Companies should work with their CPA to determine what the best estimated quarterly tax payment amount will be. If there’s no urgency to file this spring, a company should consider extending if possible—in the hopes that these changes are repealed in full or part. As CPAs wait for more guidance from the Treasury, taxpayers can still amend their 2020 and 2021 tax returns to generate unclaimed credits and potential cash refunds from prior years. And companies should look to see when they filed their 2019 tax return as the statute to amend and claim prior year refunds is three years from the filing date (2019 tax return filed in 2020). 

The R&D tax credits do expire if they’re unclaimed before statutes expire. It may be beneficial to roll the federal and state credits forward to be used to offset future income tax liabilities that may arise from the changes to Section 174 amortization. 

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The Tax Cuts and Jobs Act (TCJA), passed in December of 2017, amended Section 174 to require capitalization and amortization of all research and experimental (R&E) costs incurred in the tax years beginning after December 31, 2021 (2022 tax year for calendar filers). Dating back to 1954, taxpayers could deduct their expenses in the same year they were incurred on their tax returns. 

Despite the bipartisan support, and numerous bills and acts introduced to repeal or defer the amortization requirements to provide taxpayer relief in the short term, it is unclear whether a legislative fix will be signed into law anytime soon. The TCJA’s stated purpose was to be an economic incentive to bring jobs back to the U.S. Companies that have never had to separate their section 174 expenses from regular expenses will face a new challenge with the recent change.

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Previously, CPAs and taxpayers never had to determine whether or not the businesses expenses were Section 162 or Section 174 because all expenses were fully deductible on a tax return. However, many taxpayers businesses do fall under the Section 174 requirements and will need to amortize their research expenses on their tax returns accordingly. 

Taxpayers that have already claimed the R&D tax credit and are electing to forgo the 2022 R&D tax credit to instead fully deduct research expenses as Section 162 expenses (general business expense), should speak to a CPA and closely review your options. We anticipate the IRS will have a way to identify qualified Section 174 industries and taxpayers that are not amortizing their research expenditures. If you have previously claimed the R&D tax credit, suddenly claiming expenses under Section 162 (general business expense) will raise a red flag with the IRS. Research and development companies don’t generally stop doing R&D. R&D expenses should be claimed under Section 174.

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In order to understand the impact of this legislation, it’s crucial to understand the relationship between Section 174 Expenses and Section 41 Expenses. Section 174 Expenses are known as Research and Experimentation, or R&E Expenses. The expenses that fall under Sec. 174 can be divided into two categories, based on how essential each is to the activity being performed. Section 174 expenses encompass both direct and indirect research expenses (onshore and offshore) but are not necessarily eligible for the tax credit.  

Section 41 Expenses are known as Research and Development, or R&D Expenses. These are known as “Direct Research Expenses,” and are what usually come to mind when you imagine research and development.  Section 41 expenses is a subset of Section 174 expenses, focusing only on direct research expenses that qualify for the R&D Tax Credit. 

While the R&D tax credit calculations, including the definition of QREs, are not changing, Section 41 expenses will no longer be deductible on businesses tax returns in the year they are incurred. By default, Section 41 expenses are classified as a Section 174 expense. The new Section 174 rules require companies claiming R&D credits to capitalize and amortize their expenses on their tax return—potentially increasing their tax bill and reducing their anticipated cash flow. As a result, the calculation of Section 41 should be the starting point in determining the potentially qualifying Section 174 expenditures and should be done concurrently.

Section 174 will affect any industry and company that performs research but the software industry will likely take the biggest hit. The TCJA specifically called out software development expenses incurred in the tax years starting after December 31, 2021, as no longer tax deductible under Rev. Proc. 2000-50. Instead, these costs must be classified as Section 174 expenses and amortized as such. 

Therefore, any software development company that previously deducted its onshore and offshore software development related expenses will now have to capitalize and amortize these costs over five years, for domestic expenses, and fifteen years, for international expenses. Software businesses that retire, dispose, or abandon a software development related project will no longer be able to fully amortize the remaining capitalized costs.

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