[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Rules and Regulations]
[Pages 79256-79265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30613]
[[Page 79255]] 488 (1,075,856 lb dw)
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Part III
Postal Regulatory Commission
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39 CFR Part 3060
Accounting and Periodic Reporting Rules; Final Rule
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 /
Rules and Regulations
[[Page 79256]]
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POSTAL REGULATORY COMMISSION
39 CFR Part 3060
[Docket No. RM2008-5; Order No. 151]
Accounting and Periodic Reporting Rules
AGENCY: Postal Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Commission is adopting final rules on accounting
practices, an assumed Federal income tax, and periodic reporting for
the Postal Service's theoretical competitive products enterprise. The
rules incorporate several changes based on consideration of comments
filed in response to an earlier proposal. Adoption of the rules will
promote several statutory goals, including transparency and
accountability.
DATES: Effective January 23, 2009.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6820 and [email protected].
SUPPLEMENTARY INFORMATION: Regulatory History, 73 FR 6081 (February 1,
2008) and 73 FR 54468 (September 19, 2008).
I. Introduction and Summary
This order establishes financial accounting practices and tax rules
for competitive products. The Postal Accountability and Enhancement Act
(PAEA), Public Law 109-435, 120 Stat. 3218 (2006), requires the
Commission to prescribe rules applicable to competitive products for
the establishment and application of (a) the accounting practices and
principles to be followed by the Postal Service, and (b) the
substantive and procedural rules for determining the assumed Federal
income tax on competitive products income. See 39 U.S.C. 2011(h)(2)(B).
In addition, such rules shall provide for the submission by the Postal
Service of annual and other periodic reports setting forth such
information as the Commission may require. 39 U.S.C.
2011(h)(2)(B)(i)(III).
Aided by recommendations contained in a report submitted by the
Secretary of the U.S. Department of Treasury (Treasury) pursuant to the
PAEA, as well as comments on that report provided by interested
persons, including the Postal Service, the Commission issued Order No.
106 which proposed rules for implementing section 2011(h)(2)(B).\1\ The
proposed rules attempted to give effect to section 2011 in the context
of the PAEA as a whole, while recognizing the realities and
complexities of the Postal Service's operations and the legitimate
expectations of stakeholders. Interested persons were invited to
comment on the proposed rules. The Postal Service and the Public
Representative filed initial comments on October 20, 2008, and reply
comments on November 3, 2008. The final rules in this order differ from
the rules proposed in Order No. 106 in minor ways designed to clarify
the rules in response to the comments received. Principal differences
between the proposed and final rules are:
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\1\ PRC Order No. 106, Order Proposing Accounting Practices and
Tax Rules for Competitive Products, September 11, 2008.
--Treatment of group specific costs when calculating net income for
competitive products has been changed to be consistent with PRC
Order No. 115;
--The title for the Pro Forma Balance Sheet has been changed to
Statement of Allocated Assets and Liabilities for Competitive
Products;
--The due dates for all financial reports will be within 90 days of
the close of the fiscal year, with the exception of the first year
in which certain reports are due by January 15, 2009;
--The first Statement of Allocated Assets and Liabilities for
Competitive Products is due within 90 days of the close of FY 2010;
--The definition of assumed taxable income from competitive products
has been changed to include an adjustment for permanent items;
--The refund of a prior year's assumed tax payment resulting from
the carry back of a net operating loss (NOL) will be the lesser of
(1) the tax payment in the prior two years, or (2) the hypothetical
tax computed on the amount of the loss;
--An opportunity for public comment on the Postal Service's assumed
annual Federal income tax calculation is provided.
Among the goals of the PAEA are the following: (1) Increase the
transparency of Postal Service operations; (2) prohibit cross-subsidies
of competitive products by market dominant products; and (3) reduce
administrative burdens. In developing the proposed rules and in
establishing the final rules, the Commission has been guided by these
goals.
The final rules, like the proposed rules, are based on a
theoretical, on-paper-only enterprise, do not require new accounting or
data collection systems, maintain the Commission's existing definition
of attributable cost, and provide the Postal Service optional means for
calculating an assumed Federal income tax on competitive products
income. They are, in short, intended to promote the goals of
transparency and accountability without imposing undue burdens on the
Postal Service.
The assumed Federal income tax is an intra-agency transfer designed
to foster fair competition, a goal also served by the PAEA's pricing
provisions applicable to competitive products. See 39 U.S.C.
3633(a)(1)-(3). The statute requires the annual ``payment'' of an
assumed Federal income tax from the competitive products fund to the
general postal fund, and these rules implement that requirement. See 39
U.S.C. 3634(b).
II. Comments Regarding the Proposed Rules
Two parties--the Postal Service and the Public Representative--
filed initial and reply comments in response to Order No. 106. In
addition to suggesting clarification in language and deadlines, the
Postal Service requests a change in the way group specific costs are to
be treated in the calculation of net income for competitive products.
The Postal Service also proposes a new source for an effective tax rate
to be used in the simplified approach to calculating an assumed Federal
income tax on competitive products. Finally, the Postal Service
questions the value of the proposed Pro Forma Balance Sheet and
requests the name of this report be changed.
The Public Representative suggests that the Commission open a
docket each year to provide notice of receipt of the required periodic
reports and to solicit public comment on those reports. The Public
Representative also proposes language changes to clarify, and in one
instance to correct, the proposed tax rules. The Postal Service agrees
with the proposed correction.
III. Accounting Practices and Reporting Requirements
The Commission's proposed rules regarding accounting practices and
procedures associated with providing competitive products focus on the
costing methodology to be used by the Postal Service; methods for
valuing assets and liabilities; and the financial reporting
requirements for the competitive products enterprise. In this section,
the Commission addresses the parties' comments concerning the
accounting principles and reporting requirements embodied in the
proposed rules.
A. Treatment of Group Specific Costs
The treatment of group specific costs has been changed in the final
rules to make it consistent with Order No. 115.\2\ Order No. 115 was
issued subsequent to the drafting of the proposed accounting
[[Page 79257]]
rules and addressed group specific costs in a much broader context than
proposed rule 3060.21. The Commission noted in Order No. 115 that
treatment of group specific costs for accounting purposes would have to
be revisited in the final accounting rules.
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\2\ Docket No. RM2008-2, Order No. 115, Order Accepting Certain
Analytical Principles for Use in the Postal Service's Periodic
Reports, Ocober 10, 2008, at 9-19.
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The Postal Service notes that proposed rule 3060.21, which sets out
the format for the Competitive Products Income Report, is inconsistent
with the treatment of group specific costs in Order No. 115. Group
specific costs are costs that are related to a specific line of
business, such as competitive products, but which cannot be attributed
to one product. Costs related to a manager that oversees all
competitive products and does not work on market dominant products at
all is an example.
In the proposed rule, Net Income is defined as Total Revenue minus
Total Competitive Products Attributable Costs minus Required
Institutional Cost Contribution. Total Competitive Products
Attributable Costs, as used in proposed rule 3060.21, include Group
Specific Costs. Order No. 115 set forth the Commission's rationale for
not removing group specific costs from institutional costs until such
time as a comprehensive and thorough analysis of group specific costs
has been completed. The Postal Service points out that if rule 3060.21
treats institutional costs in the same manner as Order No. 115, there
will be a duplicate expense deduction for group specific costs.
Order No. 115 was concerned with the rationale for group specific
costs in an economic rather than an accounting sense. In that order,
the Commission concluded that the use of group specific costs was
acceptable as an interim tool for applying the incremental cost test to
the revenues of the competitive products enterprise. However, their use
was not acceptable as a means of calculating an economically meaningful
measure of institutional costs, particularly since the Postal Service
has yet to complete a comprehensive analysis of group specific costs
for both competitive and market dominant products and was proposing to
identify and isolate group specific costs in an evolutionary manner.
For pricing, marginal costs (i.e., volume variable costs) are
needed and when testing for cross-subsidy, incremental costs are the
generally accepted basis. Calculating the cost of a firm for tax
purposes is fundamentally different from calculating costs for pricing
or for testing for cross-subsidization. For tax purposes, the total
cost of the firm is required.
In proposed rule 3060.21, the Commission suggests that the total
cost of the Postal Service's competitive products enterprise equals the
sum of volume variable costs, product specific costs, group specific
costs, and the appropriate share of institutional costs. The Commission
agrees with the Postal Service that the group specific costs should be
removed from the institutional costs before applying the appropriate
percent. See Docket No. PI2008-2, Initial Comments of the United States
Postal Service in Response to Order No. 56 and the Treasury Report,
April 1, 2008, at 12-15.
In an accounting sense, costs which cannot be allocated
specifically to one segment of a business are referred to as joint
production costs. In the case of the Postal Service, these costs would
necessarily exclude group specific costs for both competitive and
market dominant product groups since these costs have been identified
as being causally related to a specific line of business. Because a
comprehensive analysis of group specific costs has not yet been
completed, the Commission believes that institutional costs are the
best available proxy for joint production costs. In the future, the
appropriate percent of joint production costs that are allocated to
competitive products may be greater or less than the 5.5 percent
currently applied to total institutional costs, which was based on
historical cost coverages rather than the concept of causation.\3\ An
appropriate share of joint production costs may be developed using
market-based data such as revenue or physical measures such as volume
or weight.\4\
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\3\ Docket No. RM2007-1, Order No. 43, Order Establishing
Ratemaking Regulations for Market Dominant and Competitive Products,
October 29, 2007, at 90-92..
\4\ See Horngren et al., Cost Accounting, A Managerial Emphasis,
at 575.
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To be consistent with Order No. 115, final rule 3060.21 is changed.
Net income is calculated as competitive products revenue less
attributable costs less the appropriate share of institutional costs.
Proposed rule 3060.10 will also be changed to be consistent with rule
3060.21. The Commission recognizes that this treatment may need to be
revised in the future.
B. Pro Forma Balance Sheet
The Postal Service does not believe that there is a statutory
requirement for a balance sheet and that requiring the report would
detract from the goal of transparency. It contends that, while it would
be able to produce the report as contemplated in rule 3060.30, the
report would provide no meaningful information, as it is based on
mathematical calculations. Additionally, it notes that it is
unrealistic to produce a balance sheet based on an enterprise whose
``revenues and expenses are derived from statistical estimates and
economic costing rather than Generally Accepted Accounting Principles
(GAAP).\5\ The Postal Service suggests that if the Commission still
requires the production of this report that the title be changed from a
``Pro Forma Balance Sheet'' to a ``Statement of Allocated Assets and
Liabilities for Competitive Products.'' \6\ On reply, the Public
Representative points out that ``[t]he absence of specific statutory
language addressing a balance sheet requirement does not appear to
foreclose the Commission from mandating this type of report, given the
Commission's broad oversight authority.'' \7\ She states that further
Commission discussion of the rationale for such a report would be
useful.
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\5\ Initial Comments of the United States Postal Service in
Response to Order No. 106, October 20, 2008, at 4 (Postal Service
Comments).
\6\ Id. at 5.
\7\ Public Representative's Reply Comments, November 3, 2008, at
2.
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The need for the report derives from several sections of the PAEA.
The PAEA requires that obligations of the Postal Service issued to
support competitive products be supported and serviced by the revenues
and receipts from the assets related to the provision of competitive
products. 39 U.S.C. 2011(e)(1)(B)(i). It also provides that the
competitive products enterprise assets be the greater of the assets
related to the provision of competitive products or the percentage of
competitive products revenue times total assets of the Postal Service.
This implies that the Postal Service must determine the assets used in
provision of competitive products. 39 U.S.C. 2011(e)(5). Furthermore,
it states that one objective of the accounting practices and principles
for competitive products is ``identifying and valuing the assets and
liabilities'' associated with providing competitive products. 39 U.S.C.
2011(h)(1)(A)(i)(I).
The Commission recognizes that the Balance Sheet will not be in
conformance with GAAP. However, final rules 3060.12 and 3060.13 require
the Postal Service to identify any asset or liability account that is
used strictly for either competitive or market dominant products. Thus,
only assets and liabilities used jointly will be
[[Page 79258]]
allocated by mathematical formula.\8\ As long as the allocations are
done on a reasonable basis, such as percentage of revenue, volume, or
other cost driver, they should provide some measure of the resources
used in providing competitive products. The Commission believes that
this will enhance, rather than detract from, transparency. The Postal
Service is encouraged to provide the most relevant and meaningful
allocations that it can. If it still believes that the information in
the report is not representative, the report should be accompanied by a
disclaimer, stating in detail why the Postal Service believes this to
be the case.
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\8\ The Commission understands that this may be the majority of
accounts at the present time. However, this may change if the
competitive products enterprise grows substantially. The Postal
Service suggests, and the Commission has incorporated into the
rules, isolation of assets, obligations, and investments used
exclusively for competitive products.
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Further, if the Postal Service decides to calculate the assumed
Federal income tax using deductions available under the Internal
Revenue Code (IRC), such as depreciation, the report will provide a
basis for calculating these deductions.
The Postal Service's objection to calling the combined report of
assets and liabilities a ``Balance Sheet'' is that it is not a true
balance sheet according to GAAP. A formal balance sheet would contain
sections for capital and equity. The Postal Service argues that a
reader could be confused by a report that uses the name ``Balance
Sheet'' but does not contain all the information an accountant would
expect to find. The Postal Service will be providing a measure of
retained earnings in the financial status report filed pursuant to rule
3060.22. Consequently, a measure of equity could be derived since the
Postal Service has no shareholders. If the retained earnings and equity
were added to the required report, it would closely approximate the
data an accountant would expect to find. However, because the Pro Forma
Balance Sheet is not in conformance with GAAP, the Commission will, as
the Postal Service suggests, change the name of the report to Statement
of Allocated Assets and Liabilities for Competitive Products. While the
likelihood of misunderstanding or confusion is slight, changing the
name of the report will eliminate any such possibility.
C. Annual Docket
The Public Representative has requested a rule stating that the
Commission will initiate a formal docket each year to receive the
reports required by the proposed rules and soliciting comment from the
public on the reports. The Public Representative included proposed
language for a new rule 3060.2 that would implement her proposal.\9\
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\9\ Public Representative's Comments on Proposed Rules,
Attachment A, October 20, 2008.
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The Postal Service opposes such a rule as unnecessary. The Postal
Service notes that there is no such rule with respect to the Annual
Compliance Report, yet the Commission did solicit comments from the
public after the FY2007 report was filed and always has the option to
do so with respect to Competitive Products Reporting.\10\
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\10\ Reply Comments of the United States Postal Service in
Response to Order No. 106, November 3, 2008, at 3 (``Postal Service
Reply Comments'').
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The Public Representative's comments appear focused on the assumed
Federal income tax aspects of the financial reports, although her
proposed language includes all aspects of the competitive products
enterprise reporting and review. She states that ``an order the
Commission is required to issue under proposed rule 3060.42 provides an
unstated opportunity for the Commission to seek public input.'' \11\
The Postal Service's reply comments seem to view the Public
Representative's proposal as referring exclusively to the competitive
product reports.\12\ The Postal Service seems to expect the Commission
to give notice and opportunity to comment on these reports in the same
manner as the Annual Compliance Review (ACR).
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\11\ Public Representative's Comments at 4.
\12\ Postal Service Reply Comments at 2.
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Final rule 3060.20(c) requires the data underlying the competitive
products enterprise reports to come from the data underlying the ACR.
Under final rule 3060.24, these reports will be due (with the exception
of the report for FY2008) at the same time as the ACR. Thus, the
Commission will be able to incorporate notice of the competitive
products reports into the statutorily required notice and opportunity
to comment for the ACR.
The Commission agrees with the Public Representative regarding
notice and opportunity for comment on the assumed Federal income tax
calculation and final rule 3060.42 incorporates language to this
effect.
D. Due Dates
In its comments the Postal Service identifies an inconsistency with
respect to the due date for the first Pro Forma Balance Sheet (renamed
Statement of Allocated Assets and Liabilities for Competitive Products
in the final rules). The due date for the first report in proposed rule
3060.14 is 2011, while it is 2010 in proposed rule 3060.31. The
Commission intended that the first Balance Sheet reflect results for FY
2010, and the final rules reflect this intent.
The Postal Service also requests that the Competitive Products Fund
Report (CPFR) be due after or concurrently with the filing of the
Income Report and the Statement of Allocated Assets and Liabilities for
Competitive Products. The Postal Service reasons that the latter
reports would provide input for the CPFR and would need to be completed
prior to the filing of the CPFR. It therefore requests that the due
dates for financial reports be no later than for the CPFR. The Postal
Service proposed that the CPFR be due January 15 and that the financial
reports be due in late December.
In setting the deadlines in the proposed rules, the Commission had
sought to shift some work of the Postal Service away from the period
when the Postal Service is preparing its Annual Compliance Report. The
PAEA, however, sets the date for filing ``the most recent'' CPFR at 90
days from the close of a fiscal year.\13\ Accordingly, the CPFR and the
other reports required by these rules will be due 90 days after the
close of the fiscal year, with an extension to January 15, 2009 for all
FY 2008 reports except the CPFR. This extension is intended to allow
the Postal Service some additional time to prepare the initial reports.
If the Postal Service's experience shows that it can produce the CPFR
without having to complete the other financial reports, the due date
for those reports can be reexamined in a future rulemaking.
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\13\ See 39 U.S.C. 2011(i)(2) and 3652(a).
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IV. Calculation of an Assumed Federal Income Tax
39 U.S.C. 3634 outlines the basis for calculating an assumed
Federal income tax. First, it defines the term ``assumed Federal income
tax on competitive products income'' to mean ``the net income tax that
would be imposed by chapter 1 of the Internal Revenue Code of 1986 on
the Postal Service's assumed taxable income from competitive products
for the year[.]'' 39 U.S.C. 3634(a)(1). Second, it defines the term
``assumed taxable income from competitive products'' to mean:
The amount representing what would be the taxable income of a
corporation under the Internal Revenue Code of 1986 for the year,
if--
(A) The only activities of such corporation were the activities
of the Postal Service
[[Page 79259]]
allocable under section 2011(h) to competitive products; and
(B) The only assets held by such corporation were the assets of
the Postal Service allocable under section 2011(h) to such
activities.
Id. 3634(a)(2).
Finally, it requires the assumed tax be ``paid,'' i.e., transferred
from the Competitive Products Fund to the Postal Service Fund, on or
before January 15 of the next subsequent year. Id. 3634(b)-(c).
What follows is a discussion of the concepts the Commission
believes are pertinent to the substantive and procedural rules
governing the assumed Federal income tax for the theoretical
competitive products enterprise.
In Order No. 106, the Commission states that a simplified approach
to calculating the tax is desirable but must comply with section
3634(a). That is, the method used to compute the tax must be allowable
under chapter 1 of the Internal Revenue Code.\14\ The Commission
summarizes the Treasury's report on this topic. Treasury endorsed a
simplified approach that applied an average effective tax rate for C
corporations or the maximum statutory tax rate to the Postal Service's
net book income. It cautioned, however, that this approach ``would
require some level of PAEA intent interpretation and scope
determination by the appropriate governance bodies.'' Id.
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\14\ Order No. 106 at 23.
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The Postal Service states that the calculation of Federal taxable
income and subsequently Federal income tax in accordance with IRC
chapter 1 would be administratively onerous and the results may be
inaccurate. It advocates using Line 10 ``Net Income (Loss) Before Tax''
from the Annual Income Report as assumed taxable income and multiplying
the unadjusted amount by an effective tax rate, similar to the rate
published by the Statistics of Income (SOI) Corporation Report. Postal
Service Comments at 8, Attachment 2. It notes that the effective tax
rate would include adjustments to taxable income for permanent items
and credits of comparable corporations within the broad sector of
Transportation and Warehousing. It also notes that the SOI data, though
not current, is readily accessible and updated with a time lag.
Alternatively, it suggests that the statutory C corporation tax rate
could be applied.
The Commission, while recognizing the benefits of a simplified
approach, notes that differences between book income and taxable income
can arise from either temporary or permanent differences. Temporary
differences are the result of differences in the timing of income
recognition for book and tax purposes and will eventually reverse over
time resulting in no impact to total pretax net income. Permanent
differences are due to differences in the definition of income for book
and tax purposes. The exclusion of OSHA Fines and Penalties from
taxable income but not book income in accordance with 26 U.S.C. 162(f)
is such an example. Permanent differences have a permanent impact on
total pretax net income. Under strict compliance with IRC chapter 1,
both permanent and temporary differences must be recognized.
However, given that the assumed income tax is an intra-agency
transfer, and has neither attached penalties nor the incentive to shift
income between years, the Commission finds that temporary timing
differences do not need to be recognized for purposes of calculating
the assumed Federal income tax. In contrast, pretax book income should
be adjusted for permanent differences. The calculation of taxable
income for competitive products income is: Pretax Net Income as
reported on the Annual Income Report less permanent differences related
to competitive products. Given the intent of the PAEA to compute
taxable income pursuant to IRC chapter 1, the Commission concludes that
this alternative approach to computing taxable income is consistent
with section 3634 and offers the Postal Service a simplified, cost-
effective means for calculating the assumed Federal income tax.
The Commission concurs with Treasury's recommendation of the
simplified method of computing the assumed Federal income tax using the
highest marginal statutory tax rate, currently set at 35%. The
Commission notes that because corporate tax law allows for certain
deductions, exclusions, and credits, corporations are unlikely to pay
tax at the statutory tax rate. However, the Postal Service also will be
allowed under the final rules to avail itself of applicable deductions,
exclusions, and credits if it so chooses.
The Postal Service's proposed alternative of applying the SOI tax
rate is flawed. First and foremost, the companies identified in the SOI
are not representative of the Postal Service. The effective tax rates
of the sample corporations may result from unique tax positions,
credits, foreign taxes, IRS audit adjustments and historical net
operating losses that would not be comparable to the rate applicable to
the Postal Service. In fact, the Commission believes that there are
very few, if any, C corporations that would be comparable to the Postal
Service, given its status as an independent establishment of the
executive branch of the United States Government. Secondly, the
referenced rates are not current.
The Commission's simplified approach applies the statutory C
corporation Federal income tax rate to the competitive products
enterprise's pretax net income less permanent differences related to
competitive products. See rule 3060.40.
In lieu of simply applying the statutory C corporations' tax rate
to the theoretical competitive products enterprise pretax income
adjusted for permanent differences, the Postal Service may elect, under
the proposed rules, to avail itself of various deductions and/or
credits under chapter 1 of the IRC. See rule 3060.40. This option is
available to the extent the Postal Service wishes to use it to reduce
the competitive products enterprise's assumed Federal income tax.
The Commission does not want to impose unnecessary burdens on the
Postal Service, and it finds that using either of these approaches to
calculate the assumed Federal income tax will be neither burdensome nor
costly. The complexity of computing the appropriate tax rate and income
tax due for the theoretical competitive products enterprise under
chapter 1 of the IRC is largely determined by the specific tax
treatments the Postal Service chooses to apply. The Postal Service may
choose to take any or all appropriate deductions and/or credits;
however, the costs of attempting to reduce the transfer payment must be
weighed against the benefits.\15\
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\15\ See Docket No. PI2008-2, Reply Comments of the Parcel
Shippers Association on Treasury Report, May 1, 2008, at 3,
suggesting that any expenditure to reduce the assumed tax payment
would represent a net loss to the Postal Service.
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NOL. The Public Representative recommends that the mechanics of the
NOL provision be revised to align it closer to IRC chapter 1. The
Postal Service agrees, and both parties submitted suggested revisions.
The Commission's final rules reflect these suggestions.
The carry back and carry forward provisions of a NOL smooth the
disparity in fluctuating incomes caused by the use of an annual
accounting period. A carry back of a competitive products NOL resulting
in the refund of previously transferred tax remittances to the Postal
Service Fund should not be viewed as a prohibited cross-subsidy by
market dominant products of competitive products since the refund
[[Page 79260]]
cannot exceed the tax paid for the prior two years. The competitive
products enterprise would not be receiving any funds in excess of what
it has paid to the market dominant products. The NOL provision should
be viewed as the same type of tax treatment any Postal Service
competitor would be permitted to claim under chapter 1 of the IRC.\16\
26 U.S.C. 172.
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\16\ The following example is illustrative of the possible use
of NOLs for the theoretical competitive products enterprise tax
liability computation: In fiscal years 2008 and 2009, the
competitive products enterprise earned $150,000,000 in assumed
taxable income and transferred $52,500,000 ($150,000,000 x 35%) in
assumed Federal income tax from the Competitive Products Fund to the
Postal Service Fund. Then in year 2010 the competitive products
enterprise reported a loss of $60,000,000, resulting in a refund of
assumed Federal income taxes transferred in prior years of
$21,000,000 ($60,000,000 x 35%). The refund resulting from the NOL
carry back is appropriate as it would not exceed the total assumed
Federal income taxes paid in the prior two years and as such should
not be viewed as a cross-subsidy of competitive products by market
dominant products. This would be the same tax treatment that would
be available to any regular domestic corporation under section 172
of chapter 1 of the Internal Revenue Code.
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Statute of limitations. The Public Representative requests
expansion of certain provisions relating to the statute of limitations
for addressing errors in the assumed Federal income tax calculation on
competitive products. The Commission adopts the 3-year statute of
limitations under 26 U.S.C. 6501(a). The Commission is aware that
longer statutes of limitations are available under IRC chapter 1. The
Commission reasons that there will be only one annual filing, with
potentially complicated issues addressed in advance of filing, and as
such, it does not see any need to extend the proposed period.
Investment income. Under section 2011, funds from Competitive
Products in excess of current needs may be invested in Treasury
obligations, or in any other investment choice with the consent of the
Secretary of the Treasury. Income generated from the investment of
excess monies from competitive products would be reported as a separate
line item on the Income Report and could be netted with the related
cost, if any, for the generation of such income. The Public
Representative requests clarification of the tax treatment of this
income.
Income derived from the investment in corporate stock would be
subject to taxation pursuant to 26 U.S.C. 243 and a deduction for
dividends received would be allowed. The dividends received deduction
(DRD) is generally 70% (but can be 80% or 100% depending on the
ownership percentage) of dividends received from U.S. taxable
corporations. The 70% and 80% DRD is limited to 70% and 80%,
respectively, of taxable income computed without the DRD, net operating
loss carryovers, and capital loss carry backs. The limitation is
disregarded if a net operating loss results after deducting the general
rule DRD.
Income derived from the investment in entities exempt from tax
under section 501 or 521 of the IRC would not be reduced or offset by
expenses incurred in the generation of such income, including the
dividends received deduction.
V. Section-by-Section Analysis
Below, the Commission provides a concise description of each rule
designed to assist readers in understanding the scope and nature of the
rules.
Rule 3060.1 Scope. This provision sets forth the scope of the
Postal Service's obligation with regard to the assumed Federal income
tax due on competitive products income. On an annual basis, the Postal
Service must calculate the assumed Federal income tax on competitive
products income and transfer any tax due from the Competitive Products
Fund to the Postal Service Fund.
Rule 3060.10 Costing. This rule defines income subject to tax as
competitive products revenue minus competitive products costs.
Competitive products costs are defined as volume-variable costs plus
product-specific costs plus assigned share of institutional costs. All
costs are to be calculated using the methodologies most recently
approved by the Commission.
Rule 3060.11 Valuation of Assets. This rule sets forth the basis
for assigning assets to the theoretical competitive products
enterprise.
Rule 3060.12 Asset Allocation. This rule requires the Postal
Service to allocate all assets between competitive and market dominant
products within 6 months of the effective date of the rule and to use
these allocations to prepare the allocated assets and liabilities
report required by rule 3060.30. The Commission must approve the
methods of allocation.
Rule 3060.13 Valuation of Liabilities. This rule requires the
Postal Service to allocate all liabilities between competitive and
market dominant products within 6 months of the effective date of the
rule and to use these allocations to prepare the allocated assets and
liabilities report required by rule 3060.30. The Commission must
approve the methods of allocation.
Rule 3060.14 Statement of Allocated Assets and Liabilities for
Competitive Products. This rule directs the Postal Service to prepare
and submit a Statement of Allocated Assets and Liabilities for
Competitive Products no later than 90 days after the close of FY 2010.
Rule 3060.20 Reports. This rule sets forth the accounting
procedures to be used for reporting on the theoretical competitive
products enterprise. It sets the deadline for filing the reports at 90
days after the close of the fiscal year (with the exception of FY
2008); requires that each report include workpapers citing all numbers
to primary sources and notes that provide summary descriptions of
computations used, assumptions made, and other relevant information;
specifies the books of accounts and data collection systems to be used;
and requires the Postal Service to use the same accounting practices
for future reports as approved by the Commission in its review of the
FY 2008 reports, including changes adopted by the Commission. The rule
also specifies the procedures which the Postal Service must use for any
proposed changes in accounting practices.
Rule 3060.21 Income Report. This rule requires the Postal Service
to file an income report for the theoretical competitive products
enterprise and specifies the form and content of the report.
Rule 3060.22 Financial Status Report. This rule requires the Postal
Service to file a report showing changes in net income, financial
obligations, and financial investments for the theoretical competitive
products enterprise and specifies the form and content of the report.
Rule 3060.23 Identified Property and Equipment Assets Report. This
rule requires the Postal Service to file a report showing net book
value for assets devoted to the theoretical competitive products
enterprise and specifies the form and content of the report.
Rule 3060.24 Competitive Products Fund Report. This rule requires
the Postal Service to file with the Commission a copy of the report
filed within 90 days of the end of the previous fiscal year with the
Secretary of the Treasury pursuant to 39 U.S.C. 2011(i)(1).
Rule 3060.30 Statement of Allocated Assets and Liabilities for
Competitive Products. This rule requires the Postal Service to file a
report showing how total assets and liabilities of the Postal Service
are allocated to the theoretical
[[Page 79261]]
competitive products enterprise and specifies the form and content of
the report.
Rule 3060.31 Initial Filing. This rule sets the date for filing the
first Statement of Allocated Assets and Liabilities at 90 days after
the close of FY 2010, two years later than for other reports.
Rule 3060.40 Calculation of the Assumed Federal Income Tax. This
rule addresses how the assumed Federal income tax must be calculated
and discusses the timing of such calculations. The rule states that the
assumed Federal income tax on competitive products income must be
calculated in compliance with chapter 1 of the IRC. A calculation under
chapter 1 of the IRC requires the computation of the competitive
products enterprise's assumed tax liability at either the section 11
(regular) or section 55(b)(1)(B) (AMT) tax rates, as applicable. The
provision further provides that no estimated Federal income taxes need
to be calculated or paid and also states that no state, local, or
foreign income taxes need to be calculated or paid.
With regard to the timing of the calculation of the assumed Federal
income tax, the rule provides that the end of the fiscal year for the
calculation of the tax shall be September 30 (which coincides with the
Postal Service's regular fiscal year end). The provision further
requires that the assumed Federal income tax must be calculated by
January 15 of the following year.
Rule 3060.41 Supporting Documentation. This rule specifies the
underlying details that the Postal Service must provide to support its
calculation of tax liability under rule 3060.40.
Rule 3060.42 Commission Review. This rule states that the
Commission will solicit public comments on and review the documentation
submitted under rule 3060.41 and issue an order on its findings by July
15. The proposed rule also states that the Commission may order the
Postal Service to cure or explain any errors, omissions, or other
deficiencies discovered within 3 years of a filing pursuant to rule
3060.40.
Rule 3060.43 One-Time Extension. This rule allows for a one-time
extension of 6 months, until July 15, 2009, for the calculation of the
assumed Federal income tax due for the fiscal year ending September 30,
2008.
Rule 3060.44 Annual Transfer from Competitive Products Fund to the
Postal Service Fund. This rule provides a ``payment'' method for the
assumed Federal income tax due on competitive products' income. On an
annual basis, the Postal Service must transfer the assumed Federal
income tax due on competitive products income from the Competitive
Products Fund to the Postal Service Fund. As long as a tax is actually
due, it must be transferred to the Postal Service Fund no later than
January 15 of the year following the close of the fiscal year. As with
the calculation in rules 3060.40 and 3060.43, a one-time 6-month
extension, until July 15, 2009, is granted for the transfer of the
assumed Federal income tax due for fiscal year end September 30, 2008.
Under this rule, if competitive products enterprise's assumed
taxable income for a given fiscal year is negative, the Postal Service
is not required to pay a tax for that year, but may be entitled to
claim a loss. If a payment was made to the Postal Service Fund in the
previous year, the Postal Service may transfer the lesser of (1) the
amount paid into the Postal Service Fund in the past 2 years, or (2)
the amount of the hypothetical tax on the loss. The hypothetical tax on
the loss should be computed as the statutory tax rate multiplied by the
amount of the loss. This transfer must also be made no later than
January 15 of the year following the end of the fiscal year. If,
however, no payment was made into the Postal Service Fund in the
previous 2 years, the loss may only be carried forward and offset
against any calculated assumed Federal taxable income on competitive
products income for the following 20 years.
It is Ordered:
1. The Commission hereby adopts final rules on accounting practices
and tax rules for Competitive Products for incorporation into the
Commission's Rules of Practice and Procedure at 39 CFR 3060.
2. The rules referred to in ordering paragraph 1 will take effect
30 days after publication in the Federal Register.
3. The Secretary shall arrange for publication of this Order in the
Federal Register.
List of Subjects in 39 CFR Part 3060
Administrative practice and procedure, Postal Service, Reporting
and recordkeeping requirements.
By the Commission.
Steven W. Williams,
Secretary.
0
For the reasons stated in the preamble, the Postal Regulatory
Commission amends 39 CFR chapter III by adding part 3060 to read as
follows:
PART 3060--ACCOUNTING PRACTICES AND TAX RULES FOR THE THEORETICAL
COMPETITIVE PRODUCTS ENTERPRISE
Sec.
3060.1 Scope.
3060.10 Costing.
3060.11 Valuation of assets.
3060.12 Asset allocation.
3060.13 Valuation of liabilities.
3060.14 Competitive products enterprise statement of allocated
assets and liabilities.
3060.20 Reports.
3060.21 Income report.
3060.22 Financial status report.
3060.23 Identified property and equipment assets report.
3060.24 Competitive products fund report.
3060.30 Statement of allocated assets and liabilities for
competitive products.
3060.31 Initial filing.
3060.40 Calculation of the assumed Federal income tax.
3060.41 Supporting documentation.
3060.42 Commission review.
3060.43 Annual transfer from competitive products fund to Postal
Service fund.
Authority: 39 U.S.C. 503, 2011, 3633, 3634.
Sec. 3060.1 Scope.
The rules in this part are applicable to the Postal Service's
theoretical competitive products enterprise developed pursuant to 39
U.S.C. 2011 and 3634 and to the Postal Service's obligation to
calculate annually an assumed Federal income tax on competitive
products income and transfer annually any such assumed Federal income
tax due from the Competitive Products Fund to the Postal Service Fund.
Sec. 3060.10 Costing.
(a) The assumed taxable income from competitive products for the
Postal Service's theoretical competitive products enterprise for a
fiscal year shall be based on total revenues generated by competitive
products during that year less the costs identified in paragraph (b) of
this section calculated using the methodology most recently approved by
the Commission.
(b) The net income for the Postal Service's theoretical competitive
products enterprise shall reflect the following costs:
(1) Attributable costs, including volume variable and product
specific costs; and
(2) The appropriate share of institutional costs assigned to
competitive products by the Commission pursuant to 39 U.S.C.
3633(a)(3).
Sec. 3060.11 Valuation of assets.
For the purposes of 39 U.S.C. 2011, the total assets of the Postal
Service
[[Page 79262]]
theoretical competitive products enterprise are the greater of:
(a) The percentage of total Postal Service revenues and receipts
from competitive products times the total net assets of the Postal
Service, or
(b) The net assets related to the provision of competitive products
as determined pursuant to Sec. 3060.12.
Sec. 3060.12 Asset allocation.
Within 6 months of January 23, 2009, and for each fiscal year
thereafter, the Postal Service will develop the net assets of the
theoretical competitive products enterprise as follows:
(a) Identify all asset accounts within the Postal Service's Chart
of Accounts used solely for the provision of competitive products.
(b) Identify all asset accounts within the Postal Service's Chart
of Accounts used solely for the provision of market dominant products.
(c) The portion of asset accounts in the Postal Service's Chart of
Accounts that are not identified in either paragraph (a) or paragraph
(b) of this section shall be assigned to the Postal Service theoretical
competitive products enterprise using a method of allocation based on
appropriate revenue or cost drivers approved by the Commission.
(d) Within 6 months of January 23, 2009, the Postal Service shall
submit to the Commission for approval a proposed methodology detailing
how each asset account identified in the Chart of Accounts shall be
allocated to the theoretical competitive products enterprise and
provide an explanation in support of each allocation.
(e) If the Postal Service desires to change the methodologies
outlined above, it shall utilize the procedures provided in Sec.
3050.11 of this chapter.
Sec. 3060.13 Valuation of liabilities.
Within 6 months of January 23, 2009, and for each fiscal year
thereafter, the Postal Service will develop the liabilities of the
theoretical competitive products enterprise as follows:
(a) Identify all liability accounts within the Postal Service's
Chart of Accounts used solely for the provision of competitive
products.
(b) Identify all liability accounts within the Postal Service's
Chart of Accounts used solely for the provision of market dominant
products.
(c) The portion of liability accounts in the Postal Service's Chart
of Accounts that are not identified in either paragraph (a) or
paragraph (b) of this section shall be assigned to the theoretical
competitive products enterprise using a method of allocation based on
appropriate revenue or cost drivers approved by the Commission.
(d) Within 6 months of the effective date of these rules, the
Postal Service shall submit to the Commission for approval a proposed
methodology detailing how each liability account identified in the
Chart of Accounts shall be allocated to the theoretical competitive
products enterprise and provide an explanation in support of each
allocation.
(e) If the Postal Service desires to change the methodologies
outlined above, it shall utilize the procedures provided in Sec.
3050.11 of this chapter.
Sec. 3060.14 Competitive products enterprise statement of allocated
assets and liabilities.
The Postal Service will report the assets and liabilities of the
theoretical competitive products enterprise as computed under
Sec. Sec. 3060.12 and 3060.13 in the format as prescribed under Sec.
3060.30 for each fiscal year starting with FY 2010.
Sec. 3060.20 Reports.
(a) Beginning with reports for FY 2009, the Postal Service shall
file with the Commission each of the reports required by this part by
no later than 90 days after the close of each fiscal year. For FY 2008,
the Postal Service may file these reports by January 15, 2009, with the
exception of the report required by Sec. 3060.24.
(b) Each report shall include workpapers that cite all numbers to
primary sources and such other information needed to present complete
and accurate financial information concerning the provision of
competitive products.
(c) Each report shall utilize the same books of accounts and data
collection systems used to produce the report required by part 3050 of
this chapter.
(d) Each report shall include summary descriptions of computations
used, assumptions made, and other relevant information in the form of
notes to the financial statements.
(e) A one-time extension until January 15, 2009, shall be permitted
for the submission of the reports due for fiscal year ending September
30, 2008.
(f) The accounting practices used by the Postal Service in the
reports filed for FY 2008, as approved by the Commission, shall be used
for all future reports until such time as they may be changed by the
Commission. If the Postal Service desires to change such practices, it
shall utilize the procedures provided in Sec. 3050.11 of this chapter.
Sec. 3060.21 Income report.
The Postal Service shall file an Income Report in the form and
content of Table 1, below.
Table 1--Competitive Products Income Statement--PRC Form CP-01
[$ in 000s]
----------------------------------------------------------------------------------------------------------------
Percent Percent
FY 20xx FY 20xx-1 change from change from
SPLY SPLY
----------------------------------------------------------------------------------------------------------------
Revenue:................................................ $x,xxx $x,x xxx xx.x
xx
(1) Mail and Services Revenues...................... xxx xxx xx xx.x
(2) Investment Income............................... x,xx x,xxx xxx xx.x
(3) Total Competitive Products Revenue..............
Expenses:
(4) Volume-Variable Costs........................... x,xxx x,xxx xxx xx.x
(5) Product Specific Costs.......................... x,xxx x,xxx xxx xx.x
(6) Total Competitive Products Attributable Costs... x,xxx x,xxx xxx xx.x
(7) Net Income Before Institutional Cost x,xxx x,xxx xxx
Contribution.......................................
(8) Required Institutional Cost Contribution........ x,xxx x,xxx $xxx x.x.x
(9) Net Income (Loss) Before Tax.................... x,xxx x,xxx $xxx xx.x
(10) Assumed Federal Income Tax..................... x,xxx x,xxx $xxx xx.x
(11) Net Income (Loss) After Tax.................... x,xxx x,xxx $xxx xx.x
----------------------------------------------------------------------------------------------------------------
Line (1): Total revenues from Competitive Products volumes and Ancillary Services.
[[Page 79263]]
Line (2): Income provided from investment of surplus Competitive Products revenues.
Line (3): Sum total of revenues from Competitive Products volumes, services, and investments.
Line (4): Total Competitive Products volume variable costs as shown in the Cost and Revenue Analysis (CRA)
report.
Line (5): Total Competitive Products product specific costs as shown in the CRA report.
Line (6): Sum total of Competitive Products costs (sum of lines 4 and 5).
Line (7): Difference between Competitive Products total revenues and attributable costs (line 3 less line 6).
Line (8): Minimum amount of Institutional Cost contribution required under 39 CFR 3015.7 of this chapter.
Line (9): Line 7 less line 8.
Line (10): Total assumed Federal income tax as calculated under 39 CFR 3060.40.
Line (11): Line 9 less line 10.
----------------------------------------------------------------------------------------------------------------
Sec. 3060.22 Financial status report.
The Postal Service shall file a Financial Status Report in the form
and content of Table 2, below.
Table 2--Annual Summary of Competitive Products Financials--PRC Form CP-02
[$ in 000s]
----------------------------------------------------------------------------------------------------------------
Beginning value Change from prior year Ending value
----------------------------------------------------------------------------------------------------------------
(1) Cumulative Net Income (Loss)
After Assumed Federal Income Tax.
(2) Total Financial Obligations (List
of Financial Obligations).
(3) Total Financial Investments (List
of Financial Investments).
----------------------------------------------------------------------------------------------------------------
Line 1: Beginning Value: Sum total of Net Income (Loss) as of October 1 of Reportable Fiscal Year.
Change from Prior Year: Amount of Net Income (Loss) of Reportable Fiscal Year.
Ending Value: Sum of Beginning Value and the Change from Prior Year.
Line 2: Beginning Value: Sum total of Financial Obligations as of October 1 of Reportable Fiscal Year.
Change from Prior Year: Amount of Net Financial Obligations of Reportable Fiscal Year.
Ending Value: Sum of Beginning Value and the Change from Prior Year.
Line 3: Beginning Value: Sum total of Financial Investments as of October 1 of Reportable Fiscal Year.
Change from Prior Year: Amount of Net Financial Investments of Reportable Fiscal Year.
Ending Value: Sum of Beginning Value and the Change from Prior Year.
----------------------------------------------------------------------------------------------------------------
Sec. 3060.23 Identified property and equipment assets report.
The Postal Service shall file an Identified Property and Equipment
Assets Report in the form and content of Table 3, below.
Table 3--Competitive Products Property and Equipment Assets--PRC Form CP-03
[$ in 000s]
----------------------------------------------------------------------------------------------------------------
Finance Asset Asset Accumulated Net book
Finance No. location identifier description Cost depreciation value
----------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Total....................... ........... ........... .............. $x,xxx $x,xxx $x,xxx
----------------------------------------------------------------------------------------------------------------
Sec. 3060.24 Competitive products fund report.
Within 90 days of the close of each fiscal year the Postal Service
will provide the most recent report of the activity of the Competitive
Products Fund as provided to the Secretary of the Treasury under 39
U.S.C. 2011(i)(1).
Sec. 3060. 30 Statement of allocated assets and liabilities for
competitive products.
(a) The Postal Service shall file a Statement of Allocated Assets
and Liabilities for Competitive Products in the form and content of
Table 4, below.
[[Page 79264]]
Table 4--Statement of Allocated Assets and Liabilities for Competitive Products--PRC Form CP-04
[$ in millions]
----------------------------------------------------------------------------------------------------------------
FY20XX FY 20XX-1
USPS annual competitive competitive Distributed on
report products products basis of:
----------------------------------------------------------------------------------------------------------------
Total net assets
Cash and Cash Equivalents....................... $x,xxx $x,xxx $x,xxx
Net Accounts Receivable......................... x,xxx x,xxx x,xxx
Supplies, Advances and Prepayments.............. x,xxx x,xxx x,xxx
Appropriations Receivable--Revenue Forgone...... x,xxx x,xxx x,xxx
---------------------------------------------------------------
Total Current Assets.................... x,xxx x,xxx x,xxx
Property and Equipment:
Buildings................................... x,xxx x,xxx x,xxx
Leasehold Improvements...................... x,xxx x,xxx x,xxx
Equipment................................... x,xxx x,xxx x,xxx
Land........................................ x,xxx x,xxx x,xxx
Accumulated Depreciation.................... x,xxx x,xxx x,xxx
Construction in Progress.................... x,xxx x,xxx x,xxx
---------------------------------------------------------------
Total Property and Equipment, Net....... x,xxx x,xxx x,xxx
---------------------------------------------------------------
Total Assets............................ $x,xxx $x,xxx $x,xxx
---------------------------------------------------------------
Total Assets Determined from 39 U.S.C. $x,xxx $x,xxx $x,xxx
2011(e)(5).............................
----------------------------------------------------------------------------------------------------------------
Total net liabilities
Liabilities
Current Liabilities:
Compensation and Benefits............... x,xxx x,xxx x,xxx
Payables and Accrued Expenses........... x,xxx x,xxx x,xxx
Customer Deposit Accounts............... x,xxx x,xxx x,xxx
Deferred Revenue-Prepaid Postage........ x,xxx x,xxx x,xxx
Outstanding Postal Money Orders......... x,xxx x,xxx x,xxx
Prepaid Box Rent and Other Deferred x,xxx x,xxx x,xxx
Revenue................................
Debt.................................... x,xxx x,xxx x,xxx
Non-Current Liabilities:.................... x,xxx x,xxx x,xxx
Workers' Compensation................... x,xxx x,xxx x,xxx
Employees Accumulated Leave............. x,xxx x,xxx x,xxx
Deferred Appropriation and Other Revenue
Long-Term Portion of Capital Lease x,xxx x,xxx x,xxx
Obligations............................
Deferred Gains on Sales of Property............. x,xxx x,xxx x,xxx
Contingent Liabilities and Other................ x,xxx x,xxx x,xxx
---------------------------------------------------------------
Total Liabilities................... x,xxx x,xxx x,xxx
----------------------------------------------------------------------------------------------------------------
(b) The Statement of Allocated Assets and Liabilities for
Competitive Products shall detail the analysis and selection of methods
of allocation of total assets and liabilities to the competitive
products.
Sec. 3060.31 Initial filing.
The due date for filing the initial Statement of Allocated Assets
and Liabilities for Competitive Products is 90 days after the close of
FY 2010.
Sec. 3060.40 Calculation of the assumed Federal income tax.
(a) The assumed Federal income tax on competitive products income
shall be based on the Postal Service theoretical competitive products
enterprise income statement for the relevant year and must be
calculated in compliance with chapter 1 of the Internal Revenue Code by
computing the tax liability on the taxable income from the competitive
products of the Postal Service theoretical competitive products
enterprise at the section 11 (regular) or section 55(b)(1)(B)
(Alternative Minimum Tax) tax rates, as applicable.
(b) The end of the fiscal year for the annual calculation of the
assumed Federal income tax on competitive products income shall be
September 30.
(c) The calculation of the assumed Federal income tax due shall be
submitted to the Commission no later than the January 15 following the
close of the fiscal year referenced in paragraph (b) of this section,
except that a one-time extension of 6 months, until July 15, 2009,
shall be permitted for the calculation of the assumed Federal income
tax due for fiscal year end September 30, 2008.
(d) No estimated Federal income taxes need to be calculated or
paid.
(e) No state, local, or foreign income taxes need to be calculated
or paid.
Sec. 3060.41 Supporting documentation.
(a) In support of its calculation of the assumed Federal income
tax, the Postal Service shall file detailed schedules reporting the
Postal Service theoretical competitive products enterprise assumed
taxable income, effective tax rate, and tax due.
(b) Adjustments made to book income, if any, to arrive at the
assumed taxable income for any year shall be submitted to the
Commission no later than January 15 of the following year.
Sec. 3060.42 Commission review.
(a) Interested persons shall be provided an opportunity to comment
on the filing of the calculation of the assumed Federal income tax and
supporting documentation.
[[Page 79265]]
(b) The Commission will review the calculation of the assumed
Federal income tax submitted pursuant to Sec. 3060.40, the supporting
documentation submitted pursuant to Sec. 3060.41, and any comments.
The Commission then will issue an order either approving the
calculation of the assumed Federal income tax for that tax year or take
such other action as the Commission deems appropriate, including, but
not limited to, directing the Postal Service to file additional
supporting materials.
(c) The Commission will issue such order no later than 6 months
after the Postal Service's filing pursuant to Sec. 3060.40.
(d) Notwithstanding paragraph (b) of this section, if the
Commission determines within 3 years of its submission that the Postal
Service's calculation of an assumed Federal income tax is incomplete,
inaccurate, or otherwise deficient, the Commission will notify the
Postal Service in writing and provide it with an opportunity to cure or
otherwise explain the deficiency. Upon receipt of the Postal Service's
responsive pleading, the Commission may order such action as it deems
appropriate.
Sec. 3060.43 Annual transfer from competitive products fund to Postal
Service fund.
(a) The Postal Service must on an annual basis transfer the assumed
Federal income tax due on competitive products income from the
Competitive Products Fund to the Postal Service Fund.
(b) If the assumed taxable income from competitive products for a
given fiscal year is positive, the assumed Federal income tax due,
calculated pursuant to Sec. 3060.40, shall be transferred to the
Postal Service Fund no later than the January 15 following the close of
the relevant fiscal year.
(c) A one-time extension of 6 months, until July 15, 2009, shall be
permitted for the transfer of the assumed Federal income tax due for
fiscal year ending September 30, 2008.
(d) If assumed taxable income from competitive products for a given
fiscal year is negative, and:
(1) A payment was made to the Postal Service Fund for the previous
tax year, a transfer equaling the lesser of the amount paid into the
Postal Service Fund for the past 2 tax years or the amount of the
hypothetical tax on the loss shall be made from the Postal Service Fund
to the Competitive Products Fund no later than the January 15 following
the close of the relevant fiscal year; or
(2) No payment has been made into the Postal Service Fund for the
previous 2 tax years, the loss may be carried forward and offset
against any calculated assumed Federal taxable income on competitive
products income for 20 years.
[FR Doc. E8-30613 Filed 12-23-08; 8:45 am]
BILLING CODE 7710-FW-P