is eligible for the additional first year depreciation deduction, assuming all other requirements are met, must not include the unadjusted depreciable basis attributable to the improvements. [16]

The regulations also provide rules for a situation where a taxpayer initially had a partial interest in the property but later acquires an additional interest, generally allowing the taxpayer to claim the additional depreciation on that property.

If a taxpayer initially acquires a depreciable interest in a portion of the property and subsequently acquires a depreciable interest in an additional portion of the same property, such additional depreciable interest is not treated as used by the taxpayer at any time prior to its acquisition by the taxpayer. This paragraph (b)(3)(iii)(B)(2) does not apply if the taxpayer or a predecessor previously had a depreciable interest in the subsequently acquired additional portion. For purposes of this paragraph (b)(3)(iii)(B)(2), a portion of the property is considered to be the percentage interest in the property.[17]

However, if the taxpayer disposes of the partial interest first and then later acquires a new interest in the property, the rules are different.

If a taxpayer holds a depreciable interest in a portion of the property, sells that portion or a part of that portion, and subsequently acquires a depreciable interest in another portion of the same property, the taxpayer will be treated as previously having a depreciable interest in the property up to the amount of the portion for which the taxpayer held a depreciable interest in the property before the sale.[18]

If a member of a consolidated group previously had a depreciable interest in the property, the other members of the consolidated group will be treated as having previously used the property. For these purposes, even depreciable interests held by previous members of the consolidated group will create the disqualifying taint.[19]

A special rule is provided at Reg. §1.168(k)-2(b)(3)(ii) to combat what the IRS appears to believe might be an attempt to “game” the system when a corporation is being added to the group:

(ii) Certain acquisitions pursuant to a series of related transactions. Solely for purposes of applying paragraph (b)(3)(iii)(A)(1) of this section, if a series of related transactions includes one or more transactions in which property is acquired by a member of a consolidated group and one or more transactions in which a corporation that had a depreciable interest in the property becomes a member of the group, the member that acquires the property will be treated as having a depreciable interest in the property prior to the time of its acquisition.

The IRS goes on to add another “anti-abuse” provision for consolidated groups in Reg. §1.168(k)-2(b)(3)(iii):

(iii) Time for testing membership. Solely for purposes of applying paragraph (b)(3)(iii)(B)(3)(i) and (ii) of this section, if a series of related transactions includes one or more transactions in which property is acquired by a member of a consolidated group and one or more transactions in which the transferee of the property ceases to be a member of a consolidated group, whether the taxpayer is a member of a consolidated group is tested immediately after the last transaction in the series.

The IRS also adds a more general anti-abuse rule at Reg. §1.168(k)-2(b)(3)(C) which reads:

Special rules for a series of related transactions. Solely for purposes of section 168(k)(2)(E)(ii) and paragraph (b)(3)(iii)(A) of this section, in the case of a series of related transactions (for example, a series of related transactions including the transfer of a partnership interest, the transfer of partnership assets, or the disposition of property and the disposition, directly or indirectly, of the transferor or transferee of the property)-

(1) The property is treated as directly transferred from the original transferor to the ultimate transferee; and

(2) The relation between the original transferor and the ultimate transferee is tested immediately after the last transaction in the series.

In response to a request made in the comments, the IRS added a definition of a predecessor for purposes of the determination of used property at Reg. §1.168(k)-2(a)(2)(iv). The regulation provides that a predecessor includes:

A transferor of an asset to a transferee in a transaction to which section 381(a) applies (carryovers in certain corporate acquisitions);
A transferor of an asset to a transferee in a transaction in which the transferee’s basis in the asset is determined, in whole or in part, by reference to the basis of the asset in the hands of the transferor;
A partnership that is considered as continuing under section 708(b)(2) and §1.708-1 (partnership merger or division);
The decedent in the case of an asset acquired by the estate; or
A transferor of an asset to a trust.

As well, the final regulations provide a safe harbor five year look back rule to determine if the taxpayer previously had a depreciable interest in the property at Reg. §1.168(k)-2(b)(3)(iii)(B)(1). The regulation provides:

To determine if the taxpayer or a predecessor had a depreciable interest in the property at any time prior to acquisition, only the five calendar years immediately prior to the taxpayer’s current placed-in-service year of the property is taken into account. If the taxpayer and a predecessor have not been in existence for this entire five-year period, only the number of calendar years the taxpayer and the predecessor have been in existence is taken into account.

Application to Partnerships

The fact that used property now qualifies for bonus depreciation complicates earlier IRS guidance that had used depreciation calculations for various purposes. In early May of 2018 the IRS had modified the safe harbor calculations for recognized built in gain and recognized built in loss under IRC §382 in Notice 2018-30 because the use of 100% bonus depreciation for such calculations created results that the IRS no longer believed made sense.

Several partnership rules, specifically those under IRC §§704(c), 734 and 754, would be impacted by the fact that bonus depreciation is now allowed on used assets. In all three cases, a calculation of depreciation is made in certain cases that passes out to one or more partners. In the past such depreciation was always computed using MACRS without a bonus depreciation deduction since the assets were, virtually by definition, used assets.

But now used assets, unless they had previously been used by the taxpayer, are not barred from 100% bonus depreciation. Thus, the IRS gives guidance in the regulations about whether or when the 100% bonus depreciation calculation will be allowed in the various cases.

As the IRS noted in the preamble of the 2018 proposed regulations:

Because the Act amended section 168(k) to allow the additional first year depreciation deduction for certain used property in addition to new property, the Treasury Department and the IRS have reconsidered whether basis adjustments under sections 734(b) and 743(b) now qualify for the additional first year depreciation deduction. The Treasury Department and the IRS also have considered whether certain section 704(c) adjustments as well as the basis of distributed property determined under section 732 should qualify for the additional first year depreciation deduction.

Section 704(c) Remedial Allocations

Under Section 704(c), a partner contributing property to the partnership where the partner’s basis differs from fair value at the time of contribution will trigger a §704(c) allocation. Roughly, a §704(c) allocation (which is required unless certain de minimis rules are met) seeks (though sometimes not successfully) to put the other partners is the same position in terms of taxable income and types of income as if the partnership’s unadjusted basis in the asset was the fair value at the date of contribution.

One method allowed for making such §704(c) allocations is the remedial allocation method under Reg. §1.704-3(d)(2) for depreciable assets. In that case, the excess of the fair value over the unadjusted basis of the asset contributed is treated as if it were a separate asset acquired on the date of contribution. The other partners receive their share of the computed depreciation on that asset each year, while the contributing partner has an equivalent amount reported to him/her as additional ordinary income.

If bonus depreciation was allowed on the assets, the contributing partner would find that all of excess of the fair value of the asset over its basis on contribution would be allocated back to him/her, reduced only his/her share of that gain. Such a result would effectively remove the deferral of gain on contributed assets under §721 to the contributing partner for the most part an illusion.

In the TCJA-related regulations under §168(k) the IRS rules that any such “deemed asset” created by a 704(c) remedial allocation will not be eligible for bonus depreciation.[20] The IRS reasoning, found in the preamble to the 2018 proposed regulations, states:

Notwithstanding the language of §1.704-3(d)(2) that any method available to the partnership for newly purchased property may be used to recover the portion of the partnership’s book basis in contributed property that exceeds its adjusted tax basis, remedial allocations do not meet the requirements of section 168(k)(2)(E)(ii). Because the underlying property is contributed to the partnership in a section 721 transaction, the partnership’s basis in the property is determined by reference to the contributing partner’s basis in the property, which violates sections 179(d)(2)(C) and 168(k)(2)(E)(ii)(II). In addition, the partnership has already had a depreciable interest in the contributed property at the time the remedial allocation is made, which is in violation of section 168(k)(2)(E)(ii)(I) as well as the original use requirement.

The preamble to the 2018 proposed regulations continued to note that the same rule applies in the case of revaluations of partnership property, otherwise referred to as reverse 704(c) allocations.

The same prohibition on the use of bonus depreciation will apply to the zero basis property rule found at Reg. §1.704-19(b)(2)(iv)(g)(3). As the preamble to the 2018 proposed regulations explained:

Section 1.704-1(b)(2)(iv)(g)(3) provides that, if partnership property has a zero adjusted tax basis, any reasonable method may be used to determine the book depreciation, depletion, or amortization of the property. The proposed regulations provide that the additional first year depreciation deduction under section 168(k) will not be allowed on property contributed to the partnership with a zero adjusted tax basis because, with the additional first year depreciation deduction, the partners have the potential to shift built-in gain among partners.

Property Distributed from a Partnership with Basis Determined Under IRC Section 732

Generally, property distributed by a partnership to a partner ends up with a carryover basis, as the IRS explains in the preamble to the 2018 proposed regulations:

Section 732(a)(1) provides that the basis of property (other than money) distributed by a partnership to a partner other than in liquidation of the partner’s interest is its adjusted basis to the partnership immediately before the distribution. Section 732(a)(2) provides that the basis determined under section 732(a)(1) shall not exceed the adjusted basis of the partner’s interest in the partnership reduced by any money distributed in the same transaction. Section 732(b) provides that the basis of property (other than money) distributed by a partnership to a partner in liquidation of the partner’s interest is equal to the adjusted basis of the partner’s interest in the partnership reduced by any money distributed in the same transaction.

In this situation, the regulations under IRC §168(k) provide that this property will not be eligible for bonus depreciation treatment when received by the partner.[21] As the preamble continues:

Property distributed by a partnership to a partner fails to satisfy the original use requirement because the partnership used the property prior to the distribution. Distributed property also fails to satisfy the acquisition requirements of section 168(k)(2)(E)(ii)(II). Any portion of basis determined by section 732(a)(1) fails to satisfy section 179(d)(2)(C) because it is determined by reference to the partnership’s basis in the distributed property. Similarly, any portion of basis determined by section 732(a)(2) or (b) fails to satisfy section 179(d)(3) because it is determined by reference to the distributee partner’s basis in its partnership interest (reduced by any money distributed in the same transaction).

Section 734(b) Adjustments

The Sections 734 and 743 adjustments take place when a partnership either has a §754 election in place made in a prior year or makes such an election in the affected year. In both cases an adjustment is computed to take into account some differences between “inside” and “outside” basis upon the occurrence of certain transactions.

The IRS explains a §734(b) adjustment as follows in the preamble to the proposed regulations:

Section 734(b)(1) provides that, in the case of a distribution of property to a partner with respect to which a section 754 election is in effect (or when there is a substantial basis reduction under section 734(d)), the partnership will increase the adjusted basis of partnership property by the sum of (A) the amount of any gain recognized to the distributee partner under section 731(a)(1), and (B) in the case of distributed property to which section 732(a)(2) or (b) applies, the excess of the adjusted basis of the distributed property to the partnership immediately before the distribution (as adjusted by section 732(d)) over the basis of the distributed property to the distributee, as determined under section 732.

The IRS concludes that a §734(b) adjustment fails to qualify for bonus depreciation because the property in question that is receiving the adjustment is property previously owned by the partnership.[22] The preamble explains:

Because a section 734(b) basis adjustment is made to the basis of partnership property (i.e., non-partner specific basis) and the partnership used the property prior to the partnership distribution giving rise to the basis adjustment, a section 734(b) basis adjustment fails the original use clause in section 168(k)(2)(A)(ii) and also fails the used property requirement in section 168(k)(2)(E)(ii)(I). The proposed regulations therefore provide that section 734(b) basis adjustments are not eligible for the additional first year depreciation deduction.

Section 743(b) Adjustments

Given that the IRS decided that the bonus depreciation options do not apply to §704(c) allocations, reverse §704(c) allocations, property distributed to a partner and to §734(b) adjustments, you might assume the same answer would apply to §743(b) adjustments. But such a conclusion would be in error—in this case the IRS allows the use of bonus depreciation for the §743(b) adjustment.

A §743(b) adjustment is what comes to mind most often when CPAs are thinking about a §754 election. The IRS explains the situations where a §743(b) adjustment is appropriate in the preamble to the 2018 proposed regulations:

Section 743(b)(1) provides that, in the case of a transfer of a partnership interest, either by sale or exchange or as a result of the death of a partner, a partnership that has a section 754 election in effect (or if there is a substantial built-in loss immediately after such partnership interest transfer under section 743(d)), will increase the adjusted basis of partnership property by the excess of the transferee’s basis in the transferred partnership interest over the transferee’s share of the adjusted basis of partnership’s property. This increase is an adjustment to the basis of partnership property with respect to the transferee partner only and, therefore, is a partner specific basis adjustment to partnership property. The section 743(b) basis adjustment is allocated among partnership properties under section 755.

But the IRS concludes that, because this being allocated to only a new partner, the taxpayer in question does not have a disqualifying prior ownership interest.[23]

As stated above, prior to the Act, a section 743(b) basis adjustment would always fail the original use requirement in section 168(k)(2)(A)(ii) because partnership property to which a section 743(b) basis adjustment relates would have been previously used by the partnership and its partners prior to the transfer that gave rise to the section 743(b) adjustment. After the Act, while a section 743(b) basis adjustment still fails the original use clause in section 168(k)(2)(A)(ii), a transaction giving rise to a section 743(b) basis adjustment may satisfy the used property clause in section 168(k)(2)(A)(ii) because of the used property acquisition requirements of section 168(k)(2)(E)(ii), depending on the facts and circumstances.

Because a section 743(b) basis adjustment is a partner specific basis adjustment to partnership property, the proposed regulations take an aggregate view and provide that, in determining whether a section 743(b) basis adjustment meets the used property acquisition requirements of section 168(k)(2)(E)(ii), each partner is treated as having owned and used the partner’s proportionate share of partnership property. In the case of a transfer of a partnership interest, section 168(k)(2)(E)(ii)(I) will be satisfied if the partner acquiring the interest, or a predecessor of such partner, has not used the portion of the partnership property to which the section 743(b) basis adjustment relates at any time prior to the acquisition (that is, the transferee has not used the transferor’s portion of partnership property prior to the acquisition), notwithstanding the fact that the partnership itself has previously used the property. Similarly, for purposes of applying section 179(d)(2)(A), (B), and (C), the partner acquiring a partnership interest is treated as acquiring a portion of partnership property, and the partner who is transferring a partnership interest is treated as the person from whom the property is acquired.

The preamble to the 2018 proposed regulations continued to note that some rules could still bar the use of bonus depreciation.[24] The preamble notes:

For example, the relationship between the transferor partner and the transferee partner must not be a prohibited relationship under section 179(d)(2)(A). Also, the transferor partner and transferee partner may not be part of the same controlled group under section 179(d)(2)(B). Finally, the transferee partner’s basis in the transferred partnership interest may not be determined in whole or in part by reference to the transferor’s adjusted basis, or under section 1014

Since inherited property has basis determined under IRC §1014, there is no option to claim the additional first year depreciation under §168(k) on a §743(b) adjustment arising from the death of a partner—even if the interest passes to an unrelated third party.

The preamble to the 2018 proposed regulations also noted that the issue of whether the acquiring party is or is not currently a partner in the partnership doesn’t matter.

The same result will apply regardless of whether the transferee partner is a new partner or an existing partner purchasing an additional partnership interest from another partner. Assuming that the transferor partner’s specific interest in partnership property that is acquired by the transferee partner has not previously been used by the transferee partner or a predecessor, the corresponding section 743(b) basis adjustment will be eligible for the additional first year depreciation deduction in the hands of the transferee partner, provided all other requirements of section 168(k) are satisfied (and assuming §1.743-1(j)(4)(i)(B)(2) does not apply). This treatment is appropriate notwithstanding the fact that the transferee partner may have an existing interest in the underlying partnership property, because the transferee’s existing interest in the underlying partnership property is distinct from the interest being transferred.

The IRS also ruled that an election out of bonus depreciation for classes of property can be made independently by the partnership for §743(b) adjustment “property” created during the year and the assets the partnership placed in service generally during the year.[25]

Finally, the [2018] proposed regulations provide that a section 743(b) basis adjustment in a class of property (not including the property class for section 743(b) basis adjustments) may be recovered using the additional first year depreciation deduction under section 168(k) without regard to whether the partnership elects out of the additional first year depreciation deduction under section 168(k)(7) for all other qualified property in the same class of property and placed in service in the same taxable year. Similarly, a partnership may make the election out of the additional first year depreciation deduction under section 168(k)(7) for a section 743(b) basis adjustment in a class of property (not including the property class for section 743(b) basis adjustments), and this election will not bind the partnership to such election for all other qualified property of the partnership in the same class of property and placed in service in the same taxable year.

The IRS gives a series of examples to show how to test to see if a §743(b) transaction qualifies for the additional first year depreciation under IRC §168(k).

Example 13, Reg. §1.168(k)-2(b)(3)(vi)

Q, R, and S form an equal partnership, QRS, in 2019. Each partner contributes $100, which QRS uses to purchase a retail motor fuels outlet for $300. Assume this retail motor fuels outlet is QRS’ only property and is qualified property under section 168(k)(2)(A)(i). QRS makes an election not to deduct the additional first year depreciation for all qualified property placed in service during 2019. QRS has a section 754 election in effect. QRS claimed depreciation of $15 for the retail motor fuels outlet for 2019. During 2020, when the retail motor fuels outlet’s fair market value is $600, Q sells all of his partnership interest to T in a fully taxable transaction for $200. T never previously had a depreciable interest in the retail motor fuels outlet. T takes an outside basis of $200 in the partnership interest previously owned by Q. T’s share of the partnership’s previously taxed capital is $95. Accordingly, T’s section 743(b) adjustment is $105 and is allocated entirely to the retail motor fuels outlet under section 755. Assuming all other requirements are met, T’s section 743(b) adjustment qualifies for the additional first year depreciation deduction.

Example 14, Reg. §1.168(k)-2(b)(3)(vi)

The facts are the same as in Example 13 of this paragraph (b)(3)(vi), except that Q sells his partnership interest to U, a related person within the meaning of section 179(d)(2)(A) or (B) and §1.179-4(c). U’s section 743(b) adjustment does not qualify for the additional first year depreciation deduction.

Example 15, Reg. §1.168(k)-2(b)(3)(vi)

The facts are the same as in Example 13 of this paragraph (b)(3)(vi), except that Q dies and his partnership interest is transferred to V. V takes a basis in Q’s partnership interest under section 1014. As a result, section 179(d)(2)(C)(ii) and §1.179-4(c)(1)(iv) are not satisfied, and V’s section 743(b) adjustment does not qualify for the additional first year depreciation deduction.

Example 16, Reg. §1.168(k)-2(b)(3)(vi)

The facts are the same as in Example 13 of this paragraph (b)(3)(vi), except that QRS purchased the retail motor fuels outlet from T prior to T purchasing Q’s partnership interest in QRS. T had a depreciable interest in such retail motor fuels outlet. Because T had a depreciable interest in the retail motor fuels outlet before T acquired its interest in QRS, T’s section 743(b) adjustment does not qualify for the additional first year depreciation deduction.

Syndication Transactions

The IRS provides special rules for syndication transactions to avoid allowing a short-term holder to claim additional first year depreciation. Reg. §1.168(k)-2(b)(3)(vi) provides:

If a lessor has a depreciable interest in the property and the lessor and any predecessor did not previously have a depreciable interest in the property, and the property is sold by the lessor or any subsequent purchaser within three months after the date the property was originally placed in service by the lessor (or, in the case of multiple units of property subject to the same lease, within three months after the date the final unit is placed in service, so long as the period between the time the first unit is placed in service and the time the last unit is placed in service does not exceed 12 months), and the user of the property after the last sale during the three-month period remains the same as when the property was originally placed in service by the lessor, the purchaser of the property in the last sale during the three month period is considered the taxpayer that acquired the property for purposes of applying paragraphs (b)(3)(ii) and (iii) of this section.

As the preamble to the 2018 proposed regulations provided:

Thus, if a transaction is within the rules described above, the purchaser of the property in the last sale during the three-month period is eligible to claim the additional first year depreciation for the property (assuming all requirements are met), and the earlier purchasers of the property are not.

[1] TD 9874, https://www.irs.gov/pub/irs-drop/td-9874.pdf, September 13, 2019, retrieved September 15, 2019.

[2] REG-106808-19, https://www.irs.gov/pub/irs-drop/nprm-reg-106808-19.pdf, September 13, 2019, retrieved September 15, 2019

[3] Ibid, p. 28

[4] TD 9874, pp. 9-10

[5] Proposed Reg. §1.168(k)-2(b)(ii)(G)

[6] REG-106808-19, p. 5

[7] Ibid, p. 6

[8] Ibid, p. 25

[9] Ibid, pp. 25-26

[10] As was noted, due to the insertion of 2019 Proposed Reg. §1.168(k)-2(c), this provision was labeled as Proposed Reg. §1.1168(k)-2(e) in the 2018 proposed regulations.

[11] Reg. §1.168(k)-2(f)(3)(ii)(A).

[12] Reg. §1.168(k)-2(f)(3)(ii)(B)

[13] Reg. §1.168(k)-2(f)(3)(ii)(C)

[14] Proposed Reg. §1.168(k)-2(b)(3)(iii)(A)

[15] Reg. §1.168(k)-2(b)(3)(iii)(B)(1)

[16] Reg. §1.168(k)-2(b)(3)(iii)(B)(1)

[17] Reg. §1.168(k)-2(b)(3)(iii)(B)(2)

[18] Reg. §1.168(k)-2(b)(3)(iii)(B)(2)

[19] Reg. §1.168(k)-2(b)(3)(iii)(B)(3)(i)

[20] Reg. §1.168(k)-2(b)(3)(iv)(A), Reg. §1.704-3(d)(2)

[21] Reg. §1.168(k)-2(b)(3)(iv)(B)

[22] Reg. §1.168(k)-2(b)(3)(iv)(C)

[23] Reg. §1.168(k)-2(b)(3)(iv)(D)(1)

[24] Reg. §1.168(k)-2(b)(3)(iv)(D)(2)

[25] Reg. §1.743-1(j)(4)(i)(B)(1)