The Section 41 R&D Tax Credit Reporting Requirements: Preparing for New Form 6765

Proposed changes to Form 6765 Credit for Increasing Research Activities, also known as the Section 41 research credit or R&D tax credit, are expected to become effective beginning with tax year 2024. The changes to the form, which include the addition of two entirely new sections, are in line with IRS requirements for valid refund claims previously announced in 2021 guidance that went into effect as of January 2022. Taxpayers planning to claim the research credit for 2024 should begin now to analyze and implement processes to gather the information needed for the new reporting requirements in an effort to minimize the burden and impact that will be necessary to comply with these requirements. In addition, taxpayers that have claimed the credit in prior years should be prepared to provide the same support if selected for examination.

The R&D tax credit — generally 20% of qualified R&D spending over a base amount — was established to help U.S. businesses remain competitive in the global market by encouraging long-term investment in innovation within the U.S. Companies across a variety of industries and of all sizes can benefit from the credit. To qualify for the credit, research activities must satisfy specific criteria that can be complicated to navigate and challenging to document. If a business cannot utilize the credit in the current tax year, the credit can be carried back one year or carried forward for up to 20 years.

Proposed changes to Form 6765

The proposed changes to Form 6765 are intended to provide taxpayers with a consistent and predefined format for tax reporting and improve the information received by the IRS for tax administration and examination. In addition, the new reporting requirements should assist the IRS in facilitating its goals for increased transparency, closing loopholes, and processing accurate claims.

Insight

The additional reporting requirements resulting from the proposed changes to Form 6765 have sparked controversy due to the lack of guidance from the IRS on the level of detail and the type of information required to be provided as well as needed clarification of certain terms.

It also remains to be seen how this information will be analyzed and used by the IRS for purposes of auditing claims or selecting claims for examination. Until guidance is issued, taxpayers should be focused on implementing a diligent methodology and on the quality of the substantiation available to support the credit.

New Section F

Among the requirements for qualified research activities under Section 41 is a “business component” test. To meet this test, the application of the information discovered as a result of the research activity must be intended to be useful in the development of a new or improved business component of the taxpayer. For purposes of this test, a business component is defined as any product, process, computer software technique, formula, or invention to be held for sale, lease, or license or to be used by the taxpayer in its trade or business.

The IRS’s proposed changes to Form 6765 would require taxpayers to provide certain additional information by business component in new Section F, including the following:

• A description of the information sought to be discovered as well as the one or more alternatives evaluated in the process of experimentation;
• Whether the business component is new or improved;
• The type of business component (product, process, formula, etc.);
• The business component’s use (sale, license, used in the trade or business, etc.); and
• Qualifying wages by type (research, supervision, support).

The proposed new Section F also requests additional specific identifying information related to software business components.

Eligible taxpayers that follow the ASC 730 Directive would report their adjusted ASC 730 financial statement R&D qualified research expense amounts as a single business component. The ASC 730 Directive applies only to taxpayers with assets equal to or greater than $10 million who follow U.S. GAAP to prepare their certified audited financial statements. All other taxpayers would need to report the requested information separately for each identified business component.

New Section E

In addition to the reporting required under new Section F, the proposed Section E would require taxpayers answer five new questions, including the amount of officers’ wages included in qualified research expenses, whether the taxpayer acquired or disposed of a major portion of a trade or business during the taxable year, and whether the taxpayer has identified any new qualified research expenses.

Potential challenges for taxpayers

Although designed to assist taxpayers with meeting IRS requirements for properly documenting and filing accurate research credit claims, the proposed changes to Form 6765 pose several challenges for taxpayers.

• As currently drafted, Section F would require — for each business component — a description of the information sought to be discovered through the taxpayer’s research as well as the alternatives evaluated in the process of experimentation. Because the draft Form 6765 specifically instructs taxpayers to “use the space provided” for their answer, the IRS needs to give taxpayers additional guidance on the level of detail that must be provided in response to this question. We understand that the IRS is planning to address this issue, as well as whether taxpayers may use an alphanumeric naming convention for business components.

• Taxpayers claiming software as a business component would be required to select from various detailed categories of internal use, non-internal use, and dual function software to identify the qualifying software type. This requirement will likely require an additional level of technical review and will further require taxpayers to make current year determinations as to intended use of the software.

• Because intended use of the result of research may change over the life of an R&D investment, it is unknown what effect information provided in new Form 6765 will have on the ability of taxpayers to present new facts under examination to account for changes in the R&D life cycle that may not have been known at the time of the original filing.

• Section E would require a taxpayer to disclose the amount of officers’ wages seemingly in an effort to identify another high-risk area; however, taxpayers employ a wide array of legal and organizational structures that may lead to inconsistent reporting.

• Section E would also require taxpayers identify new qualified research expenses incurred during the taxable year. Further guidance is needed regarding what is considered a category of expenditures and how to determine whether a category is new – using a facts and circumstances analysis.

The IRS requested feedback on the proposed changes by October 31, 2023, including feedback on making Section F optional for certain businesses. As currently drafted, exempted taxpayers would still be required to maintain books and records and provide Section F information in a similar format, if requested. Any exemption would not apply to amended returns for the research credit.

What taxpayers can do now: the importance of documentation for exam defense

The IRS examination process can be daunting, even for those familiar with it. A robust examination defense often involves tax professionals who can use their knowledge and experience to help present the taxpayer’s position accurately and persuasively.

Given the IRS’s scrutiny of R&D credit claims, it is essential that taxpayers maintain detailed records and other documentation to support their research credits on exam. Preparing robust documentation early in the R&D credit process is key to successfully supporting valid claims.

• Preparing for exam defense can clarify tax code complexities and align a taxpayer’s position with the tax code’s intent.
• A successful defense can prevent potentially significant financial penalties and additional tax liabilities.
• For many businesses, tax credits such as research credits or other incentives are central to their financial planning. Therefore, effectively defending these positions can be vital to maintaining strategic financial plans.
• How an entity handles and resolves an IRS examination can set precedent for future interactions with the IRS. A well-prepared defense can not only signal to the IRS the taxpayer’s commitment to compliance, it can also expedite the exam process as well as protect the company against potential reputational damage.

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