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2014 Real Estate Industry Update Breaking new boundaries: Paving the way for the future Diana Laing
Chief Financial Officer
American Homes 4 Rent
Dr. Richard Green
Director
USC Rusk Center for Real Estate
Lauralee Martin
President & Chief Executive Officer
HCP, Inc.
Bob O'Brien
U.S. and Global Deloitte Real Estate Leader
Deloitte & Touche LLP
Jason Keller
Managing Director
Oaktree Capital Management
2014 Real
Estate Update
Breaking New
Boundaries: Paving
the way for the future
Chris Dubrowski
Industry Professional Practice Director
Deloitte Real Estate
Deloitte & Touche LLP
Johnnie Akin
National Office Senior Manager
Deloitte Real Estate
Deloitte & Touche LLP
3 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Agenda
Standards Setting
Projects Impacting Real Estate
Regulatory Update
4 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• This presentation does not provide official Deloitte & Touche LLP
interpretive accounting guidance
• The views expressed are solely those of the presenter and are not
formal Deloitte & Touche LLP positions
• Check with a qualified advisor before taking any action
• See slides at the end for additional resources available on these topics
Disclaimer
6 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Convergence progress in 2013 and 2014 • Approximately 30 FASB meetings and 20 IASB meetings
• In addition, approximately 10 Joint FASB/IASB meetings
• The majority of the FASB meetings included convergence topics
• The Boards have also held several education sessions and roundtables
• Project Current Path
− Revenue recognition (Issued) Converged
− FI - classification and measurement Diverged
− FI – impairment Diverged
− Leases Partially Converged
− Investment companies (Issued) Substantially Converged
− Consolidation Diverged
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Convergence challenges
Hans Hoogervorst (IASB Chairman):
• "The FASB decided to stick to current American practices and leave the
converged position. It's a pity. Convergence would have allowed the US to make
the ultimate jump to IFRS. But nobody can force it to do so; if it wants to stick
with US GAAP, that's its choice. But IFRS moves on - we have a large part of the
world to take care of."
Ian Mackintosh (IASB Vice-Chairman):
• “…we have also seen failures in convergence in other important areas, such as
in the financial instruments project…In various aspects of this project…we have
seen the boards sit around the table and reach a converged outcome, only to
see that agreement melt away.”
Chris Cox (former SEC Chairman):
“The first thing we should give up is the counterproductive fiction that the United
States is going to replace GAAP with IFRS. The prospect of full-scale IFRS in our
lifetimes has ceased to be. It is bereft of life. It rests in peace.”
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FASB member IASB members Staff
Ja
n E
ng
str
om
(Sw
ed
en
)
Ma
rc S
eig
el
Sta
ff
Sta
ff
Sta
ff
Sta
ff
Sta
ff
Pat
Fin
ne
ga
n
(Un
ited
Sta
tes
)
Da
ryl
Bu
ck
Da
rre
l S
co
tt
(So
uth
Afr
ica)
Larry Smith Zhang Wei-Guo
(China)
Martin Edelmann
(Germany)
Steve Cooper
(United Kingdom)
Hal
Schroeder Jim Kroeker
Chungwoo
Suh (Korea)
Mary Tokar
(United States)
Gary Kabureck
(United States) Tom Linsmeier
Sue Lloyd
(Australia / U.K.)
Philippe Danjou
(France)
Ta
ka
tsu
gu
Oc
hi
(Jap
an
)
Am
aro
Go
me
s
(Bra
zil)
FA
SB
Dir
ec
tor
Sta
ff L
ea
d P
M
Ru
ss
Go
lde
n
Ha
ns
Ho
og
erv
ors
t
(Ne
the
rla
nd
s)
Ian
Ma
cin
tos
h
(Au
str
alia)
Sta
ff L
ea
d
IAS
B D
ire
cto
r
IASB and FASB Meeting —
March 18–19, 2014
Why this is so difficult
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Projects impacting the real estate industry
Project Completed Nearly
Completed
Being
Worked On
On the
Horizon
Revenue recognition
Lease accounting
Financial instruments –
classification and measurement
and impairment
Investment companies
Clarification on the definition of a
business
Discontinued operations
Consolidations
Going concern
Simplification projects
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Current GAAP is inconsistent – Commercial property acquisitions are
generally business combinations, but dispositions are treated as sales of
real estate assets
Asset or entity-based guidance
The Real Estate Conundrum
Governing guidance:
ASC 360-20, Real Estate Sales
Based on a “CONTINUING INVOLVEMENT” model
Governing guidance:
ASC 805, Business Combinations
Based on a “CONTROL” model.
Required to assess acquisitions as businesses and sales as assets.
Sales of Real Estate Acquisitions of Real Estate
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Summary of other differences
Asset Business
Contingent
Consideration
Not recognized until the
contingency is resolved
Recognized at the acquisition
date fair value while changes in
estimate are trued-up through
earnings after the acquisition
date
Acquisition-related
costs
Capitalized Expensed
Initial measurement Allocated cost on a relative fair
value basis
Measured at fair value
Goodwill N/A Recognized as an asset and
reassessed annually
Bargain purchase
gain
N/A
Recognized immediately in
earnings as a gain
Asset or entity-based guidance
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The FASB has added a project that will:
• Determine whether asset-based or business-based accounting literature would apply to
entities that substantially consist of non-financial assets (e.g., in-substance real estate)
• Reassess the definition of a business – project may be narrow or wide ranging
The project will address the existing accounting differences between
asset-based and business-based guidance that include:
• The measurement and timing of gain or loss recognition on sales of assets when
continuing involvement exists, including situations whereby companies sell partial
interests; and
• The measurement of retained interests that occur when a company sells a partial
interest in an asset
For the recently finalized revenue guidance, from whose perspective do
you evaluate “control” in a partial sale? If I sell you a part of an asset and
we now have joint control, I have given up “control” but you haven’t taken
“control”!
Asset or entity-based guidance
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Conflict of accounting treatment on partial sales
Transaction ASC 810 (FAS 160) Accounting Treatment
ASC 360-20 (FAS 66) Accounting Treatment
Sell 50% interest and lose control
Gain on the 50% interest sold AND for
the difference between FV and
carrying amount of 50% retained
Business
Gain only on the 50% interest sold; retained interest stays at book value
Asset
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REIT has a wholly-owned subsidiary whose sole asset is a building that
has a carrying value of $800 and a fair value of $1,000. REIT agrees
to sell 20% of its interest to an investor for $200. REIT continues to
have a controlling interest and consolidates the subsidiary.
Question: What literature governs REIT’s accounting for this
transaction?
Question: What is REIT’s accounting?
In the case of a partial sale that does not result in deconsolidation, both
ASC 810 and ASC 360-20 would prohibit the derecognition of the asset
and the recognition of the gain at the transaction date.
Partial sale guidance – control retained
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Under ASC 810-10, the noncontrolling interest would be initially measured at the
investor’s proportionate share of the subsidiary’s book value with the difference
between the amount paid and the amount recognized for the noncontrolling
interest being recorded to APIC.
The journal entry to record the transaction:
Cash $200
Noncontrolling interest (800 X 20%) $160
Additional paid-in-capital 40
Under ASC 360-20, the sale of in-substance real estate would require the gain on
sale be deferred and recognized on a pro-rata basis over the life of the asset or
when the asset is sold.
The journal entry to record the transaction:
Cash $200
Noncontrolling interest $160
Deferred gain 40
Partial sale guidance – control retained
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Identify the contract
with a customer
(Step 1)
Identify the performance obligations
in the contract
(Step 2)
Determine the
transaction price
(Step 3)
Allocate the transaction
price to performance obligations
(Step 4)
Recognize revenue as the entity satisfies a
performance obligation
(Step 5)
Overview
ASU 2014-09 Revenue (Issued May 28, 2014)
Core principle: Recognize revenue to depict the transfer of promised goods or
services to customers in an amount that reflects the consideration the entity
expects to be entitled in exchange for those goods or services
This revenue recognition model is control based which differs from the risks and
rewards approach applied under current U.S. GAAP.
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− Applies to an entity’s contracts with customers
− Applies to a transfer or sale of nonfinancial assets (such as real estate)
that do not meet the definition of a business. Also includes “in-
substance assets”
− Partial sales of nonfinancial assets are not addressed
− Does not apply to real estate sale-leaseback transactions (continue to
follow current GAAP)
− Does not apply to:
• Lease contracts (ASC 840),
• Insurance contracts (ASC 944),
• Certain financial instruments and other contractual rights or obligations,
• Guarantees (other than product or service warranties), and
• Nonmonetary exchanges to facilitate a sale to another party
Scope
Revenue ASU
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• Prescriptive guidance provided by ASC 360-20 (Sales of Real Estate) and
ASC 605 (Construction) will be lost:
− Buyer’s financial commitment - Guarantee buyer return
− Collectibility of transaction price - Partial sales
− Continuing involvement by seller - Condominium sales
− Sales to limited partnerships/joint ventures
• Will likely result in more transactions qualifying as sales of real estate with
gains being accelerated
Example: Consider probability of a conditional repurchase obligation outside the seller’s
control
• Collectibility threshold was changed
Must be probable (not necessarily reasonably assured) that the entity will ultimately
collect the consideration it is entitled to receive
Potential effects on real estate Elimination of bright-line tests
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Revenue project Effective date
Early application is
NOT permitted
• Public entities:
‒ Annual reporting periods beginning after December 15, 2016, including interim
reporting periods therein (FY 2017)
‒ Early application not permitted
• Non-public entities:
‒ Annual reporting periods beginning after December 15, 2017, including interim
reporting periods therein (FY 2018)
‒ May elect to adopt earlier under one of two alternatives, which for a calendar
year entity would be:
• The public company effective date
• Fiscal year end 2017, and interim periods during 2018
• At the October 31, 2014 meeting, James Kroeker, the FASB vice
chairman, emphasized that the Board is considering whether to
defer the effective date and noted that a decision will be made no
later than the second quarter of 2015.
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Revenue project Transition options
January 1, 2017
Initial Application Year
2017
Current Year
2016
Prior Year 1
2015
Prior Year 2
New contracts New ASU
Existing contracts New ASU + cumulative
catch up
Legacy GAAP Legacy GAAP
Completed contracts Legacy GAAP Legacy GAAP
cumulative catch-up
• Full Retrospective Approach
‒ Restate prior periods in compliance with ASC 250
• Modified Retrospective Approach
‒ Apply revenue standard to contracts not completed as of effective date and
record cumulative catch up
‒ Public entity example:
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Revenue recognition Homebuilder example
Homebuilder has a 100 unit project and sells the individual homes over a
5 year period (20 homes each year) to individual homebuyers for $200
each. The homes are sold with a promise to complete certain
amenities (e.g., a school, roads, lit sidewalks, or a pool/clubhouse) by
the middle of year 3. Cost of each home is $80/unit and cost of
amenities is $20/unit. Assume no seller provided financing or other
forms of continuing involvement.
Step 1: Identify the contract with the customer
The contracts with the individual homebuyers are the relevant contracts.
Step 2: Identify the performance obligations in the contract
Scenario 1: The only performance obligation is the completion of the individual unit.
Scenario 2: There are two performance obligations. First is the delivery of the individual
unit and second is the delivery of the amenities.
Step 3: Determine the transaction price
Transaction price is $200 per unit or $20,000 in total.
24
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Revenue recognition Homebuilder example
Homebuilder has a 100 unit project and sells the individual homes over a 5 year period (20 homes each
year) to individual homebuyers for $200 each. The homes are sold with a promise to complete certain
amenities (e.g., a school, roads, lit sidewalks, or a pool/clubhouse) by the middle of year 3. Cost of
each home is $80/unit and cost of amenities is $20/unit. Assume no seller provided financing or other
forms of continuing involvement.
Step 4: Allocate the transaction price to the performance obligations (Two possible scenarios
based on Step 2)
25
Single Performance
Obligation
Multiple Performance
Obligations
Per Unit Total Per Unit Total
Total cost $100 $10,000 $100 $10,000
Home cost $80 $8,000 $80 $8,000
Amenities cost $20 $2,000 $20 $2,000
Total revenue $200 $20,000 $200 $20,000
Home revenue $200 $20,000 $160 $16,000
Amenities revenue $40 $4,000
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Revenue recognition Homebuilder example
Homebuilder has a 100 unit project and sells the individual homes over a 5 year period (20 homes each
year) to individual homebuyers for $200 each. The homes are sold with a promise to complete certain
amenities (e.g., a school, roads, lit sidewalks, or a pool/clubhouse) by the middle of year 3. Cost of
each home is $80/unit and cost of amenities is $20/unit. Assume no seller provided financing or other
forms of continuing involvement.
Step 5: Recognize revenue when (or as) a performance obligation is satisfied
Single Performance Obligation Scenario
Multiple Performance Obligation Scenario
26
Year 1 Year 2 Year 3 Year 4 Year 5
Home sales $4,000 $4,000 $4,000 $4,000 $4,000
Cost 2,000 2,000 2,000 2,000 2,000
Gross margin $2,000 $2,000 $2,000 $2,000 $2,000
Year 1 Year 2 Year 3 Year 4 Year 5
Home sales $3,200 $3,200 $3,200 $3,200 $3,200
Amenities sales 0 0 2,400 800 800
Total sales 3,200 3,200 5,600 4,000 4,000
Cost 2,000 2,000 2,000 2,000 2,000
Gross margin $1,200 $1,200 $3,600 $2,000 $2,000
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Revenue recognition To-Do’s
• Key words from the standard and its interpretations:
• Judgments
• Estimates
• Disclosures
• Assess all revenue streams
• May need to dual-track revenue streams starting 1/1/2015
• Consider capability of systems, changes to processes and
staffing
• Share preliminary conclusions with your advisor
27
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FASB classification and measurement
Financial instruments
• Convergence abandoned
• Approach retains existing U.S. GAAP with limited changes
− Equity instruments can no longer be accounted for as available
for sale at fair value through OCI; instead accounted for at FV
through earnings. AFS criteria will only apply to debt
instruments.
• Practicability exception allows measurement of qualifying equity
securities at cost minus impairment, plus/minus changes in
observable prices
− Financial liabilities – fair value option retained with changes in
FV attributable to instrument-specific credit risk recognized in
OCI
• Final ASU anticipated in 2015
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Classification and measurement Equity method investments
• A single step impairment model has been discussed for
equity method investments (fair value through net income)
• Would have replaced the other-than-temporary model
currently in place
• However, the FASB recently decided by a close margin that
the OTTI model will be retained; equity method investments
are now scoped out of this project
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Impairment
Financial instruments
• Converged approach abandoned
• Current expected credit loss model (CECL) applies to instruments
carried at amortized cost (like loans and H-T-M debt securities)
• Replaces existing impairment models in GAAP, which generally require
that a loss be “incurred” before it is recognized
• Requires impairment to be recorded on existing financial assets on the
basis of the current estimate of contractual cash flows not expected to
be collected at the reporting date
• No impairment allowance is recognized on a financial asset in which the
risk of nonpayment is greater than zero yet the amount of loss would be
zero (i.e. where FV of collateral for a collateral dependent loan is greater
than BV of the loan).
• Final ASU anticipated in 2015
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Definition and typical characteristics of an
investment company – ASU 2013-08
Multiple
investments
Obtains funds from
investor(s) and provides
professional investment
management service
Business purposes &
substantive activities are to
invest funds for returns from
capital appreciation,
investment income, or both
Do not obtain benefits from
their investments that are
either:
• Other than capital
appreciation or investment
income
• Not available to other
noninvestors / not normally
attributable to ownership
interests
Multiple
investors
Equity or
partnership
interests
Manages and
evaluates its
investments on a
fair value basis
Investment
Company
Additional five
characteristics
(Not required to
meet all of these
criteria)
Unrelated
investors
Required Attributes
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Real Estate Scope Exception
Investment companies
• ASU explicitly states that the “Board does not intend for the
amendments. . . to change practice for real estate entities for which it
is industry practice to issue financial statements using the
measurement principles in Topic 946.”
• In practice:
o If entity has historically been a fair value reporter and does not meet
definition of an investment company, typically not seeing changes to
go to historical cost
o If entity has historically been a historical cost reporter and meets
definition of an investment company, typically needs to change to
fair value reporter
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Lease project
What is wrong with the current lease accounting? – Bright-line tests bring structuring opportunities
– Too many liabilities off-balance sheet
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Lease project
Wall Street Journal, September 23, 2004
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Joint leases project Timeline
Q3 2010
Exposure Draft (ED)
2011-2013 Re-deliberations
and 2nd ED
2014
Re-deliberations
Q3 2015 ?
Final Standard
39
2014 re-deliberations are focusing on:
• Definition and scope • Subleases
• Lease classification • Measurement
• Lessee accounting • Disclosure
• Lessor accounting • Effective Date
• Sale and leaseback transactions
A final standard is not expected until the second half of 2015 with
effective date no sooner than 2017
FASB and IASB are no longer converged on lessee accounting
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Lessor accounting… “And where I did begin, there I shall end” - Shakespeare
40
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• Classification criteria would be similar to IAS 17
–Type A lease: generally consistent with today’s sales-
type/direct-finance leases
–Type B lease: generally consistent with today’s operating
leases
Lessor accounting model
Existing lessor accounting retained with minimal
changes:
Leases project
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Overview • Most leases on balance sheet (similar to today’s capital leases)
Initial Measurement • Introduces the right-of-use (ROU) asset approach under which
a lessee records:
ROU asset – right to use the leased asset
• Present value (PV) of lease payments + lessee’s initial direct costs
• Recognize lease incentives as a reduction in the right-of-use asset
Lease liability – obligation to make lease payments
• PV of lease payments
Lessee accounting model Leases project
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Subsequent Measurement • ROU asset Boards are not converged on the subsequent measurement:
• Lease liability Amortized cost: Use the effective interest method
Leases project
FASB Approach IASB Approach
Dual-model approach – a lessee would
apply guidance similar to IAS 17 when
determining if a lease should be
classified as Type A or Type B
Single-model approach – a lessee
would account for all leases as a
financed purchase of the ROU asset
Type A Lease Type B Lease
Consistent with
today’s capital
leases - expense will
be front-loaded
Expense will be
recorded on a
straight-line basis
Lessee accounting model
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Would account for as a Type A lease when the lease…
Transfers ownership by end of lease term;
Includes a purchase option that the lessee is reasonably certain to
exercise; or
There is a transfer of substantially all of the risks and rewards of
ownership of the asset
If it is not conclusive that all of the risks and rewards incidental to asset
ownership are transferred, then the asset would be classified as a Type B lease.
Lease classification Leases project
Although the evaluation is similar to current U.S. GAAP, items to
consider include: • Land and other elements would evaluated separately unless the land element
is clearly immaterial. This may result in more bifurcation of real estate leases
than current U.S. GAAP.
• The bright-line rules in current U.S. GAAP will be eliminated (i.e. 75% rule).
CLASSIFICATION CRITERIA
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Leases project Real estate companies as lessees
45
• Examples of instances where an entity could be the lessee:
• Ground leases
• Corporate office space
• Equipment leases (i.e., copiers, printers, vehicles, postage meters,
etc.)
• Consider taking inventory of all such leases
• Assess materiality
• Share preliminary conclusions with auditors
• Monitor new leases where entity is the lessee
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Leases project Initial direct costs
The Boards decided that only incremental costs would qualify for
capitalization
• Costs would be incremental if they would not have been incurred
absent the lease being obtained. For example:
• Commissions paid upon execution of a lease would be
incremental (internal or external)
• Salaries of leasing and supporting departments would not be
incremental
Lessees:
• Include initial direct costs in initial measurement of lease right-of-
use asset
Lessors:
• Type A leases – include in lease receivable
• Type B leases – recognize over lease term (same basis as
income)
46
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NAREIT letter to FASB on initial direct costs
• Would be a step backward in reporting the economics of investment property
performance if direct costs of internal leasing staff were accounted for
differently from cost of external leasing resources
• Proposed accounting could force companies to abandon the most effective
leasing structure (internal leasing staff) for an external structure or
dramatically change internal compensation arrangements
• Given the wide diversity in accounting treatment for costs within US GAAP
(e.g. commitment fees, credit card fees and costs, loan syndication fees,
loan origination fees and direct loan origination costs, interest costs, etc.),
recommend FASB forego further evaluation of accounting for initial direct
costs within the leases project
47
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Leases project Initial direct costs
NAREIT met with FASB and meeting went something like this…
NAREIT: Requiring entities to expense direct costs of internal leasing
staff would cause our constituents to change the way they currently
do business.
FASB: Your constituents are currently capitalizing internal leasing
cost under current GAAP?
NAREIT: Yes. It’s industry standard to do so and changing current
GAAP would cause our constituents to change the way they currently
do business.
FASB: Wait…Your constituents are currently capitalizing internal
leasing cost under current GAAP?
48
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Consolidation Projects Overview and Timeline
IASB publishes ED 10
Dec 2008
June 2009
FASB issues FAS 167
FASB & IASB agree to develop single model
Oct 2009
Jan 2010
FASB defers FAS 167 for certain investment funds
Nov 2010
FASB holds public roundtables
FASB votes to converge on some, but not all aspects of IASB model
Jan 2011
Q4 2011
IASB issues Consolidation Standards; FASB exposes principal vs. agent
ExpectedQ1 2015
FASB to issue new consolidation guidance
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Sept 2013
FASB begins to redeliberate certain aspects of the model
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FASB’s consolidation project Determination of whether a limited partnership is a VIE
Throughout this section LLCs should also be considered partnerships
Potential impact • Partnerships that are currently evaluated under SFAS 167
− Partnership arrangements that include simple majority kick-out or
participating rights (rather than single partner rights) may no longer be
VIEs.
− Partnerships that do not include such rights would need to be
evaluated for consolidation under the VIE guidance.
Entities will need to update their consolidation analyses for all partnerships.
Although the consolidation conclusion may not change, a reporting entity may now
be required to provide the extensive disclosures for partnerships considered VIEs.
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Facts
• Investors A and B (two unrelated entities)
hold, together, all of the limited partner
interests in a partnership.
• Investor C is the general partner and has
the ability to make the most significant
decisions of partnership. Investor C does
not have significant equity investment at
risk.
• Investor C can be removed by a simple
majority of the limited partners.
Question
• Is the partnership a VIE?
Investor A Investor B
Partnership
Investor C
(GP)
FASB’s consolidation project Example 1: Determination of whether a limited partnership is a VIE
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Investor A Investor B
Partnership
Investor C
(GP)
FASB’s consolidation project Example 1: Determination of whether a limited partnership is a VIE
Answer under the Proposed Guidance
• No
Discussion
• Investor C’s investment does not qualify as
equity investment at risk. However, the
limited partners have substantive kick-out
rights (i.e. the power to direct the activities
would be considered held by the group of
holders of equity investment at risk).
• Accordingly, as a group, holders of equity
investment at risk have the power to direct
the activities of the entity that significantly
impact economic performance, and
assuming that they meet the other
conditions, the partnership would not be
considered a VIE.
• What if Investor C acquired Investor B’s LP
interest?
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Facts
• Investors A and B (two unrelated entities)
hold the limited partner interests in a
partnership.
• Investor C is the general partner and has
the ability to make the most significant
decisions of partnership. Investor C has
significant equity investment at risk and is
required to hold its substantive equity
interest to retain the GP rights.
• Investor C cannot be removed by the
limited partners.
Question
• Is the partnership a VIE?
Investor A Investor B
Partnership
Investor C
(GP)
FASB’s consolidation project Example 2: Determination of whether a limited partnership is a VIE
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Investor A Investor B
Partnership
Investor C
(GP)
FASB’s consolidation project Example 2: Determination of whether a limited partnership is a VIE
Answer under the Proposed Guidance
• Yes
Discussion
• The limited partners cannot remove the
general partner.
• Because the equity investors as a group do
not have kick out or participating rights, the
partnership is a VIE.
• This may be a significant change from the
prior conclusion.
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FASB’s consolidation project Determining whether a general partner consolidates a limited partnership
Partnership is NOT a VIE
Current guidance (ASU 2009-17): Proposed guidance:
General partner is presumed to control a limited
partnership unless a simple majority of the LPs
(excluding the GP’s related parties) has either:
(1) the substantive ability to dissolve the limited
partnership or otherwise remove the GP
without cause or
(2) substantive participating rights
General partner is required to consolidate the
partnership if it holds a simple majority of the
substantive kick-out rights or participating
rights
Partnership is a VIE
Current guidance (ASU 2009-17): Proposed guidance:
General partner consolidates if it has:
(1) power to direct the most significant activities
of the VIE and
(2) exposure to economics
General partner consolidates if it has:
(1) power to direct the most significant
activities of the VIE and
(2) exposure to economics
57 Copyright © 2014 Deloitte Development LLC. All rights reserved.
FASB’s consolidation project Consolidation of entities – other than partnerships/LLCs
• What about entities other than partnerships?
−For non-LPs that are currently VIEs, the VIE
assessment is not expected to change
−Only changes relate to primary beneficiary
assessment
• For non-LPs that are not considered VIEs, we are not
expecting a change to the consolidation model
58 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• Other areas affected by the proposed guidance include:
• Related party tie breaker test
• Whether fees paid to a decision maker or a service
provider should be considered when evaluating a
reporting entity’s economic exposure to a VIE
• Whether fees paid to a decision maker or service
provider represent a variable interest
• Effective for public companies for annual and interim
periods beginning after December 15, 2015 (FY2016
for calendar YE). Non public is FY 2017 for calendar YE
• FASB will allow early adoption for all entities
FASB’s consolidations project
59 Copyright © 2014 Deloitte Development LLC. All rights reserved.
1. Deferral conditions in ASC 810-10 (FIN 46(R)) are being
removed = fund managers need to evaluate all funds
2. Impacts all non wholly owned limited partnerships and limited
liability companies:
1. These will be VIEs unless simple majority kick out or
participating rights exist
2. Consolidation conclusion may not change due to power
and economics assessment in PB test
3. Additional disclosures under VIE guidance will be required
3. Reduces impact of fees in the primary beneficiary evaluation =
less consolidations
4. Related party primary beneficiary test considers indirect
interest on proportional basis = less consolidations
5. Every current arrangement should be reassessed under this
new guidance
FASB’s consolidations project FIVE key take-aways
61 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Discontinued operations
• ASU 2014-8 raises the threshold for reporting discops and aligns with
IFRS
– Represents a strategic shift that has (or will have) a major effect on
an entity’s operations and financial results
– Examples include:
– Disposal of a major geographical area
– A major line of business
– A major equity method investment (scope exception removed)
– Other major parts of an entity
• Disclosure requirements for significant component disposals that do
not meet discops requirements include:
• Pre-tax income for all periods presented for public companies
• Current period pre-tax income for private companies
62 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Discontinued operations
Transition and timing –
– Prospective application required
– Standard was issued April 10, 2014 and is effective on January 1, 2015 for
public companies and January 1, 2016 for private companies
– Early adoption permitted for disposals (or classifications as held for
sale) that have not been reported in financial statements previously issued
or available for issuance
Presentation of gains and losses on disposals that are not discontinued
operations:
– SEC Rule S-X 3-15 – Gain or loss on a sale or disposal by a REIT that does
not qualify as a discontinued operation is reported below Income from
discontinued operations
– ASC 360-10-45-5 – A gain or loss recognized on the sale of a long-lived
asset that is not a discontinued operation shall be included in income from
continuing operations before income taxes in the income statement of a
business entity. If a subtotal such as income from operations is presented, it
shall include the amounts of those gains or losses.
63 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Discontinued operations
Per ASC 360-10-45-5: SEC Rule S-X 3-15
Income from continuing operations
before gain on sale of real estate XXXXX
Income from continuing operations
before gain on sale of real estate XXXXX
Gain on sale of real estate XXX
Income from continuing operations XXXXX Discontinued operations: Income from discontinued
Discontinued operations: operations XXX Income from discontinued Gain on sale of real estate in operations XXX discontinued operations XX Gain on sale of real estate in discontinued operations XX Income from discontinued XXXIncome from discontinued XXX operations
Gain on sale of real estate XXX
Net income XXXXXNet income XXXXX
65 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• Provide guidance on assessing uncertainties about an
entity’s going concern presumption and related
disclosures
• Reduce diversity in the timing, nature, and extent of
disclosures in the footnotes
• Early adoption is permitted
ASU 2014-15 Going Concern Objectives and timeline
2008 ED
2013 ED
9/24/13
Comments due
ASU 2014-15 Issued 8/27/14
Effective annual periods ending
after 12/15/2016 (FY 2016)
66 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Substantial doubt Liquidation is imminent
Going concern ASU Background
• Going concern presumed until liquidation deemed imminent
• May have uncertainties about continuing as a going concern before
liquidation deemed imminent
• Previously no guidance in U.S. GAAP (only auditing standards)
• ASU extends going concern assessment to management. Entities
may need to implement and document their processes and controls
• Liquidation basis does not apply when liquidation follows a plan for
liquidation that was specified in the entity’s governing documents at
the entity’s inception (common in partnerships)
• Assessment period is 12 month from issuance date
Going concern disclosures required Liquidation basis of
accounting
68 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• SEC’s disclosure effectiveness project
• FASB's limited-scope projects to simplify U.S. GAAP in the
near term
Simplification projects Background and objectives
69 Copyright © 2014 Deloitte Development LLC. All rights reserved.
In an October 2013 speech Mary Jo White, SEC Chair, questioned,
“whether investors need and are optimally served by the detailed and
lengthy disclosures about all of the topics that companies currently
provide in the reports they are required to prepare and file.”
In a May 2014 speech Ms. White further asked whether “the information
companies are currently required to disclose is the most useful
information for investors and whether it is being provided at the right time
and in the right way.”
SEC Commissioner, Daniel Gallagher stated, “Today’s mandated
disclosure documents are no longer efficient mechanisms for clearly
conveying material information to investors.”
Simplification projects SEC project
70 Copyright © 2014 Deloitte Development LLC. All rights reserved.
SEC Commissioner, Kara Stein, “In an era where nearly all data is
electronic…a huge portion of public disclosures are presented in a
format that isn’t structured and easily accessible for analytics. I believe
the SEC should require disclosures to be timelier. News and business
move faster than ever before. Does it still make sense for investors to
wait for quarterly or annual statements that are delivered weeks or
months later?”
Simplification projects SEC project
71 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• SEC project to focus on identifying ways to improve disclosure
requirements in Regulations S-K and S-X
• Focus on business and financial disclosures that flow into Forms 10-
K, 10-Q, and 8-K and ultimately make their way into transactional
filings
• Staff will consider eliminating disclosure requirements that were
originally created to fill a void in US GAAP
• Project could incorporate increased disclosure into audit committee
activities
Simplification projects SEC project
72 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• SEC solicited support in July 2014 for modernizing EDGAR.
Proposals submitted included:
• “Company disclosure” or “core disclosure” system for certain
information that changes less frequently
• Reducing the number of form types and acceptable data formats
• Reducing the duplication of information collected
• Functionally improving communications between filers and the
SEC staff
• Improving the functional “look and feel” for a better filer and
investor experience
• Other innovative ideas through interviews with stakeholders
• Registrants encouraged to provide comments and input by posting
them to the SEC’s Website
Simplification projects SEC project
73 Copyright © 2014 Deloitte Development LLC. All rights reserved.
In a June 2014 speech, FASB Vice Chairman Jim Kroeker stated that,
“The object of [the Board’s disclosure framework] project is to remove the
clutter, and focus on making disclosures more useful to investors.”
FASB Chairman Russell Golden, “Investors tell [the FASB] that overly
complex financial reports often obscure important information they need
to make sound capital allocation decisions. Preparers tell us that a
complicated, unclear standard obscures its meaning. And even when an
accounting treatment is clear, applying it is lengthy, difficult, and
expensive. ”
Simplification projects FASB Project
74 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• FASB released an exposure draft in March 2014 on its decision
process for determining disclosure required in footnotes
• Comment period ended in July 2014 and FASB has begun
redeliberations
• Board has been considering a decision making framework for
financial statement preparers
• Intends to evaluate whether simplified accounting alternatives
available to private companies could be extended to public
companies
Simplification projects FASB Project
75 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Completed Projects
• ASU 2014-02, Accounting for Goodwill
• ASU 2014-03, Accounting for Certain Receive-Variable, Pay-Fixed
Interest Rate Swaps Simplified Hedge Accounting Approach
• ASU 2014-08, Reporting Discontinued Operations and Disclosures
of Components of an Entity
• ASU 2014-10, Elimination of Certain Financial Reporting
Requirements – eliminated concept of development-stage entities
On the Horizon
• Simplifying measurement of inventory – lower of cost or market
is out, net realizable value is in
Extraordinary and unusual items – separately present in
continuing operations or disclose
Presentation of debt issuance costs – presented as a direct
deduction from the liability similar to discounts and premiums
Simplification projects Other FASB Projects
78 Copyright © 2014 Deloitte Development LLC. All rights reserved.
PCAOB update Staff consultation paper on auditing accounting estimates and FV
measurements
Overview
Staff consultation paper issued August 19
‒ Area of many inspection findings
‒ Existing standards related to auditing estimates and fair value measurements
are:
Simplifying the Classification of Debt
“The PCAOB and foreign audit regulators have identified compliance with auditing
requirements related to fair value measurements as an area of continued concern,
and I support the staff's outreach efforts in this important area.”
- James R. Doty, PCAOB Chairman
• Auditing Fair Value Measurements and Disclosures
PCAOB AU Sec. 328
Orig. Issued January 2003
• Auditing Derivative Instruments, Hedging Activities, and Investments in Securities
PCAOB AU Sec. 332
Orig. Issued September 2000
• Auditing Accounting Estimates PCAOB AU Sec. 342
Orig. Issued April 1988
79 Copyright © 2014 Deloitte Development LLC. All rights reserved.
PCAOB update Staff consultation paper on auditing accounting estimates and FV measurements
• The staff paper suggests expanding the scope of audit work when
management uses a third party specialist or pricing services (i.e.
appraisals used in fair value estimates)
• Could require the auditor to “test the information provided by the
specialist as if it were produced by the company” or to “evaluate the
audit evidence obtained [from the third-party source] as if it were
produced by the company.”
• By suggesting that the auditor treat third party specialists as part of the
entity that they are auditing, the staff paper seems to be requiring
management to understand and evaluate the operating effectiveness
and sufficiency of controls at third party vendors.
• Simplifying the Classification of Debt
80 Copyright © 2014 Deloitte Development LLC. All rights reserved.
NAREIT’s response Staff consultation paper on auditing accounting estimates and FV measurements
“NAREIT’s member companies observe that external auditors currently
perform a significant amount of audit work surrounding estimates
pursuant to existing audit standards.”
“The suggestions in the Staff Paper would only expand the work that
auditors perform today, with no increase in the reliability or credibility of
the audited financial statements. Further, as discussed below, there is no
evidence that the existing auditing standards related to auditing
estimates fail to detect significant errors in financial statements.”
“While NAREIT understands the importance of auditing estimates, we
have to wonder whether the Staff Paper is attempting to reach a level of
precision via the audit process that contradicts the inherent nature of the
subject being audited.”
• Simplifying the Classification of Debt
81 Copyright © 2014 Deloitte Development LLC. All rights reserved.
PCAOB finding-example
In this audit, the Firm failed to obtain sufficient
appropriate audit evidence to support its audit opinion
on the effectiveness of ICFR. The Firm selected for
testing controls that included reviews of the
calculation of a significant portion of the issuer's
liability and the inputs to that calculation. The Firm
limited its testing of the operating effectiveness of
these controls to inquiring of issuer personnel,
obtaining certain documents used in the performance
of the reviews, and inspecting evidence that such
reviews had occurred, without evaluating whether the
controls operated at a level of precision that would
prevent or detect material misstatements.
82 Copyright © 2014 Deloitte Development LLC. All rights reserved.
PCAOB inspection findings
Internal Controls
• Revenue
• Valuation and existence of long-lived assets
• Fair value estimates
• Non-routine transactions
• Accounting for certain joint ventures and VIEs
• Evaluation and documentation of accounting issues
• Management review controls
• Information produced by the entity used in the performance of a control
Substantive Testing
• Revenue
• Fair value estimates
• Inventory
84 Copyright © 2014 Deloitte Development LLC. All rights reserved.
SEC review process
About 9,000 registrants
• Focus on 2,500 registrants that comprise 98% of market cap
All issuers reviewed at least every three years
Percentage of issuers reviewed:
Continuous reviews of large financial services registrants
Use of data analytics in the review of filings
Staff is listening to analyst/earnings calls, reviewing press releases and
websites and issuing comments
Comments are posted to EDGAR 20 days after completion of review (was 45
days)
FY08 FY09 FY10 FY11 FY12 FY13
38% 40% 44% 48% 48% 52%
85 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Fewer preclearances with the Office of the Chief Accountant
• 40% lower in 2013 compared to 2012; lowest level in 10 years
• Most common:
◦ Business combinations, consolidations, financial instruments, revenue recognition
• No compensation, leasing/RE, income taxes or miscellaneous
Concerned about accounting firms’ audit / internal control skillset versus the accounting skillset
• Each should be at the same level of prominence
• Careful that the pendulum hasn’t swung too far away from accounting
Dan Murdock, Deputy Chief Accountant
2013 AICPA SEC Conference
86 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“We note your disclosure of operating statistics for your same store
property portfolio on page XX. In future Exchange Act periodic reports,
please expand your analysis in the MD&A section to address any material
period to period changes in same- store performance, including the
relative impact of occupancy and rental rate changes, or advise.”
Non-traditional REITs also receive typical real estate
comments
87 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“In future Exchange Act periodic reports, with respect to leases expiring in
the next 12 months, please discuss any known trends regarding the
relationship between contractual rents on these expiring leases and
market rents.”
Lease expirations
88 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“We note that throughout MD&A, you oftentimes do not quantify the
absolute impact of the factors that have been cited as contributors to the
variances in your results. In certain circumstances, you cite offsetting
factors without quantification of their relative impact. We believe that the
quantification of all material factors on an absolute basis would provide
readers with a more complete understanding of the variances in your
reports results, as well as provide additional transparency with regard to
the impacts of offsetting factors.”
MD&A - analytics
89 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“We note that your discussion of cash flows from operating activities
primarily recites the information seen on the face of your cash flow
statement. Revise to disclose the underlying reasons for material changes
in your operating cash flows from operating assets and liabilities to better
explain the variability in your cash flows. Please refer to the guidance of
Section IV of SEC Release No. 33−8350.”
MD&A – liquidity and capital resources
90 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“You indicate that you classified the changes in restricted cash and
security deposits within cash flows from operating activities, based on the
fact that the cash flows associated with your security deposits are
predominantly operating in nature as they are directly related to your core
revenue generating activity. To the extent a majority of the security
deposits are returned to your lessees, please reassess your basis for
reflecting these activities within operating cash flows.”
Cash flow statement – restricted cash
91 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Homebuyer puts down a deposit:
Restricted cash (operating outflow) $100
Customer deposits (operating inflow) $100
No net impact on cash flows.
Upon delivery of the home:
Cash $100
Customer deposits (operating outflow) 100
Restricted cash (operating inflow) $100
Revenue (operating inflow) 100
Net impact is $100 operating inflow and $100 increase in cash.
If deposits are always returned to customer –
tenant deposits are FINANCING and restricted cash is INVESTING!
Customer deposits that will become revenue
92 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“Please supplement your disclosure in this section to clarify whether you
are currently in compliance with all covenants and also include a general
discussion of how failure to comply could impact your current business.
Please also include disclosure analyzing how the financial covenants in
your indebtedness may restrict your ability to incur additional debt to
finance your uses.”
Debt covenants
93 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“We note your disclosure related to upcoming capital expenditures for the
coming months. In future filings please include additional analysis of your
capital expenditures that have occurred by breaking down total capital
expenditures between new development, redevelopment/ renovations and
other capital expenditures by year. The total of these expenditures should
reconcile to the cash flow statement. In addition please provide a narrative
discussion for fluctuations from year to year and expectations for the
future.”
“Please include the amount of soft costs (i.e., payroll costs, interest
expense, etc.) capitalized for each year that are included in the table of
capital expenditures below the table.”
Capital expenditures
94 Copyright © 2014 Deloitte Development LLC. All rights reserved.
“Please tell us why these costs were reclassified…and whether this
represents a change in accounting principle, change in accounting
estimate or an error pursuant to ASC 250 and provide the basis for your
conclusion. Furthermore, please explain the circumstances that changed
from fiscal 2012 to fiscal 2013 that warranted the reclassification and why
you do not believe prior periods should be reclassified.”
Reclassifications
95 Copyright © 2014 Deloitte Development LLC. All rights reserved.
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Copyright © 2014 Deloitte Development LLC. All rights reserved.
Member of Deloitte Touche Tohmatsu Limited
2014 Real
Estate Update
Breaking New
Boundaries:
Paving the way
for the future Larry Varellas
Deloitte Tax LLP
Jim deBree
Deloitte Tax LLP
Todd LaBelle
Deloitte Tax LLP
98 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Tax Agenda
• Legislative Overview
• Inversions 101
• Tangible Property Regs.—Stretch Run
• What’s Really Real Estate?
• Marketplace Structures—”What’s Out There”?
• Other Hot Topics: What Are We Seeing?
100 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Where we are now…
Tax Item 2012 2013/2014
Ordinary income 35% 39.6% for singles earning more than $400K
($450K for couples)
Capital gains & qualified dividends 15% 20% for singles earning more than $400K ($450K
for couples)
Health care reform increases None 0.9% Medicare tax on “earned” income over
$200K for singles ($250K for couples)
3.8% tax on investment income over $200K for
singles ($250K for couples)
Bonus depreciation 50% of cost basis for eligible property 50% of cost basis in 2013
Expired in 2014 unless extended by
Congressional action
Estate and Gift tax 35% top rate;
$5 million exemption
(indexed for inflation)
40% top rate;
$5 million exemption
(indexed for inflation)
Selected Items
101 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• Key real estate provisions include, among many others:
− 15 year recovery period for leasehold improvements
− Bonus deprecation
− New Markets Tax Credit
− Several charitable and S corporation related extenders
• Permanent and 2 year deal dropped off the table.
Extenders Package-Retroactive and for
2014 Only
102 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Comparison of Real Estate Provisions in Leading Tax Reform Plans
Proposal Rates Expenditures Repealed Other Changes
White House
“Framework”
(corporate only)
• Corporate: 28%,
• Individual: N/A
• Many corporate tax
expenditures (limited detail)
• Lengthen depreciation schedules (no details)
• Ordinary treatment for carried interest
Camp (House) Proposal
• Corporate:25%
• Individual:
10%/25%/35% (high-
income taxpayers
subject to phase-out of
10% bracket)
• Many corporate and
individual tax expenditures;
• Deduction for real estate
taxes;
• Like-kind exchanges;
• Current law depreciation
rules (replacement similar to
ADS);
• Special rules for timber
(REITs)
• Limit mortgage interest deduction to $500k of
indebtedness, no deduction for home equity
loans;
• Phase-out of gain exclusion for sale of
principal residence;
• FIRPTA relief for REITs and RICs;
• Limit taxable subsidiaries of total REIT
assets to 20%
• LIHTC changes
• Ordinary treatment for some carried interest
Baucus (Senate)
Discussion Drafts Drafts do not address rates
• Like-kind exchanges;
• Current-law depreciation
rules
• 43-year depreciable life for real property
(pooling method for other property)
• Modify FIRPTA rules
Wyden-Coats (Senate)
• Corporate:24%
• Individual:
15%/25%/35%
• Many domestic tax
expenditures • Retain current mortgage interest deduction
Bowles-Simpson
(Commission on Fiscal
Responsibility and
Reform)
• Corporate: 1 bracket no
higher than 29%
• Individual: 3 brackets,
top rate no higher than
29%
• Almost all tax expenditures;
• Buy back tax expenditures by
increasing the rate
• 12% tax credit for all taxpayers ($500k
mortgage limit; no second homes)
103 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• Bipartisan agreement that FIRPTA rules should be relaxed and
several proposals
• Sen. Robert Menendez, D-N.J., and Rep. Kevin Brady, R-Tex.,
introduced the Real Estate Investment Act (S. 1181; H.R. 2870) in July
2013
− Companion bills would exempt certain REIT stock from FIRPTA
• Obama Administration’s last two budget blueprints have proposed
exempting foreign pension funds from FIRPTA
• Both tax reform draft proposals from Camp and Baucus include
FIRPTA reforms to increase foreign investment in United States
Proposed Changes to FIRPTA Rules
104 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• November elections are now the focus of the political narrative in
Washington with both parties staking their turf
• Camp draft changes the debate from running for office on the merits of tax
reform to defending the details of tax reform
• White House not engaged on details of comprehensive tax reform
• Two sides still far apart on revenue neutral versus revenue-raising tax
reform and distributional impact of reform
Tax Reform Remains a Heavy Lift
105 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• Despite the strong headwinds facing the taxwriters, conceptually everyone
still agrees that tax reform is necessary
• Tax reform is likely to be on the agenda until it is actually enacted; work
being done by the committees now is likely to form the basis of future
reform efforts
• Perhaps there is a window to work with a president looking to build a
legacy in last two years of his term
• If Congress does not enact comprehensive reform, focus may turn back to
“loophole closers” not tied to rate reduction, and Camp’s draft arguably
creates a ready-made list from which to choose
However, Ignoring Tax Reform Could Be a
Mistake
107 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• Recently, several U.S. companies have undertaken (or attempted to
undertake) inversion transactions
• Historically, intended outcomes from inversions include:
− Inverted companies are no longer considered U.S.-domiciled for tax purposes
− Typically done with foreign minnow swallowing U.S. whale, where foreign
ownership after is at least 20% of inverted parent company.
− Once the transaction is complete: non-U.S. growth is undertaken directly
under the new foreign parent and is generally not subject to U.S. corporate tax
(at 35%, currently among the highest in the world); historic non-U.S. earnings
could be accessed by new foreign parent without being subject to U.S.
corporate tax
Inversion Transactions Are Driving
Headlines
108 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• Treasury recently released guidance (Notice 2014-52) designed to curtail or
limit the benefit of inversions, in part by making it more difficult to reach the
20% foreign ownership threshold, and to access non-U.S. cash held under
the legacy U.S. parent, among other rules
• Legislation may be required in order to more effectively curtail inversions
• Key takeaway—the inversion discussion and debate illuminates a U.S.
corporate tax rate that is high compared to many countries, and may
stimulate progress toward tax reform for corporations and possibly pass-
throughs and individuals
Inversion Transactions, cont’d
110 Copyright © 2014 Deloitte Development LLC. All rights reserved.
• The recently finalized tangible property regulations will likely have a significant
impact on virtually every real estate company.
• At a minimum, some clients will have significant compliance requirements for 2014,
including several method changes and current year elections to consider.
• Limited number of companies implemented portion of regulations in 2012 and 2013
• The regulations are effective for tax years beginning on or after 1/1/14 and therefore
need to be adopted on 2014 tax returns. Note that for short tax years this may
apply for tax years ending before 12/31/14.
Background
111 Copyright © 2014 Deloitte Development LLC. All rights reserved.
1. Materials and supplies definitions
− Regulations define what constitute a material and supply. Cost recovery depends on
whether the material and supply is considered incidental (deduct as incurred) or non
incidental (deduct as used/consumed).
− Entities may be over deducting under their capitalization policy
− De minimis safe harbor election may help deal with accounting issues
2. Minimum capitalization threshold (de minimis safe harbor)
− An annual, irrevocable election for taxpayers with applicable financial statements (“AFS”)
and written capitalization policies to expense property in accordance with policies with a
ceiling of $5,000 (without AFS - $500 ceiling limit)
− Intended to provide for deductions consistent with the financial accounting capitalization
dollar threshold (allows for book/tax conformity)
− Consolidated groups may use consolidated AFS and/or written policies
Five focus areas for real estate
112 Copyright © 2014 Deloitte Development LLC. All rights reserved.
3. Capitalization versus repairs
− Unit of property defined as building and its structural components, and separate
building systems
◦ Many examples in the regulations
− Must capitalize amounts that improve a property
◦ Betterment
◦ Restoration
◦ Adaptation
− May apply de minimis safe harbor where applicable
− Annual election to follow book capitalization for amounts otherwise considered
deductible tax repairs
− Will likely need analysis
◦ If prior repair studies, to be reevaluated for additional capitalization
◦ If no prior repair studies, opportunities for additional deductions
◦ Can elect out annually, but only for balance sheet activities
Five focus areas for real estate
113 Copyright © 2014 Deloitte Development LLC. All rights reserved.
4. Routine Maintenance Safe Harbor
− The RMSH allows taxpayers to deduct certain costs that may otherwise be considered
“restorations” if the taxpayer reasonably expects to incur these costs more than once
during an asset’s ADS life
− Requires taxpayers maintain documentation supporting reasonable expectation of
performing activity more than once during ADS life
◦ For buildings and structural components thereof must reasonably expect to perform
activities more than once during 10 year period from Placed in Service date
5. Loss on Dispositions
− May elect to treat partial disposition as disposition of an asset (and thereby recognize gain
or loss); mandatory in certain circumstances
− By recognizing the loss, taxpayer must capitalize any related repair
− Deemed election; simply report on Form 4797
Five focus areas for real estate
114 Copyright © 2014 Deloitte Development LLC. All rights reserved.
Considerations
• At a minimum, compliance with the regulations will likely require significant analysis of current
and prior year information
Potential planning
• The de minimis election will likely be made by most taxpayers
• Many of our clients are surfacing significant deductions via the partial disposition rules
discussed in area 5 above.
• Many real estate taxpayers may want to consider the book capitalization election as well; note
it only covers balance sheet activities (anything capitalized for book purposes)
• As noted, method changes are made entity by entity, and method by method, providing great
flexibility to taxpayers
Potential action steps for 2015
• If election has not yet been made, need to complete by filing of 2014 tax returns
• Generally, most taxpayers that own tangible property should expect to file Form 3115 with
their 2014 tax returns if election was not made under the early adoption regimes in 2012 or
2013
Observations and analysis
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• Multiple public company REIT conversions in past 3 years.
• Non-traditional asset classes proliferate
− Data centers, cell towers, billboard advertising, electrical transmission, pipelines, prisons,
document storage, casinos
• Proliferation of private letter rulings concluding various assets qualify as real estate
• Extensive press coverage leads to congressional saber-rattling
• IRS convenes working group to consider what constitutes real estate
Market Trends
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• Proposed regs (§ 1.856-10) issued May 2014 clarify guidance on the definition of
"real property" for REIT asset test purposes
• The proposed regulations define real property to include:
− Land (including water and air space adjacent to land, and natural products and deposits)
− Inherently permanent structures (IPS)
◦ Buildings
◦ Other IPS
− Structural components
− Intangibles
New Proposed Regs.
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• Safe harbor lists of assets that qualify as real estate
− Buildings: houses, apartments, hotels, factory and office buildings; warehouses, barns,
enclosed garages, enclosed transportation stations and terminals, and stores.
− Other IPS: microwave transmission, cell, and broadcast towers, telephone poles, parking
facilities, bridges, tunnels, roadbeds, railroad tracks, transmission lines, pipelines, fences,
in-ground pools, offshore drilling platforms, storage structures (silos, O&G storage tanks),
stationary wharves and docks, outdoor advertising displays.
− Structural components: wiring, plumbing, heating/air, elevators/escalators, walls, floors,
ceilings, windows, doors, insulation, fire suppression systems, central refrigeration,
security systems, & humidity control
Safe Harbors
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• Assets not listed under the safe harbor provision must undergo a facts and
circumstances determination; factors include:
− The manner in which the asset is affixed to the property;
− Whether the asset is designed to remain in place indefinitely;
− Any damage the removal of the asset would cause to the asset or related real property;
− Any circumstances that suggest an other-than-indefinite period of being affixed;
− The time and expense required to remove the asset.
Facts & Circumstances
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• Recent proposed regulation defines real property ONLY for REIT qualification
purposes.
− No impact on depreciation, FIRPTA, etc.
• Adopts rules generally consistent with existing law.
− Clarify existing rules, rather than expand definitions.
− Unlikely to result in re-classifications of property.
• May help alleviate the need for REITs to obtain private letter rulings.
• Little impact on REIT quarterly compliance.
− Consider need for addition documentation for assets not on safe harbor list.
− Auditors may require additional work around “facts & circumstances” determinations.
Implications
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REIT Structures
Op Co / Prop Co--Birth and Spinoff of
REIT/Lessor REIT Conversion--Reduce Corporate Tax
• Corp contributions property to
newly-formed REIT and
establishes lease arrangement with
Op Co
• REIT shares distributed to
shareholders
• Ownership test concerns and other
benefits/complexities with REIT in
structure
• Corp makes a REIT election and
benefits from dividends-paid
deduction
• TRS is subsidiary of REIT − TRS established to hold non-
qualifying operations or to
provide services to customers
• Considerations around transfer
pricing, E&P distribution, and
built-in gain tax/period
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REIT Structures
• Corp contributes real property
to a newly formed Operating
Partnership.
• Operating Partnership leases
property to Corp.
• New REIT conducts offering
and contributes cash to the
Operating Partnership. Cash is
used to pay down debt.
• Disguised sale concerns, other
REIT issues
REIT Carve-Out--Monetizing Real Estate via
Debt Paydown UPREIT--Tax Deferred Transfer to Lessor
• Corp contributes real property
to a third party UPREIT
partnership in exchange for
partnership units. The units may
be convertible into Public REIT
shares.
• Corp leases real estate from
UPREIT.
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• LTIPs and profits interests, generally
• Debt allocation planning
− Proposed regulations limiting the use of bottom-dollar guarantees
− The current rules do not explicitly require that a partner/member’s net worth be
considered in evaluating whether the debt is allocable to the partner/member
− Proposed regulations fundamentally change how economic risk of loss is determined
under Treas. Reg. § 1.752-2
• Like-kind exchanges and the like
• Tax rate planning focus
− Rates are the highest in years
Other Hot Topics: What Are We Seeing?
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