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tax notes

Fix Financial Distortions Before

Considering Obamas Minimum Tax
By Patrick Driessen
Patrick Driessen is a former revenue estimator
for the Joint Committee on Taxation and the Treasury Department.
In this article, Driessen argues that as an initial
international tax step, neutralizing Accounting
Principles Board Opinion No. 23 with a conformity
requirement is preferable to big ideas, including
President Obamas recent minimum tax and toll
charge proposal. Conformity is a policy improvement that would avoid both tax windfalls and
retroactivity in ways that other approaches dont. It
would also clarify what, if any, broad reform may
be needed next. While offered here primarily as a
policy fix, conformity might also raise revenue.

Frustration with the status quo has the United

States at an international tax crossroads. All directions involve risk. The path of exemption typified
by former House Ways and Means Committee
Chair Dave Camps 2014 territorial plan potentially
leads to more competitiveness and tax-induced
income shifting. Another major route, the antideferral road exemplified by the 2011 tax plan of
Sens. Ron Wyden, D-Ore., and Daniel Coats, R-Ind.,
holds potential for the converse. President Obama
recently entered the fray and attempted to split the
baby with a 19 percent minimum tax as an antideferral condition for partial exemption (with a
mandatory 14 percent toll charge to clean up historical deferral).
Most territorial ideas seem too generous to multinational companies, at least for the general U.S.
appetite.1 But reforms, like the Wyden-Coats plan,
that intend to buttress the current U.S. worldwide
taxation approach seem too punitive (especially
with per-country limitations), while Congress appears to regard Obamas hybrid compromise as

Notwithstanding the stampede by other countries to territoriality. See Patrick Driessen, 4 More Reasons to Question U.S.
Territorial Tax Adoption, Tax Notes, Dec. 22, 2014, p. 1377.

TAX NOTES, March 2, 2015

dead on arrival.2 However, a pragmatic view is that

none of these options can be ruled out at this time:
The administration, Camp, and full anti-deferral
ideas arent necessarily wrong (although they probably cant all be right) as much as they are premature.
Occam Before Obama and Others
Consider the relatively simple (at least by international tax standards) alternative of deferral conformity that would fix some, but maybe not all, of
the problems with foreign deferral. This proposal
would make deferral of U.S. tax on foreign earnings
contingent on companies conforming their financial
reports to reflect the residual U.S. tax expense. This
change would counteract the currently deceptive
reporting under Accounting Principles Board Opinion No. 23, which masks the quality of foreign
earnings, specifically the illiquidity caused by designations of indefinitely reinvested earnings (IRE).3
Of course, tax reformers often think big, but big
hasnt gotten us far since the last major international tax legislation in 2004.4 So how about a
simple, smaller, constructive step? An incremental
deferral conformity proposal would be a standalone policy improvement that eliminates investor
deception for both prospective and historical deferrals. Conformity wouldnt require a retroactive tax
or create major windfalls for companies,5 and is a
necessary prelude that permits us to backtrack from
the crossroads to see clearly whether broad reform
is needed (including full territoriality or a minimum

See, e.g., Jeremy Scott, Obamas Foreign Earnings Tax: 19
Percent Minimum DOA but Deemed Repatriations Key, Tax
Analysts Blog (Feb. 2, 2015).
The Financial Accounting Standards Boards recent proposed adjustments, described in Thomas Jaworski, FASB Develops Disclosure Rules for Foreign Earnings, Tax Notes, Feb.
16, 2015, p. 876, dont address the financial reporting distortion
that conflates constrained and unconstrained earnings. In light
of the significant number of companies that have reneged on
APB 23 designations, its ironic that some company reports
continue under APB 23 to refer to permanently reinvested
earnings rather than IRE.
See Martin A. Sullivan, Time to Shop for a Different
Approach to Tax Reform? Tax Notes, Feb. 23, 2015, p. 948.
The Camp and Obama proposals are retroactive because
they are mandatory in changing the way taxpayers were led to
believe historical deferrals would be treated. However, the
alternative section 965-like voluntary tax holidays have no tax
policy rationale and are windfalls by definition. See appendix.


(C) Tax Analysts 2015. All rights reserved. Tax Analysts does not claim copyright in any public domain or third party content.



Treatment of Future IRE Designations

APB 23 misleadingly exacerbates a liquidity trap.
This is a classic conformity issue: Because of APB
23, foreign earnings that are reported for financial
purposes without U.S. federal tax expense are in
practice inferior to other earnings because the IRE
designation effectively constrains liquidity. Shareholders have more at stake than simply understanding that APB 23 reduces financial tax expense6:
IRE designations under APB 23 cant be used for
dividends or other ordinary business purposes that
require repatriation.7 APB 23 effectively turns deferral into exemption for financial reporting purposes,
thereby adding to the incentive already in the tax
code for both foreign shifting and lockout.
Articles by accountants and others recognize this
liquidity trap but tend to treat it not as a financial
reporting issue but as part of a broad tax policy
problem that needs to be fixed by tax legislation
that would, for example, end deferral, or provide
territorial exemption.8 However, while there may be
a general tax policy problem, the muddling of
earnings by APB 23 must be cleared up first to
diagnose the issue. Following Occams razor, this
APB 23 problem is the easiest and most compelling
international tax issue for policymakers to correct.
Under the deferral conformity legislation, prospectively all IRE designations under APB 23 would
be treated as includable income under subpart F of
the tax code. This change would eliminate a deceptive financial reporting practice that distorts finan-

R. Harold Schroeder, a FASB official, recently suggested that
investors primarily see APB 23 as a signal that companies are tax
frugal, and that some added geographic information but
nothing further about potential residual U.S. taxation should
be sufficient. See Jaworski, FASB Reviews Proposals for Foreign
Earnings Disclosure, Tax Notes, Jan. 12, 2015, p. 207.
Its not clear how extraordinary an event must be to justify
reneging on an IRE designation. For example, in 2009 Pfizer was
able to renege on more than $30 billion of IRE in conjunction
with its acquisition of Wyeth (the reversals occurred within both
companies). With due respect for FASBs many other good
works, there is a hint of accountant capture with APB 23.
See, e.g., Roy Clemons, Kirsten Cook, and Michael R.
Kinney, U.S. Corporate Tax Reform and Financial Reporting
Incentives, Tax Notes, Oct. 7, 2013, p. 92; and Richard Molina,
An Old Accounting Standard Needs to Tie Into a New Tax
Policy, Tax Notes, Apr. 1, 2013, p. 65. SEC queries seem to focus
on the quality of information that companies provide to auditors regarding the IRE designation, rather than the general
degrading of earnings supported by APB 23. See Amanda
Athanasiou, SEC Scrutinizing Claims of Indefinite Reinvestment Overseas, Tax Notes, June 9, 2014, p. 1107.

cial and tax policy.9 Precedent for this action is in

the tax codes last-in, first-out accounting method
and customs/transfer pricing conformity rules.10
With deferral conformity, to avoid subpart F
inclusion companies would stop making APB 23
elections. Federal tax expense associated with deferral would be recognized on Forms 10-K, and all
earnings would be equal from an investors perspective and a companys consideration of income
and investment location would no longer be as
distorted. Of course, companies would still defer
foreign earnings even without an APB 23 election,
but likely at a lesser amount than under current law.
Treatment of Historical IRE
The deferral conformity alternative would also
alleviate the conflict between retroactivity and
windfall (see appendix) regarding how to address
legislatively the historical deferrals under APB 23.
A voluntary repatriation holiday with a low toll tax
of 5.25 percent, or the 6.5 percent tax rate proposed
by Sens. Barbara Boxer, D-Calif., and Rand Paul,
R-Ky., would be a windfall for many taxpayers
while the holiday wouldnt address anything fundamental about the tax system. Alternatively, approaches that mandate the end of historical deferral
violate the important tax principle of nonretroactivity.
The 2004 repatriation holiday showed that some
companies find even 5.25 percent prohibitive, and
while such a low rate is commonly thought to moot
retroactivity complaints, companies that dont want
to pay even that low rate shouldnt be held retroactively responsible despite a tax code that some
analysts (including me!) regard as having been
favorable to open-ended deferral. Neither dislike of
open-ended deferral, nor the idea that its fair to
treat companies en masse because some are getting
something they want from a bill like Camps, so all
companies should relinquish old deferral at a nonzero toll charge, justify retroactive taxation.11 The
view that these earnings should be taxed at 35
percent is misguided on retroactivity grounds for
both the high tax rate and involuntariness.12

Legislators have played a major role in expanding deferral
by demanding that the check-the-box regulation cover foreign
entities as well as legislatively adding the active financing
exception and a look-through rule for payments between related
foreign parties. But those changes were knowingly (although
inadvisably in my view) adopted, unlike the stealthy effect APB
23 has had on investor information and taxpayer choices.
See sections 472(c) and 1059A, respectively.
Procedurally, even a weak complaint about retroactive
taxation should be taken seriously.
E.g., professor Reuven S. Avi-Yonah asserts that 35 percent
is the appropriate rate on old capital whose tax avoidance was
enabled by check-the-box. See Kristen A. Parillo and Andrew

(Footnote continued on next page.)


TAX NOTES, March 2, 2015

(C) Tax Analysts 2015. All rights reserved. Tax Analysts does not claim copyright in any public domain or third party content.

tax or ending deferral altogether). And yes, conformity might actually raise revenue. The two-part
proposal in this article addresses future IRE designations and historical IRE designations outstanding
at the time of the legislations enactment.


Why 14.75 percent? Its probably not the

revenue-maximizing rate, but thats fine because
equity should trump revenue, (although OK, lets
raise some revenue too). Further, regarding the
equity of 14.75 percent: First, the toll charge isnt
mandatory so if a multinational corporation (MNC)
believes it is harsh, the company can take the
prospective earnings hit approach instead and continue to treat historical IRE as it does under current
tax law. Second, just because 5.25 percent was used
in 2004 shouldnt have any precedential value
that was a windfall rate for companies dictated by
perceived exigency.15 Also, the 5.25 percent rate in
2004 caused even more subsequent deferral in the
expectation that there would be another low-tax-

Velarde, Budget Proposes Minimum Tax, Transition Tax on

Foreign Earnings, Tax Notes, Feb. 9, 2015, p. 682, at p. 685. In my
view, Avi-Yonahs understandable sentiment is insufficient to
justify something as unprincipled as tax retroactivity.
This includes a backstop, as described in note 17, infra, with
allowance for a prorated foreign tax credit, as well as expense
disallowance, as under section 965. In the 2004 repatriation
holiday, these two features on net reduced the residual U.S. tax
rate by about 30 percent. See Edward D. Kleinbard and Driessen,
A Revenue Estimate Case Study: The Repatriation Holiday
Revisited, Tax Notes, Sept. 22, 2008, p. 1191, at p. 1200. If that
pattern continues with this nominal 14.75 percent rate in this
conformity proposal, the effective U.S. tax rate would be about
10.5 percent.
If after the election period, say in 2020, a company decides
to repatriate some of its holdout IRE that is subject to financial
report amortization, the company will pay tax at the prevailing
corporate top rate at the time of repatriation and then can
reduce the amortized financial reported expense over the 40year period equivalently, but that repatriation wouldnt qualify
for the 14.75 percent rate initially available when conformity is
See Driessen, Dividend Repatriation Toll Charge: 5.25 or
Fight, Tax Notes, Aug. 25, 2014, p. 975.

TAX NOTES, March 2, 2015

rate holiday,16 so to avoid that signal, the voluntary

rate here should be substantially higher. In comparison with how other long-term deferral is
treated, proposals to end similar forms of deferral
(for example, LIFO) generally do so at top tax rates.
Yet a 35 percent rate is too punitive. A 14.75 percent
rate for 2015 could also be seen as complementary,
with the weighted 5.25 percent from section 965 in
2004 and 14.75 percent being offered here yielding
10 percent on average across both offerings not a
bad deal for taxpayers overall and not the windfall
that 5.25 percent was in 2004.
As an example of the treatment of historical IRE
under this proposal, consider that General Electric
had $110 billion in historical IRE at the end of 2013.
Suppose that the foreign tax rate on that amount
was 8.5 percent. Under the deferral conformity
proposal, GE could choose to pay $7 billion of U.S.
tax spread over some period [(0.1475-0.085) x $110],
or alternatively reverse its prior APB 23 elections by
taking, for financial reporting purposes, an additional annual expense charge of $729 million per
year for the next 40 years.17 This would be a
one-time election, with GE allowed to mix and
match: For example, GE could pay the toll charge
on, say, $40 billion and use the 40-year financial
reporting adjustment for the other $70 billion of
accumulated IRE. Any amount subject to the toll
charge would not face any more U.S. tax if repatriated, while any accumulated IRE for which the toll
charge is not elected would be subjected to the
highest prevailing corporate rate if repatriated later,
with allowance for foreign tax credits and any
remaining financial reporting amortization adjusted.
The intent here is not to beat up accounting
authorities. They have their own perspectives and
imperatives, and to its credit the Financial Accounting Standards Board now recognizes that theres a

Notwithstanding that Congress in 2004 said it wouldnt
repeat the holiday, the continuing discussion of another tax
holiday over the last 10 years clearly has affected taxpayer
Calculated as (0.35-0.085) x 110/40. This expense charge for
financial reporting would be reduced for any actual repatriations of the cumulative IRE that GE makes in later years and
would change as the top U.S. corporate tax rate changes. There
should be no reason for an auditor to object to GEs prorated
reneging on its IRE election, because this would be a taxpayer
furthering transparency for investors. If for some reason there
was an objection by auditors, as a backstop subpart F income
inclusion would be required in lieu, so that any retroactive
taxation in this event would not be the fault of the tax code but
would be attributable to auditor resistance. Companies should
have no difficulty calculating the amortizable tax expense
inclusion for financial reporting purposes because they already
make that calculation for non-IRE deferral and for the required
filing of IRS Form 5471.


(C) Tax Analysts 2015. All rights reserved. Tax Analysts does not claim copyright in any public domain or third party content.

To avoid retroactivity and ameliorate windfalls

either of which having characterized all other
proposals targeting historical IRE under this
conformity proposal, taxpayers would be offered
the choice of paying a toll tax or taking a financial
earnings charge for historical IRE designations. For
accumulated IRE and other deferred foreign earnings at the end of 2015, a taxpayer could either (1)
pay a tax of 14.75 percent spread over, say, five
years,13 or (2) reverse for financial reporting purposes the historical IRE designation by recording
prospectively the federal tax previously unreported
in Forms 10-K at an annual rate of 2.5 percent over
a 40-year term starting with 2015. The 40-year
approach matches long-term accounting treatment
of goodwill and reflects the continuing illiquidity
that IRE designations cause.14


Having worked on many repatriation proposals
for 10 years as a government revenue estimator, Im
reluctant to add to the stockpile of boutique tax
holiday ideas. But this conformity proposal addresses in an equitable way19 a distortion that
affects MNC and investor decisions. In contrast, the
typical repatriation holiday (for example, the BoxerPaul proposal) seeks temporary repatriation and
quick revenue at the expense of later revenue, tax
policy, and inequities among companies and across
various tax deferral provisions. Even the mandatory repatriation provisions embedded in the
broader Camp and Obama plans violate the important principle of tax nonretroactivity. Conformity is
a beneficial change needed on its own, but if APB 23
negation as a secondary matter increases revenue,
repatriation, and domestic income base protection,
then fine.20
If after a reasonable trial period conformity isnt
found to ameliorate the problems of international
income shifting and lockout, something like the
sweeping Obama or Camp reforms or something
even more radical like a formulary method21 could

Jaworski, supra note 3. FASBs proposed solution is inadequate more information on foreign-versus-domestic earnings and more geographic breakdown of IRE designations as
well as further explanation of designations would be required,
but none of these changes would address the top-line earnings
distortion that APB 23 creates inferior earnings. Perhaps it
would have been preferable for accounting authorities to have
developed a concept of long deferred taxes (maybe call it
indefinitely deferred tax liability?) in APB 23 at the outset to
deal with open-ended deferral a way to distinguish timelimited deferred tax liabilities from open-ended deferral tax
liabilities but it seems politically (e.g., companies now are
infatuated with APB 23) and technically too late to make
amends (more than $2 trillion is already out there).
This plan doesnt eliminate the potential for a tax windfall
because some companies will find the 14.75 percent toll charge
on historical IRE attractive, but this relatively high toll charge
combined with the elimination of the financial reporting benefit
of APB 23 reduces the scope of tax windfall relative to other
voluntary plans.
Regarding a revenue estimate, this deferral conformity
idea doesnt have the signaling problems of repatriation holidays and reduces the incentive to defer by taking away the
financial reporting benefit.
See Michael Udell and Aditi Vashist, Sales-Factor Apportionment of Profits to Broaden the Tax Base, Tax Notes, July 14,
2014, p. 155.


be considered. Negating APB 23 right now is necessary to inform about the potential need for these
broader policy choices.
Appendix: Windfall vs. Retroactivity
The intent here isnt to turn new ground on tax
windfalls or tax retroactivity (the ambiguity of
which rivals competitiveness), but to focus on
equity considerations for proposals to induce voluntary termination of historical open-ended deferral or mandate the termination of such deferral.
Regarding historical open-ended deferral, a
windfall involves the selective legislative lowering
of the tax rate applicable to a taxpayers ending of
deferral. If the taxpayer voluntarily elects to end
deferral because of the lower tax rate offered, thats
a windfall. There also may be windfall if the end of
deferral is mandated legislatively, but in that event
we cant determine which taxpayers receive a windfall and which are burdened retroactively (see below on retroactivity). By this definition, companies
that availed themselves of the 2004 voluntary repatriation tax holiday received a windfall. Some
MNCs were fortuitously positioned for the reduced
toll tax of 5.25 percent, but others werent positioned for a tax holiday that no company reasonably should have expected in the decades before
2004 as decisions were being made about foreign
investment and deferral.22
Because open-ended deferral allows for taxpayer
discretion and requires the consideration of the time
value of money, defining retroactivity is tricky.23
Open-ended deferral by definition empowers taxpayers to avail deferral as long as they meet specific
conditions. The working definition of tax retroactivity used here is whether the government selectively
changes the condition of deferral in a way that is
adverse to any taxpayer. So legislation that raises
the general income tax rate is not retroactive taxation for historical deferral because that kind of
policy change is not narrowly targeted at historical
deferral. But legislation that ends historical deferral
contrary to the terms under which the deferral was
initially granted is a retroactive tax, exemplified by
proposals to repeal mandatorily historical deferral


Companies complaining about locked out earnings as

justification for a repatriation holiday are on shaky equity
grounds. MNCs have always known the conditions for receiving open-ended deferral for controlled foreign corporation
Open-ended deferral also complicates tax expenditure
identification, but a per se rule based on statutory language
offers clarification. See Driessen, Would Territoriality Be a Tax
Expenditure? Tax Notes, Feb. 2, 2015, p. 647.

TAX NOTES, March 2, 2015

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quality of earnings problem.18 This conformity

legislation wouldnt tell FASB what to do. It simply
eliminates the whipsaw benefits from the nonconformity of the tax code with APB 23 (again, the tax
codes LIFO conformity is the prototype). If FASB
wanted to clean up APB 23 as deadwood after
this conformity is enacted, so be it.



Deferral for inside buildup in defined contribution pension

plans is not technically open-ended because of required minimum distribution rules and mortality.
E.g., Camps staff suggests in Tax Reform Act of 2014
Discussion Draft Section-by-Section Summary, at 92 (Feb.
2014), that taxing historical LIFO reserves is not retroactive
because it triggers the deferred tax liability inherent in LIFO.
But involuntary acceleration of tax required by the government
on what was supposed to be open-ended deferral is retroactive
because it changes the terms of agreement. In granting openended deferral for LIFO, the government handed control of that
tax benefit to the taxpayer, conditioned on the taxpayer not
reducing inventory. Ending that deferral for any reason other
than voluntary inventory liquidation is retroactive taxation.
Because of conformity, LIFO, unlike IRE designations,
already causes a book earnings reduction. Also, most tax reform
proposals do not offer the same low tax rate for LIFO reserves
that is offered for historical deferred foreign earnings even
though these two open-ended deferrals are similar. To add
insult, proposals like Camps offer a brighter future (i.e., exemption) for future foreign earnings but no prospective accounting
method that would be an improvement over LIFO. On the other
hand, defined contribution pension plans (which arent technically open-ended because of minimum distribution rules) often
face higher tax rates after deferral is ended, that is, when the
pensions are paid out (hence the growing popularity of Roths).
While Apples Tim Cooks 2013 congressional testimony
that his company was merely following what the tax code
allows in the treatment of foreign income was disingenuous
because Apple isnt like ordinary taxpayers who are mere takers
of the code (i.e., Apple actually has had a role in forming the tax

taxpayer should also be acknowledged by policymakers: If prior law is now deemed to have been
overly generous (for example, regarding foreign
deferral), the antidote shouldnt be tax retroactivity.
Some policymakers interested in infrastructure
funding for transportation may not care much
about issues like retroactivity and windfalls. Perhaps the only tax policy some of these legislators
care about is that suitable funding options a gas
tax increase and perhaps a carbon tax are not
feasible. Even tax policymakers who should know
better have failed to avoid or acknowledge windfalls and retroactivity, for example, the voluntary
2004 repatriation holiday, which was a windfall that
permitted the best of both worldwide and territorial
systems with simultaneous exemption and fullthrottled cross-crediting28 and, more recently, the
mandatory Camp and Obama repatriation proposals that gloss over retroactivity.
But retroactivity, although apparently permitted
by courts, should be avoided in tax policy as a first
principle even when the taxpayer benefits involved
arent viewed sympathetically or the revenue from
repeal is being used to finance whats believed to be
a more favorable system for some taxpayers.29
Windfall should also be avoided as a first principle.
As a practical necessity, its probably better to err on
the side of creating windfall (but not so much as to

code), he was technically correct. Cooks defense also applies to

tax issues that seem less worthy of protection against retroactivity.
The 2004 law allowed taxpayers to cherry-pick the foreign
earnings that would be exempted, thus permitting the retention
of highly taxed foreign dividends for cross-crediting against
lightly taxed foreign-source income like royalties and interest.
The law also didnt require deduction disallowance for expenses
like interest, overhead, and research not directly traceable to the
exempted dividends.
LIFO proponents have a point theres no way for the
government to force the unpeeling of old LIFO layers without
retroactive taxation. For equity, the same voluntary rate of 14.75
percent should be offered for LIFO repeal and repeal of any
other open-ended deferral. But because the tax code already
requires LIFO conformity, theres no second prong or alternative
other than for LIFO taxpayers to retain their old LIFO reserves
as under present law. Companies may pay the toll charge for old
foreign deferral because they want to repatriate, but companies
have no reason to liquidate LIFO reserves (and the LIFO reserve
footnote already in most financial reports signals the negative
earnings impact of LIFO conformity to savvy investors) other
than fear of what the International Accounting Standards Board
might do. If the IASB and FASB disallow LIFO, that will be an
accounting authority issue, not a tax code issue, so in that event
there would be no compelling reason why the U.S. tax code
should offer leniency. So a LIFO taxpayer could take the risk of
paying 14.75 percent now, or leave its LIFO layers untouched
and face whatever the rate will be if the IASB prevails. But in
any case, by repealing historical LIFO mandatorily, the U.S.
government would be violating an important tax principle.

(Footnote continued in next column.)

TAX NOTES, March 2, 2015


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of foreign earnings, LIFO, or like-kind exchanges or

the deferral permitted for defined contribution pension plans.24
Its assumed that for at least some taxpayers even
a low-rate mandatory toll charge on old deferral is
a retroactive tax. The 2004 tax holidays seemingly
low toll charge of 5.25 percent created windfalls
because it was voluntary, but would have created
both tax windfalls and retroactivity had it been
mandatory because some companies felt that even
5.25 percent was too high as demonstrated by the
absence of section 965 elections by companies for all
eligible foreign earnings.
Still, not all tax retroactivity complaints are created equal: Some retroactivity claims seem less
sympathetic than others, and this may explain some
specious claims about the absence of retroactivity in
various proposals.25 For example, for many reasons
the historical deferral under LIFO seemingly merits
more protection against tax retroactivity than historical deferred foreign earnings, and deferrals for
defined pension contributions seem even more
sympathetic than foreign deferral or LIFO.26 But
just because a form of income has never been taxed
or otherwise seems undeserving of sympathy
doesnt mean that historical decisions made in
accord with the tax code dont deserve procedural
protection.27 Open-ended deferral, generous as it
may be, requires conditions that if met by the


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totally trash equitable tax policy) rather than retroactivity. Unlike other proposals involving historical
IRE, the deferral conformity proposal detailed
above with its two-pronged election for historical
deferral avoids tax retroactivity and minimizes tax
windfall at the same time and is attached to unequivocally better tax and financial policy because
of the proposals negation of APB 23.