(a) General Tax Consequences of Intercompany Transactions.
1. Effect of an Intercompany Transaction with Respect to Property on the Determination of the Property’s Basis. Where a corporation that is a member of an affiliated group engages in a transaction with respect to property with another member of an affiliated group, the gain or loss that derives from that transaction, if any, may require an adjustment to the property’s basis in the hands of its owner. In determining the required basis adjustment in the context of intercompany transactions, Massachusetts law generally looks to federal income tax law, as explained further in the succeeding subsections.
2. Application of Federal Law in Determining Massachusetts Gain or Loss in the Context of an Intercompany Transaction. In determining whether and when gain or loss is recognized for Massachusetts corporate excise purposes in the case of a transaction between members of a combined group, the federal rules and principles applicable to transactions between members of a federal consolidated group generally shall apply, except where a divergence between Massachusetts law and such federal rules and principles requires a different result. In contrast, in determining whether and when gain or loss is recognized for Massachusetts corporate excise purposes in the case of a transaction between two affiliated corporations that are not members of a combined group, the federal rules and principles applicable to transactions between members of a federal consolidated group generally shall not apply, even if such corporations are members of a federal consolidated group.
(b) Rules Applicable to Transactions Between Corporations That Are Not Members of a Combined Group. In determining whether gain or loss is recognized for Massachusetts corporate excise purposes in connection with a transaction between corporations that are not members of a combined group, and, by extension, the effect that such a transaction will have on basis for Massachusetts purposes, Massachusetts law generally incorporates the analogous federal rules that would apply in the absence of a federal consolidated group. The Massachusetts rules that apply to transactions between affiliated corporations that are not members of a combined group may include those set forth under M.G.L. c. 63, § 39A and M.G.L. c. 62C, § 3A, and the incorporated federal rules may include those set forth under Code §§ 163 and 267, among others. In the case of the disposition of property between corporations that are not members of a combined group, the Massachusetts basis of the property disposed of generally shall be adjusted in the hands of the acquiring corporation when gain or loss is taken into account, consistent with the applicable Massachusetts and federal rules. Special rules that apply in the instance of a combined group are set forth at 830 CMR 63.31N.1(5)(c).
(c) Rules Applicable to Transactions Between Members of a Combined Group.
1. In General. Whether gain or loss is recognized for Massachusetts corporate excise purposes in connection with a transaction between corporations that are members of a combined group, and, by extension, the effect that such a transaction will have on basis for Massachusetts purposes, generally depends upon the state application of the federal rules that apply in the instance of a federal consolidated group, even if such corporations are not members of a federal consolidated group. Where two affiliated corporations are members of a combined group, any item of income, expense, gain or loss that results from a transaction between such corporations in respect of the group’s unitary business (e.g., the disposition of property between such corporations where such property is used in the group's unitary business) will not be taken into account at such time. Rather, any item of income, expense, gain or loss that results from a transaction between the members of a combined group in respect of the group’s unitary business is generally taken into account by applying the federal rules and principles applicable to transactions between members of a federal consolidated group as set forth in Treas. Reg. § 1.1502-13, except where a divergence between Massachusetts law and such federal rules requires a different result, or where no analogous situation exists for purposes of the federal rules. See830 CMR 63.32B.2(6)(c)9. Similar treatment applies when any item of income, expense, gain or loss results from a transaction between members of a combined group in any case in which the group has made and is subject to a Massachusetts affiliated group election without regard to any unitary business determination. See 830 CMR 63.32B.2(10). An item of income, expense, gain or loss described in this subsection (c) is not initially taken into account, but rather accounted for later, consistent with the federal rules as referenced in this subsection. Examples of events upon which the deferred item of income, expense, gain or loss, is taken into account are provided in 830 CMR 63.31N.1(5)(c)2. In the case of the disposition of property between corporations that are members of a combined group, the Massachusetts basis of the property disposed of generally shall be adjusted when gain or loss is taken into account, consistent with the applicable Massachusetts and federal rules. An item of income, expense, gain or loss not described in this subsection (c) shall be accounted for consistent with the rules set forth in 830 CMR 63.31N.1(5)(b).
2. Subsequent Events that Trigger Recognition of a Previously Deferred Item of Income, Expense, Gain or Loss. An item of income, expense, gain or loss, that is not initially taken into account under the rules set forth in 830 CMR 63.31N.1(5)(c)1 shall be subsequently taken into account in a manner similar to, and utilizing the principles referenced in, Treas. Reg. § 1.1502-13. For example, in the case of a sale of property between two members of a combined group, the item of income or gain that was not taken into account upon the initial sale shall be taken into account upon, and apportioned as income earned immediately before, certain recognition events, including but not limited to:
a. the object of the intercompany transaction is sold or otherwise disposed of by the buying member (that is, the combined group member that purchased the object of the intercompany transaction from the selling member) to a person or entity that is not a member of the combined group;
b. where the combined group is based upon the existence of a unitary business (i.e., no Massachusetts affiliated group election has been made), the object of the intercompany transaction is:
i. sold by the buying member to an entity that is a member of the combined group for use outside the unitary business in which the buying member and selling member are engaged; or
ii. converted by the buying member to a use outside the unitary business in which the buying member and selling member are engaged; or
c. the buying member and selling member are no longer members of the same combined group (including where a combined group ceases to be determined pursuant to a pre-existing Massachusetts affiliated group or worldwide election and the buying member and selling member are no longer in a combined group for that reason).
See 830 CMR 63.32B.2(6)(c)5. The rules that explain the apportionment consequences of an intercompany transaction in the context of a combined group are set forth at 830 CMR 63.32B.2(7).
3. Examples. The following examples illustrate the application for Massachusetts corporate excise purposes of some of the general principles set forth in Treas. Reg. § 1.1502-13 as applied in the context of 830 CMR 63.31N.1(5)(c). Assume for purposes of these examples that for tax years 2009-2013 Corporations C and D are affiliated corporations and that for tax years 2010-2013 Corporations C and D are engaged in a unitary business and constitute a combined group that is required to file a combined report. Further, both C and D are taxed on a calendar year basis and are on the accrual method of accounting.
a. Example 1. During tax year 2010, C sells a non-depreciable asset with a basis of $80,000 to D for $100,000. For Massachusetts tax purposes, because C and D file as members of a combined group, the gain from the sale of the asset is not taken into account at this time, and D has a cost basis in the asset of $100,000. In January 2011, D sells the asset previously purchased from C to an unrelated party, X, for $130,000. For Massachusetts tax purposes, C recognizes gain of $20,000 (which is deferred gain that was not taken into account on the prior 2010 sale to D) and D recognizes gain of $30,000. In contrast, if C and D had not been members of a combined group in 2010, C would have recognized gain of $20,000 upon the sale to D in 2010, and D would still have recognized $30,000 of gain upon the sale to X in 2011.
b. Example 2. On January 1, 2009, C buys a depreciable asset with a 10-year useful life for $100,000 and begins to depreciate it under the straight-line method of recovery. C claims $10,000 of depreciation for each of 2009 and 2010, leaving C with an $80,000 basis in the asset on January 1, 2011. On that date, C sells the asset to D for $130,000. For Massachusetts tax purposes, because C and D file as members of a combined group, the gain from the sale of the asset is not taken into account at this time, and D takes a cost basis in the asset of $130,000.
Subsequent to the sale, for purposes of calculating D’s depreciation deductions, D steps into C’s shoes to the extent D’s basis does not exceed C’s adjusted basis at the time of the sale (i.e., $80,000). Any basis on the part of D in excess of C’s adjusted basis at the time of sale (i.e., $130,000 - $80,000, or $50,000) is treated as new 10-year recovery property for which D elects the straight-line method of recovery. Therefore, for 2011 D has $15,000 of depreciation: $10,000 of depreciation with respect to $80,000 of its basis (the portion of its $130,000 basis not exceeding C’s adjusted basis at the time of sale), and $5,000 of depreciation with respect to the $50,000 of its basis that exceeded C’s adjusted basis at the time of sale. C’s $50,000 gain that was not taken into account in connection with the sale to D is taken into account to reflect the difference for each combined reporting year between D’s depreciation ($15,000) and the depreciation D would have been entitled to had C and D been divisions of the same corporation ($10,000). Thus, C is to take into account $5,000 of gain in each remaining year in the original 10-year recovery period, which is offset by the additional $5,000 of depreciation taken each year by D. Consequently, C takes into account $5,000 of gain for each of the tax years 2011 and 2012.
On January 1, 2013, D sells the asset previously purchased from C to an unrelated party, X, for $110,000. As explained above, D has $15,000 of depreciation with respect to the asset in each of 2011 and 2012, leaving D with a basis of $100,000 at the time of the sale. For Massachusetts tax purposes, C recognizes $40,000 of gain upon D’s sale of the asset to X (which is the balance of C’s gain that was not taken into account on the prior 2011 sale to D). D recognizes gain of $10,000 (i.e., the difference between the sale price of $110,000 and its adjusted basis in the property of $100,000).
(d) Intercompany Transactions Where the Composition of the Massachusetts Combined Group Differs from that of the Federal Consolidated Group.
1. In General. Although the Massachusetts rules for accounting for an item of income that results from a transaction between members of a combined group are similar to the federal rules that apply to intercompany transactions in the context of a federal consolidated group, the composition of such groups can differ. For example, the common ownership requirement used to determine a Massachusetts combined group, i.e., more than 50% voting control, is different than the 80% control "vote and value" standard that applies for purposes of determining a federal consolidated group. Also, in contrast to the federal rules, the Massachusetts ownership standard is met when the voting control standard is satisfied through either direct or indirect ownership and a common owner may be either corporate or non-corporate. Further, there are certain types of corporations that are not included in a federal consolidated group that may be included in a Massachusetts combined group, for example, corporations that are not incorporated under the laws of the United States or a U.S. state, S corporations, REITs, RICs and certain insurance companies. Conversely, there are certain corporations that are not included in a Massachusetts combined group that may be included in a federal consolidated group, for example, a corporation that is incorporated under the laws of the United States or a U.S. state but that is not engaged in a unitary business with the corporations that are included in the combined group (provided that the combined group has not made a Massachusetts affiliated group election). Consequently, because there can be differences between the composition of a Massachusetts combined group and that of a federal consolidated group, there may be differences as to the treatment of an intercompany transaction that takes place between the members of such groups. Such differences in treatment are illustrated in the examples in 830 CMR 63.31N.1(5)(d)2. In any instance in which a member of a Massachusetts combined group enters into a transaction with a corporation that is not a member of the combined group, any item of income, expense, gain or loss that results from such transaction shall be determined consistent with the general rules set forth in 830 CMR 63.31N.1(5)(a).
2. a. Examples. The examples in this section illustrate the provisions of 830 CMR 63.31N.1(5). Assume for purposes of these examples that Corporation P owns 100% of Corporations A, B, C and D and that these five corporations file a consolidated federal income tax return for the 2010 and 2011 tax years. All of the corporations are taxed on a calendar year basis and are on the accrual method of accounting. Assume that Corporations P, C and D, (but not A and B) are engaged in a unitary business during tax years 2010 and 2011, and therefore constitute a combined group (the PCD combined group) that is required to file a combined report under M.G.L. c. 63, § 32B as applicable for such years.
b. Example 1. During tax year 2010, C sells a non-depreciable asset used in the PCD unitary business with a basis of $80,000 to D for $100,000. For both federal and Massachusetts tax purposes, the gain from the sale between C and D is not taken into account at this time, and D has a cost basis in the asset of $100,000. In January 2011, D sells the asset purchased from C in tax year 2010 to an unrelated party, X, for $130,000. For federal and Massachusetts tax purposes, C recognizes $20,000 of gain upon D’s sale in 2011 (which is deferred gain that was not taken into account in connection with the prior 2010 sale to D) and D recognizes gain of $30,000. For Massachusetts tax purposes the gain of C and D is included in the taxable income of the PCD combined group for tax year 2011.
c. Example 2. During tax year 2010 C sells a non-depreciable asset used in the PCD unitary business with a basis of $120,000 to B for $100,000. For federal tax purposes, the loss from the asset sale between C and B is not taken into account at this time, and B has a cost basis in the asset of $100,000. For Massachusetts tax purposes, C realizes a $20,000 loss on the transaction because B is not a member of the combined group. Whether such gain or loss is recognized depends on the application of the relevant state and federal rules as provided in 830 CMR 63.31N.1(5)(a). Consequently, under the Code § 267 rules as applied in Massachusetts, the loss must be deferred until there is a later triggering event, such as B’s later sale of the asset to an unrelated party. For Massachusetts tax purposes, B has a basis in the asset of $100,000. In January 2011, B sells the asset purchased from C to an unrelated party for $130,000. For both federal and Massachusetts tax purposes, B recognizes a gain of $30,000 on the sale and C recognizes a $20,000 loss (which for Massachusetts tax purposes is the loss that was previously deferred under the Code § 267 rules as applied in Massachusetts in connection with C's prior asset sale to B). For Massachusetts tax purposes, the loss of C is included in the taxable income computation of the PCD combined group for tax year 2011.