Summary
The FASB received over 400 letters representing more than 1,000 companies’ concerns about implementation issues related to FASB Interpretation #48 (FIN 48). The vast majority of the letters requested a deferral of the effective date of the new Interpretation; fiscal years beginning after December 15, 2006 (i.e., the quarter ending December 31, 2007 for calendar year companies). The FASB voted overwhelmingly not to defer the effective date. This means that most companies' financial statement will be affected beginning Q1 of 2007.
Analysis
Despite the protests of hundreds of companies, the FASB refused to defer the effective date (generally, Q1 of 2007) of FASB Interpretation #48 (FIN 48). The Interpretation requires companies to identify and quantify all of their "uncertain tax positions" and accrue liabilities accordingly. The Interpretation will affect earnings as well as the balance sheet presentation.
Uncertain tax positions exist because of certain ambiguities in the tax code. Generally, a taxpayer must only have a "realistic possibility" of prevailing in a tax matter in order to avoid the imposition of penalties. Therefore, taxpayers often take aggressive tax positions in their tax return filings. Some companies are less aggressive and others are more aggressive; this is often driven by management's tolerance for uncertainty and the nature of a company's business activities.
Beginning in 2007, all public companies will have to comply with the provisions of FIN 48. FIN 48 will generally result in the recording of more liabilities for uncertain tax positions than its predecessor, Financial Accounting Standard ("FAS") 5. Initially, companies will be required to increase their liabilities for existing uncertain tax positions with a corresponding adjustment to retained earnings (as of January 1, 2007 for most companies). Thereafter, companies will be required to make adjustments to their liabilities for uncertain tax positions (both increases and decreases) and these adjustments may impact earnings, depending upon the nature of the tax position. Some companies will see an increase in the volatility of the their effective tax rates (ETR) while others will not. Generally, the more aggressive the company (with regard to tax positions), the more volatility it will experience in its ETR.
Not only will some companies experience more volatility in their ETRs, they will also experience an overall increase in their provision for taxes (i.e., income tax expense). This is likely for two reasons: First, companies that have been historically aggressive in their tax positions may decide to become somewhat less aggressive in their tax positions given the new accounting treatment for these positions; Second, the additional footnote disclosures required under FIN 48 may result in taxing authorities (e.g., the IRS) having greater success in detecting aggressive tax strategies.
Though not effective until Q-1 of 2007, SEC Staff Accounting Bulletin ("SAB") 74 requires companies to disclose the effects of FIN 48 in their 2006 K-1s (available in early March of 2007 for most companies). Therefore, the amount of the additional liability to be recorded in Q-1 of 2007 resulting from the transition from FAS 5 to FIN 48 should be disclosed (i.e., quantified in the tax footnote) in the 2006 K-1s.
