Final Regs. Issued Requiring Uncertain Tax Position Disclosure Statement

By Alistair M. Nevius, J.D.


On December 13, the IRS issued final regulations requiring some corporations to file a Schedule UTP, Uncertain Tax Position Statement, disclosing their uncertain tax positions when filing a return (T.D. 9510). The final regulations adopt regulations proposed in September 2010 (REG-119046-10), with one change relating to the effective date.

In January 2010, the IRS announced that it planned to start requiring certain corporate taxpayers to disclose uncertain tax positions annually in their federal income tax returns. For the 2010 tax year, corporations filing Form 1120, U.S. Corporation Income Tax Return, insurance companies filing Form 1120-L, U.S. Life Insurance Company Income Tax Return, or 1120-PC, U.S. Property and Casualty Insurance Company Income Tax Return, and foreign corporations filing Form 1120-F, U.S. Income Tax Return of a Foreign Corporation, must disclose their uncertain tax positions on Schedule UTP when the company or a related party issues audited financial statements and the company has both (1) one or more uncertain tax positions that must be reported on Schedule UTP (as defined by the IRS in the instructions for Schedule UTP) and (2) total assets equal to or in excess of $100 million. The total asset threshold will be reduced to $50 million in 2012 tax years and to $10 million starting with 2014 tax years. The IRS is considering whether to extend UTP reporting to other taxpayers beyond those noted above for 2011 or later years.

One commentator, concerned that Schedule UTP would require disclosure of privileged information, had requested that the regulations should state that a taxpayer may assert any applicable privileges and that disclosure of information on Schedule UTP would not constitute a waiver of any applicable privilege. The IRS did not adopt this recommendation in the final regulations.

The final regulations were effective December 15, 2010.

AICPA Concerns

Throughout the unveiling of the IRS’s uncertain tax position reporting plan, the AICPA has raised numerous concerns and made many specific recommendations regarding the IRS’s original proposal. These concerns include:

  • The burden that will placed on smaller taxpayers when the plan is fully implemented in 2014 because the threshold was not increased;
  • The potential burden the plan may place in future years on passthrough entities and tax-exempt organizations; and
  • Duplicative reporting and the ultimate benefit to the government of the information received.

According to Edward Karl, the AICPA’s vice president–taxation, the AICPA will continue to raise appropriate issues with the IRS on this matter and push for a study period as outlined in its initial comment letter and will continue to communicate its concerns and advocate for its members regarding the disclosure of uncertain tax positions.

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