《一个美丽的法案》（OBBBA）改变了第163（j）条下的资本化利息规则

Samuel Pollack*Baker McKenzieReproducedwith permission from Tax Management InternationalJournal,7/18/2025. Copyright@2025by Bloomberg Industry Group,Inc. (800-372-1033)http://www.bloombergindustry.com 2permitted US shareholders making a “CFC Group” election to include CFC Inclusions in ATI to theextent of the CFC Group’s excess §163(j) Limitation.Two of the Act’s three major changes relate to the computation of ATI. First, benefiting taxpayers, theATI computation permanently excludes depreciation and amortization. Second, harming taxpayers, theAct expressly excludes CFC Inclusions from ATI. Thatis, making a CFC Group election no longer givesa US shareholder access to its CFCs’ excess §163(j) Limitation. The focus of this article, however, is onthe third major change to §163(j): the change to the treatment of capitalized interest expenditures.In general, prior to the Act, a taxpayer could gain access to some relief from §163(j) by capitalizinginterest expenditures and, later, reducing taxable income in a manner not subject to §163(j). For example,interest capitalized into inventory could be benefited as COGS, and interest capitalized into the basis ofbusiness property could be benefited as depreciation / amortization deductions. The Act limits ataxpayer’s ability to gain such relief from §163(j) by subjecting capitalized interest to §163(j).The Act generally treats capitalized interest as interest expense for the purpose of applying §163(j). Thus,for example, if in 2026 a taxpayer has: (i) a §163(j) Limitation of $100x; (ii) $70x of interest expense, and(iii) $50x of capitalized interest, §163(j) applies to the taxpayer for 2026 because total capitalized interestand interest expense exceed $100x.Applying §163(j) to both interest expense and capitalized interest, the statute’s limitation first applies todisallowthe taxpayer’sdeduction for interest expenseand then applies toreduce capitalization of interest.Thus, in the example above, thetaxpayer’s deduction from interest expense isreduced from$70xto $50xand the taxpayer’s capitalized interest remains at $50x.Consider an alternative scenario, when, in 2026a taxpayer has: (i) a §163(j) Limitation of $100x,(ii)$10x of interest expense, and (iii) $150x of capitalized interest. In this scenario, thetaxpayer’s$10x ofinterest expense is disallowed and $50x ofthe taxpayer’sinterest expenditureis not permitted to becapitalized.What happens to the $50xof interest expenditure that the taxpayer is not permitted tocapitalize (or deduct)? That amount is carried forward and treated, for carryforward purposes, as aninterest expense. In this regard, there are certain instances in which §163(j) may actuallyaccelerate ataxpayer’s deductions from interest. Returning to the example above, assume that capitalized interest iscapitalized into property that amortizes ratably over a period of ten years. Assume further that, in 2027,the taxpayer has nointerest expense orcapitalized interest, and the same §163(j) Limitation ($100x). If§163(j) did not exist, in 2026, the taxpayer would have (at most) $25x of deductions from interest ($10xof interest expense and $15x from amortization ofcapitalized interest), and, in 2027, the taxpayer wouldhave $15x of deductions(all from amortizationof capitalized interest). Under amended §163(j), however, 3in 2026, the taxpayer has $10x of deductions from interest ($0 of interest expense and $10x fromamortizationof capitalized interest), and, in 2027, the taxpayer has $60x of deductions ($0 from interestexpense, $10from amortization of capitalized interest,and $50xas a §163(j) carryforward treated asinterest expense). Treasury may seek to alter this outcome in regulations, but such regulations wouldappear to run right up against relatively clear directions from the statute.As much fun as this provision has been, we come back down to earth with the last operative rule relatingto capitalized interest. This change kicks out interest capitalized under§263(g)and§263A(f)from thedefinition of “business interest.” In other words, so long as interest is capitalized under those provisions,§163(j) does not apply to such capitalized interest. Thus, for example, if a taxpayer is required tocapitalize an interest expenditureinto inventory under §263A(f), such capitalized interest is not subject to§163(j). As a result, the capitalized interest rule focuses, for the most part, on interest capitalized under§263(a) (e.g., overhead costs related to the acquisition or productionof tangible property)and§266(interest that a taxpayer elects to capitalize as a carrying charge with respect to property).As a parting thought to ponder, consider a situation in which a taxpayer has: (i) $100x of interest expensepaid to related foreign persons,(ii) $100xof capitalized interest from payments to unrelated parties, and(iii) a §163(j) Limitation of $100x. As discussed above, in this scenario, the $100x of interest expense(paid to foreign related persons) is disallowed, and the $100x