Chief Counsel Advice 202346017 Released November 17, 2023 Advice

Territory inventory sales may require source allocation

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This page covers one taxpayer's ruling from 2023, which can't be cited as precedent. Ezel answers your situation under the current Code and IRS guidance, with citations.

Not precedent. Under 26 U.S.C. § 6110(k)(3), this written determination may not be used or cited as precedent. It resolved one taxpayer's situation on its specific facts, and identifying details were redacted by the IRS before release. The official IRS release (linked on this page as a PDF) is the authoritative source.
About this page: The plain-English summary and ruling snapshot below were written by Ezel based on the official IRS release. The full text is the IRS's own document.
View official IRS release (PDF)

Plain-English summary

Chief Counsel read section 863(b)(2)'s production sourcing rule as applying when the taxpayer selling inventory also produced it. A taxpayer that merely purchased the property may fall under the general sourcing rule. Section 863(b)(3), however, supplies another exception when inventory is purchased in a U.S. territory and sold in the United States. In that situation, source is allocated between the two jurisdictions. The advice proposed a short disclaimer for Form 5074 explaining that inventory purchased or produced in a territory and sold in the United States is sourced by allocation.

Ruling snapshot

  • Question: When do the section 863 allocation rules displace the general source rule for inventory sales?
  • Outcome: Advice given, allocation applies to specified territory inventory transactions
  • Key authorities: IRC § 863(b)(2) and (3)

Full text (IRS public release)

 ID:       CCA_2023053015371617                        [Third Party Communication:

 UILC:     863.00-00                                   Date of Communication: Month DD, YYYY]

Number: 202346017
Release Date: 11/17/2023
From: --------------------
Sent: Tuesday, May 30, 2023 3:37:16 PM
To: -----------------
Cc: -----------------------------------
Bcc:
Subject: RE: TPC 2023 Form 5074 - WLI#2


My reading of 863(b)(2) is that the production rule for sourcing only applies where the
taxpayer-seller is also the producer (“from the sale or exchange of inventory property
[…] produced (in whole or in part) by the taxpayer”. Where the taxpayer-seller merely
purchased the property, the general rule may apply. However, 863(b)(3) is yet another
exception to the general rule. It applies where inventory is purchased in a territory, and
then sold in the US, in which case source is again allocated between the two
jurisdictions. Therefore, I think a disclaimer along the lines of “However, the income from
the sale of inventory purchased or produced by a seller within a U.S. territory and sold within the United
States is sourced based on an allocation” would be enough to clarify where the general rule does not
apply.

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