FIN 48 Reserve for Uncertain State Tax Positions: Will It Ever End??
If your company is like most, it probably has a large FIN 48 reserve on its books for uncertain state tax positions. It is also probably growing year after year, after year, after year. The question is: when will it stop growing? Is it possible to make it stop growing or even eliminate it?
Well, as part of your annual FIN 48 review and analysis, all positions should be examined. As part of that process, your company should determine if any "triggering event" has occurred that would reduce or eliminate a reserve that is on the books. That "triggering event" may be a recent audit, court case, statutes, regulations, changes in administrative practices or policies by a state, a private letter ruling request or voluntary disclosure agreement (VDA) that your company entered into, or the expiration of the statute of limitations.
A large number of companies went through a thorough FIN 48 analysis when FIN 48 was enacted and implemented. Since then, the reserve related to those issues originally set-up have continued to grow under the guise that the exposure or issue related to the reserve still exists. The question is, does it still exist? The problem with uncertain state tax positions, often times, is that the authority or reason why the FIN 48 reserve was set-up in the first place was grey or vague. Meaning, there was no authority which directly addressed the issue; however, you couldn't get to the "more likely than not" standard to NOT record a reserve. Therefore, trying to identify a "triggering event" to reduce or eliminate the reserve today is more difficult (but not impossible).
If your company has a large and growing FIN 48 reserve for uncertain state tax positions, additional analysis may be able to identify "triggering events" to reduce or eliminate those reserves and lower your company's effective tax rate.
NOTE: Keep in mind that this is a complex analysis which may require substantial support and documentation. This is not as easy as 1, 2, 3.
Brian Strahle is the owner of LEVERAGE SALT, LLC where he provides state and local tax technical services to accounting firms, law firms and tax research organizations across the United States. He also writes a weekly column in Tax Analysts State Tax Notes entitled, "The SALT Effect." For more info, visit his website: www.leveragestateandlocaltax.com
You can reach Brian at firstname.lastname@example.org.
Because state and local taxes are deceptively simple and endlessly complicated.