A Request for Guidance and Relief from the Timely Reporting Requirement of Section 1.482-1(a)(3) of the Internal Revenue Regulations1
By William H. Quealy, Jr.2
I. EXECUTIVE SUMMARY
Unless otherwise authorized by statute or regulation, taxpayers generally are bound to account for the income realized from transactions with commonly controlled entities based on the form and terms of the transactions as executed.3 Section 482 of the Internal Revenue Code of 19864 grants the Secretary the discretion to reallocate the income, expense or credits from transactions among commonly controlled entities where necessary to prevent the evasion or avoidance of tax or to more clearly reflect income.5 The Secretary and the courts are in agreement that Section 482 does not authorize taxpayers to depart from the terms of their controlled party transactions when reporting taxable income nor does it grant taxpayers a right to compel the Secretary to do so.6
The Secretary promulgated Section 1.482-1(a)(3) which allows taxpayers to disregard the terms of their controlled party transactions if necessary to report an arm’s length result. Under the terms of the delegation of Section 482 authority, taxpayers may report an increase to the income from controlled party transactions at any time, but they may only report a decrease to the income from controlled party transactions on a timely original return. This is referred to herein as the "timely reporting requirement" and is imposed solely by regulation. The timely reporting requirement may be waived at the Commissioner’s discretion.