The De Minimis Safe Harbor under the Repair Regulations
Among the more welcome changes adopted in the final tangible property repair regulations (T.D. 9636) is the de minimis rule related to the acquisition or production of property (Regs. Sec. 1.263(a)-1 (f)). This rule provides for a safe harbor applied at the invoice or item level, based on the policies used by a taxpayer for its financial accounting books and records. A taxpayer is generally required to capitalize amounts paid to acquire or produce a unit of real or personal property However, under the de minimis rule, a taxpayer may elect to expense the cost of acquired or produced tangible personal property that does not exceed a certain dollar amount per invoice or item. For taxpayers with an applicable financial statement, the amount paid for property may not exceed $5,000; for those without an applicable financial statement, the amount may not exceed $500. An applicable financial statement is a financial statement: (1) filed with the SEC (Form 10-K), a certified audited financial statement used for credit purposes, for reporting to shareholders or partners, or any other substantial nontax purpose; or (2) a financial statement (other than a tax return) required to be provided to a federal or state government or agency (other than the SEC or IRS). The de minimis threshold is applied at the invoice level or, if multiple items appear on a single invoice, at the item level. Additional costs, such as delivery or installation fees, that appear on the same invoice as the property must be included in the property's cost. If these additional costs are not included on the same invoice as the property, the taxpayer may, but is not required to, include the additional costs in the property's cost. When multiple items of property are purchased on one invoice and additional costs are stated as a single sum, the taxpayer must use a reasonable method to allocate the additional costs among each item of property in computing the per-item cost (Regs. Sec. 1.263(a)-1(f)(3)(i)). For example, assume a taxpayer with an applicable financial statement purchases 10 computers at $5,000 each and receives an invoice for $51,000, which includes a delivery fee of $1,000. Pro rata allocation of the delivery fee brings the cost of each computer to $5,100, which exceeds $5,000; therefore, the taxpayer may not apply the safe harbor to expense its cost. However, had the delivery fee legitimately appeared on a separate invoice (e.g., an invoice from the freight company instead of the seller), the taxpayer could apply the safe harbor and deduct the cost of the computers, as well as the delivery fee. An anti-abuse rule (Regs. Sec. 1.263(a)-1(f)(6)) prohibits a taxpayer from manipulating a transaction to avoid the applicable per-item limit. Thus, a taxpayer cannot separate the cost of a machine into two components (such as a motor and its housing) on two invoices to avoid the dollar limit. …