Notice 2013-13 [PDF 22 KB] also requests comments as to whether, and under what circumstances, this dual-use property may be eligible for like-kind exchange treatment under section 1031.
As the IRS explained, dealers in construction and agricultural equipment purchase equipment from a manufacturer and generally seek to resell the equipment to customers as soon as possible.
However, to accommodate particular needs of its customers, a dealer may lease equipment to a customer before selling it.
- Dealers may reacquire their leased equipment upon termination of the lease and then hold the equipment for varying periods before re-leasing or selling it.
- Alternatively, the lessee may purchase the leased equipment rather than return it to the dealer upon termination of the lease.
- Dealers ultimately dispose of all construction and agricultural equipment by sales, exchanges, or abandonment.
The IRS has presumptively treated dual-use property held by a dealer as inventoriable property that is not eligible for depreciation deductions. To rebut this presumption, the IRS has required the dealer to show that the property was actually used in the dealer’s business and that the dealer looks to consumption through use of the property in the ordinary course of business operation to recover the dealer’s cost.
Also, construction and agricultural equipment that is treated as inventoriable dual-use property under the presumption is not eligible for like-kind exchange treatment under section 1031 because it is property held primarily for sale as defined by section 1031(a)(2)(A).
If, however, the presumption is rebutted and the construction and agricultural equipment is treated as depreciable dual-use property, it may be eligible for like-kind exchange treatment if the requirements of section 1031 are satisfied, including the requirement that the property is not held primarily for sale at the time of disposition.
As noted in today’s release, it can be difficult to discern whether dual-use property is held primarily for sale to customers in the ordinary course of business (i.e., inventoriable property) or as an asset used in a trade or business (i.e.,depreciable property).
Notice 2013-13 and request for comments
Notice 2013-13 states that Treasury and the IRS are considering guidance to clarify when construction and agricultural equipment that is dual-use property would be properly treated either as inventoriable property or as depreciable property. Such future guidance would be intended to minimize disputes between the IRS and dealers in construction and agricultural equipment.
Notice 2013-13 also states that Treasury and the IRS are considering guidance concerning whether exchanges of construction and agricultural equipment that is dual-use property would be eligible for section 1031 like-kind exchange treatment or not, if it is determined that the equipment is treated as “stock in trade or other property held primarily for sale.”
Specifically, the IRS has requested comments concerning:
- Which factors would be relevant in determining whether construction and agricultural dual-use property is inventoriable or depreciable property, or eligible for like-kind exchange treatment. Notice 2013-13 lists several factors that the IRS has previously considered in this area. Comments are also requested as to whether any of these factors ought to be evaluated separately for different classes or product lines of equipment.
- Whether a safe harbor or bright-line test would be helpful in resolving these issues, and what methodology or criteria would be used for a safe harbor or bright-line test.
- Whether guidance is needed for dealers of dual-use property—other than dealers in the construction and agriculture industries—regarding whether dual-use property is inventoriable or depreciable property, or eligible for like-kind exchange treatment.
- Whether the Industry Issue Resolution (IIR) process would be a useful approach to resolving these issues.
Written comments are due by June 16, 2013.