With Saltmarsh S.A.F.E. you can easily and securely transfer data directly to your Saltmarsh accountant.

Saltmarsh BRIDGE is a service that allows you to have instant access to your own QuickBooks virtual desktop already installed and ready to use.

Featured Video

CPA - Featured Video - Qualifying for the Research and Development Tax Credit

Qualifying for the Research and Development Tax Credit

The R&D tax credit is a Federal incentive provided by Congress to U.S. Manufacturers to offset the cost of innovating. As it is a credit as opposed to a deduction, it is a dollar for dollar offset to your tax liability. Also, since the credit is open for the 3 immediately preceding tax years, filing a claim for refund for the credit for past years can be a direct cash infusion into your company. This video explains the tax credit and how Saltmarsh can help your business claim the credits you deserve.

Featured News & Articles

Molly Murphy Recognized as Distinguished Alumni Posted -Monday, April 08, 2013

Saltmarsh shareholder, Molly Murphy, was recently recognized at the University of West Florida’s annual Alumni brunch, where she received the Distinguished Alumni award.

» Read More

Green Construction: It's More Than Just a Fad Posted -Friday, March 01, 2013

In 21st century America, it seems that everybody is “going green.” It’s hard to open a newspaper or magazine or watch TV without hearing about one organization or another that’s going green or implementing new environmental “sustainability practices.”

» Read More

Summary of the Taxpayer Relief Act of 2012 - H.R. 8 Posted -Wednesday, February 27, 2013

International Tax and Miscellaneous Provisions

» Read More

Featured Blog Posts

Jacksonville Community Bank CFO Roundtable Posted - Tuesday, May 14, 2013

Real Estate Professionals Posted - Monday, May 13, 2013

Tax Reform: A Hot Topic Posted - Tuesday, May 07, 2013

Saltmarsh News & Articles Top stories from Saltmarsh's Pensacola, Fort Walton Beach, Tampa, and Orlando offices

Treasury Issues Proposed Regulations Addressing Tax Treatment of Credit Default Swaps

Release Date: Friday, October 14, 2011

On September 15, 2011, the Treasury issued proposed regulations which would include Credit Default Swaps (“CDS”) in the definition of a Notional Principal Contract (“NPC”) under Treas. Regulation 1-446.3. The proposed regulations also confirm that swaps, including a CDS, would not fall under the Section 1256 regime and proposes significant changes to the existing NPC regulations. The proposals also provide conforming revisions to other relevant regulations.

What is a Credit Default Swap?

Seven years ago, the Treasury issued Notice 2004-52 seeking comments from users and their advisors on how a CDS should be treated for tax purposes. The popular view was that a CDS should be considered an NPC while others suggested treatment as option, or an insurance product, or a guarantee. These new proposed regulations have ended this debate. The proposed regulations, when finalized, will treat most CDS contracts as NPCs.

What changes have been made to the existing NPC regulations?

Under existing law, an NPC is defined as a financial instrument that provides for the payment of amounts by one party to another at specified intervals, calculated by reference to a specified index upon a notional amount, in exchange for specified consideration or a promise to pay a similar amount. The proposed regulations revise this definition by stating that an NPC requires two or more payments to a counterparty. However, the “fixing” of an amount is treated as a payment even if the actual payment is to be made at a later date. The practical effect of this new definition is to prohibit creating an instrument, such as a “bullet” swap, where all of the anticipated payments are netted and made as one back end payment. Rather than looking at the sole ultimate payment, the proposed regulations require an understanding of the calculation of the expected payment. To the extent the ultimate payment consists of two or more calculations (i.e., dividend payments plus change in value) then the instrument will be considered an NPC.

What are some of the negative tax implications of a NPC?

As more instruments will fall under the expanded definition of an NPC, it is important to understand the potential negative tax treatment that these instruments carry. Under existing regulations most NPC payments, excluding a termination payment (i.e., an unscheduled payment made to extinguish the remaining obligations of any party under the contract), will be considered a Section 212 deduction if the taxpayer is not considered to be engaged in a trade or business. Section 212 deductions are considered miscellaneous itemized deductions at the individual tax level, subject to limitation in part or in full, depending on the taxpayer’s facts and circumstances. In addition, these Section 212 deductions are not deductible in many state jurisdictions.

In addition to taking into account the payments described above, proposed regulations issued in 2004 require taxpayers to adopt a method of accounting to take into account contingent nonperiodic payments (i.e., a final swap payment at end of the contract). Prior to issuance of these 2004 regulations, most taxpayers adopted a “wait and see” method on these payments. Under these proposed regulations, taxpayers are required to utilize the complex noncontingent swap method or, as an alternative, adopt a mark-to-market method. In practice, most taxpayers utilize a mark to market approach. This approach requires a taxpayer to annually include as “other” ordinary income any unrealized appreciation each year. Unrealized depreciation would also need to be taken into account as an expense. However, to the extent the taxpayer was not engaged in a trade or business, this amount would be included as a Section 212 deduction. Significant “whipsaw” can result for any taxpayer not engaged in a trade or business, as a taxpayer may be required to pick up ordinary income in a year of appreciation but not get the benefit of the deduction for a future’s year depreciation.

The newly issued proposed regulations do not address whether or not a CDS would be required to adopt the timing and inclusion rules of contingent nonperiodic payments. Presumably, if a CDS contract is now considered to be a NPC, the argument not to consider these as contingent nonperiodic payments are much weaker than were prior to issuance of the new proposed regulations.

To the extent that a taxpayer has not treated a CDS as a NPC, they may need to consider the application of the change in accounting method rules and filing requirements.

Exclusion of Swaps from Section 1256

The proposed regulations have clarified that “swaps” and “similar arrangements” are excluded from Section 1256. There has been previous uncertainty as to the treatment of swaps under provisions of the Dodd-Frank Act.

When is the effective date of the Proposed Regulation?

A hearing is scheduled on the proposed regulation for January 19, 2012. The regulations are intended to be effective for contracts entered into on or after the date the final regulations are published.

For further questions, please contact Saltmarsh, Cleaveland & Gund (850) 435-8300.

© 2011 EisnerAmper LLP

Featured Video View all CPA Videos

Qualifying for the Research and Development Tax Credit

The R&D tax credit is a Federal incentive provided by Congress to U.S. Manufacturers to offset the cost of innovating. As it is a credit as opposed to a deduction, it is a dollar for dollar offset to your tax liability. Also, since the credit is open for the 3 immediately preceding tax years, filing a claim for refund for the credit for past years can be a direct cash infusion into your company. This video explains the tax credit and how Saltmarsh can help your business claim the credits you deserve.

Archived News View all CPA News & articles

More News...

Follow our feeds.

Pensacola CPA on Facebook Pensacola CPA on LinkedIn Pensacola CPA RSS Feed Pensacola CPA on Twitter Pensacola CPA on YouTube

Areas of Expertise

Locations

Pensacola
CPA and Bank Consultants - Pensacola, FL 900 N. 12th Avenue, Pensacola, FL 32501
Local Phone: 850.435.8300 • Fax: 850.435.8352
Fort Walton Beach
CPA and Bank Consultants - Fort Walton Beach, FL 34 Walter Martin Rd, Ft Walton Bch, FL 32549
Local Phone: 850.243.6713 • Fax: 850.243.4137
Tampa
CPA and Bank Consultants - Tampa, FL 201 N. Franklin St., Ste 2720, Tampa, FL 33602
Local Phone: 813.287.1111 • Fax: 813.207.0201
Orlando
4767 New Broad Street, Ste 222, Orlando, Florida 32814
Phone: 800.477.7458

Resources

Quick Downloads

Toll Free: (800) 477-7458 • Email: info@saltmarshcpa.com

Website by Grendelfly Studio - A Division of SC&G

(c) 2013 Saltmarsh, Cleaveland & Gund • Certified Public Accountants And Consultants • Serving Florida And The Southeast