IRS seeks to minimize documentation controversy with safe-harbor election for success-based fees

April 2011


The IRS on April 8 released Rev. Proc. 2011-29, which creates a safe-harbor election for taxpayers seeking to allocate success-based fees between facilitative and non-facilitative amounts for "covered transactions" described in Reg. sec.1.263(a)-5(e)(3). In lieu of requiring the documentation specified in Reg. sec. 1.263(a)-5(f) to support the allocation of these transaction costs, the new safe harbor allows a taxpayer to use a simplified, percentage-based allocation for determining which portion of success-based transaction costs must be capitalized because they facilitate the transaction and which portion may be treated as not facilitating the transaction. The new guidance, although limited in scope, is expected to relieve an area of significant controversy between taxpayers and the IRS regarding the type and extent of documentation needed to substantiate such an allocation.

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