Public Law 115-97 (the Tax Cuts and Jobs Act (TCJA)) added a new foreign income inclusion rule for global intangible low-taxed income (GILTI) under section 951A. On September 13, 2018, the Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations), addressing section 951A and related provisions. The highly anticipated Proposed Regulations largely focus on the calculation mechanics of GILTI and leave foreign tax credit and certain other important questions open to be covered by later regulations. While no timeline is listed for additional guidance, Treasury officials have made statements indicating a release within approximately 60 days.
Notably, the Proposed Regulations do not include any rules relating to:
Whether interest, rent and royalty payments from a controlled foreign corporation (CFC) to a US shareholder are in the GILTI basket for section 904(d) purposes.
Foreign tax credits (FTCs), including the assignment of the section 78 gross-up for foreign taxes deemed paid under section 960(d) and the allocation of expenses to the GILTI separate limitation basket. However, the Preamble to the Proposed Regulations indicates that the section 78 gross-up related to GILTI inclusions will be assigned to the GILTI basket in future FTC guidance.
Whether the deduction and its limitation under section 250 applies on a consolidated group basis.
Subpart F and GILTI inclusion reduction where CFC stock is sold between US parties, and the pre-sale current year earnings are not subject to US tax due to the foreign source dividend deduction under section 245A.
Whether the interest limitation under section 163(j) and the anti-hybrid provision under section 267A apply to calculate CFC tested income or loss (CFC tested income or CFC tested loss).
Importantly, the Proposed Regulations do provide that GILTI will be applied on a consolidated group basis in order to avoid potential distortions that otherwise could arise. The Proposed Regulations also provide certain rules that are not set out in the statute, including anti-avoidance rules, reporting requirements and rules for determining the GILTI inclusions for partners of domestic partnerships. In addition, the Proposed Regulations include changes to the rules for calculating a US shareholder’s “pro rata share” of subpart F income under hypothetical distribution rules, which are cross-referenced and expanded upon for purposes of determining a US shareholder’s pro rata share of the various amounts relevant to the computation of GILTI.
The Proposed Regulations are generally proposed to apply to taxable years of foreign corporations beginning after December 31, 2017, and to taxable years of US shareholders in which or with which such taxable years of the foreign corporations end.
Recap of General GILTI Rule
Under section 951A, a US shareholder must include in gross income its GILTI with respect to CFCs whose taxable years begin after December 31, 2017. A US shareholder does not compute a separate GILTI inclusion with respect to each CFC, but rather, it computes a single GILTI inclusion amount by reference to all of its CFCs. GILTI is the US shareholder’s “net CFC tested income” less its “net deemed tangible income return” (Net DTIR). Net CFC tested income is the excess, if any, of the US shareholder’s aggregate pro rata share of its CFC tested income over its aggregate pro rata share of CFC tested loss. Net DTIR is 10% of a US shareholder’s aggregate pro rata share of a qualified business asset investment (QBAI) (i.e., depreciable tangible property used in a business that produces CFC tested income) of each CFC, reduced for its “specified interest expense.” CFC tested income, CFC tested loss, QBAI, and the two components of specified interest expense, tested interest expense and tested interest income, are collectively referred to as “CFC tested items.”
A deduction is provided under section 250 for 50% (37.5% for taxable years beginning after 2025) of the amount of the GILTI inclusion in calculating the US shareholder’s taxable income, resulting in an effective rate of tax of 10.5% (13.125% for taxable years beginning after 2025). In addition, 80% of the foreign income taxes attributable to the GILTI inclusion can be claimed as an FTC, subject to the general FTC limitation rules. Before taking into account the potential limitation resulting from expense allocation to the GILTI basket, a taxpayer’s GILTI inclusion will not be subject to US residual income tax if the income has been subject to an average foreign effective rate of tax of at least 13.125% (16.40625% for taxable years beginning after 2025). As noted above, the Proposed Regulations do not provide rules with respect to the section 250 deduction or FTCs.
Discussion of Proposed Regulations
The discussion below highlights some of the key takeaways from the Proposed Regulations.
As noted above, the Proposed Regulations provide for the application of the GILTI regime on a consolidated basis, such that which CFCs are owned by which members of the group does not affect the group’s aggregate GILTI inclusion amount. Mechanically, the members’ pro rata shares of each CFC tested item other than CFC tested income are aggregated and then allocated out to each member that is a US shareholder of a tested income CFC, in proportion to each member’s share of the total CFC tested income of the group. Stock basis adjustments are provided to take into account GILTI inclusions and the sharing of CFC tested losses.
Treasury and the IRS have requested comments regarding the proposed basis adjustments and whether additional rules related to earnings and profits (E&P) adjustments or any other of the consolidated return provisions are necessary.
Determination of a US Shareholder’s Respective “Pro Rata Share” of Subpart F Income and CFC Tested Items
The Proposed Regulations modify the existing regulations under section 951 governing the computation of a US shareholder’s pro rata share of subpart F income, which generally allocated subpart F income in proportion to the amount that would be distributed on each share if all of the CFC’s current E&P were distributed on the last day of its taxable year. Most notably, the Proposed Regulations provide the government with additional flexibility in challenging a taxpayer’s asserted allocation by (1) incorporating a “facts and circumstances” analysis for purposes of the hypothetical distribution test and (2) adopting a “principal purpose” anti-abuse rule that disregards any plan or arrangement undertaken with a principal purpose of avoiding federal income taxation, including by reducing a US shareholder’s pro rata share of subpart F income. In addition, the Proposed Regulations modify the amount of the hypothetical distribution to be the greater of (i) the CFC’s current E&P or (ii) the sum of the subpart F income and tested income of the CFC.
The same hypothetical distribution rules are applied for purposes of determining a US shareholder’s pro rata share of each CFC tested item, with certain modifications described below. In general, a US shareholder’s pro rata share of each CFC tested item is determined independently of its pro rata share of any other CFC tested item.
CFC tested income. A US shareholder’s pro rata share of a CFC’s tested income is determined in the same manner as its pro rata share of subpart F income under the hypothetical distribution test. However, a special rule applies where a CFC tested loss has been allocated to any class of stock in a prior CFC inclusion year. Generally, CFC tested income is first allocated to each class of stock to the extent of the prior CFC tested loss allocation.
QBAI. A US shareholder’s pro rata share of a CFC’s QBAI generally corresponds to its pro rata share of CFC tested income. A special rule limits the QBAI allocable to preferred stock to 10 times the CFC tested income allocated to the stock.
CFC tested loss. A CFC’s tested loss is generally allocated pro rata across its common stock. Special rules apply when the common stock has zero liquidation value.
Tested interest expense. A US shareholder’s pro rata share of a CFC’s tested interest expense for a taxable year equals the amount by which the CFC’s tested interest expense reduces the shareholder’s pro rata share of CFC tested income, increases the shareholder’s pro rata share of CFC tested loss or both.
Tested interest income. A US shareholder’s pro rata share of tested interest income for a taxable year equals the amount by which the CFC’s tested interest income increases the shareholder’s pro rata share of CFC tested income, reduces the shareholder’s pro rata share of CFC tested loss or both.
The Proposed Regulations impose additional reporting requirements with respect to CFCs (a new schedule to Form 5471) and US shareholders of CFCs (new Form 8992 U.S. Shareholder Calculation of Global Intangible Low-Taxed Income (GILTI)) to provide the information required for the GILTI calculation.
Calculation of CFC Tested Income and Loss
CFC tested income and CFC tested loss are calculated by subtracting from a CFC’s gross income certain items described below (yielding “gross tested income”) and properly allocable deductions (including taxes). Section 951A does not specify the scope of the deductions that are to be taken into account, but Prop. Treas. Reg. § 1.951A-2 requires that gross income and deduction determinations be made under the existing rules of Treas. Reg. § 1.952-2 that apply in determining a CFC’s subpart F income. CFC tested income (or loss) of a CFC is therefore determined under taxable income principles as if the CFC were a domestic corporation. Consequently, only items of deduction that would be allowable in determining the taxable income of a domestic corporation may be taken into account.
Section 951A(c)(2) requires that the gross tested income of a CFC be determined without regard to certain items, including (i) effectively connected income (ECI), (ii) gross income taken into account in determining subpart F income, (iii) gross income excluded from foreign base company income (FBCI) or insurance income of the CFC by reason of the “high-tax exception” under section 954(b)(4), (iv) dividends received from a related person, and (v) any foreign oil and gas extraction income (FOGEI). The Proposed Regulations clarify that the exclusion related to the high-tax exception applies only to income that is excluded from FBCI solely by reason of an election to apply the high-tax exception.
The Proposed Regulations provide that all CFC tested items, including CFC tested income and CFC tested loss, are translated at the average exchange rate for the CFC inclusion year of the tested income CFC, consistent with the rule that applies with respect to inclusions of subpart F income.
The Proposed Regulations include what the Preamble refers to as anti-abuse provisions that prevent certain reductions in GILTI related to basis step-ups attributable to certain related-party transfers. Specifically, the Proposed Regulations disallow any loss or deduction related to stepped-up basis in depreciable or amortizable property that results from a related-party transaction entered into in 2018 before the transferor CFC is subject to the GILTI regime (i.e., before the end of its last taxable year beginning before 2018). As discussed below, the Proposed Regulations provide a similar rule disregarding basis in tangible property created in certain taxable transfers for purposes of calculating a CFC’s QBAI.
Gross Income Taken into Account in Determining Subpart F Income
The Proposed Regulations take the approach that if gross income is included in a category of subpart F income under section 952(a), it is taken into account in determining subpart F income, and therefore is excluded from gross tested income. Any E&P limitation or related recapture under section 952(c) that alters the US shareholder’s subpart F inclusion therefore does not affect the amount excluded from gross tested income. As a result, subpart F-type income is excluded from gross tested income even if there is no subpart F inclusion for the year due to the E&P limitation. Correspondingly, gross income may give rise to both a subpart F inclusion and gross tested income in a later year when section 952(c)(2) applies to treat non-subpart F-type income as included under subpart F.
Eversheds Sutherland Observation: Under the statute, a CFC’s E&P is increased by the amount of its CFC tested loss for purposes of applying the section 952(c) E&P limitation. As a result, the E&P limitation will generally only apply going forward when a CFC has E&P deductions that are not taken into account for purposes of determining CFC tested income or CFC tested loss. One relevant scenario is when there is positive subpart F income in one category of subpart F income and a subpart F loss in another category of subpart F income or a FOGEI loss, because the subpart F loss or FOGEI loss cannot give rise to a CFC tested loss. A second scenario is when the CFC has a current year E&P deduction that is not taken into account for purposes of measuring either subpart F income or CFC tested income.
Eversheds Sutherland Observation: Because a subpart F loss does not reduce CFC tested income, a taxpayer may have a GILTI inclusion attributable to a particular CFC in excess of that CFC’s net income. Similarly, because earnings treated as subpart F income due to section 952(c) recapture are not excluded from gross tested income, a taxpayer may end up with a total income inclusion under subpart F and GILTI attributable to a particular CFC in excess of that CFC’s net income.
Comments are requested on the application of the rules under Treas. Reg. § 1.952-2 for purposes of determining subpart F income, CFC tested income and CFC tested loss (specifically whether these rules should allow a CFC deduction, or require a CFC to take into account income that is expressly limited to domestic corporations). Additionally, the Proposed Regulations note that Treasury and the IRS welcome comments on other approaches to determine CFC tested income (or loss), including whether additional modifications should be made to Treas. Reg. § 1.952-2 for purposes of calculating GILTI. The Preamble notes that future guidance will be provided on the applicability of sections 163(j) and 267A for purposes of section 951A, on which taxpayers have requested guidance.
Eversheds Sutherland Observation: The Preamble indicates that questions have arisen on whether a CFC should be entitled to a dividends received deduction under section 245A, which by its terms only applies to dividends received by a domestic corporation. As the Preamble references by a citation, the Conference Committee Report to the TCJA indicates that it was the intention of Congress that section 245A would apply at the CFC level, on the basis that under the section 952 regulations, taxable income of a CFC is determined as if the CFC were a domestic corporation. Moreover, the rule of section 245A(e)(2) treating hybrid dividends received by a CFC as subpart F income would not by its terms apply if dividends to CFCs were not generally within the scope of section 245A. Accordingly, while confirmation would be welcome, there does not appear to be a significant question about the application of section 245A at the CFC level.
Qualified Business Asset Investment (QBAI)
With respect to the determination of QBAI, the Proposed Regulations fill in several definitional or computational gaps in the statute. For instance, the Proposed Regulations:
Use section 168 to define tangible property (the basis of which may be included in QBAI); the Preamble states that section 168 was adopted as the standard because there is a substantial amount of guidance related to section 168.
Provide that the requirement to determine the adjusted basis of any property using the alternative depreciation system (ADS) under section 168(g) applies regardless of the date on which the property was acquired.
Confirm that tangible property of a tested loss CFC is not taken into account in calculating QBAI.
Provide rules for annualizing the QBAI calculation for a CFC with a short tax year.
Provide rules for taking into account QBAI with respect to tangible property owned by a partnership based on the partner’s distributive share of the relevant gross income, which is all tested gross income where the property does not produce directly identifiable income.
Treasury and the IRS request comments on the proposed approach to specified tangible property held through a partnership, including the rules addressing specified tangible property that does not produce directly identifiable income.
The Proposed Regulations also include two anti-abuse rules relevant to the calculation of CFC QBAI. Under both rules, certain basis amounts of tangible property are disregarded for purposes of calculating a tested income CFC’s QBAI. Under the first rule, the basis in property is disregarded if the property is acquired with a principal purpose of reducing a US shareholder’s GILTI inclusion and the property is held temporarily but over at least one quarter close. Property held by the tested income CFC for less than a 12-month period is treated per se as temporarily held and acquired with such a principal purpose. Under the second rule, which is similar to the basis disallowance rule for CFC tested income or loss calculations, a step-up in tangible property basis is disregarded for purposes of determining QBAI to the extent the step-up is attributable to an acquisition from a related CFC after 2017 during the transferor CFC’s last taxable year beginning before 2018, except to the extent a US shareholder was subject to tax on the gain (e.g., under subpart F). The purpose of this rule is to prevent taxpayers from achieving a step-up in basis for purposes of QBAI without taking into account the gain under section 965 or GILTI.
Eversheds Sutherland Observation: The presumption that tangible property held for less than 12 months was acquired with a principal purpose of reducing GILTI and the lack of any possibility of rebuttal, imposes a significant compliance burden and potential tax cost on taxpayers that is not clearly justified by policy concerns. It is not uncommon in the context of significant business acquisitions for the acquirer to dispose of unwanted acquired assets in the period following the acquisition. This rule introduces an inefficient incentive to postpone such distributions in certain situations, and requires an after-the-fact reevaluation of a taxpayer’s QBAI calculation depending on what assets may have been disposed of, even after the relevant tax year has ended.
Specified Interest Expense
As noted above, Net DTIR is computed by subtracting specified interest expense from 10% of a US shareholder’s pro rata share of QBAI. The Proposed Regulations adopt a netting approach to determine specified interest expense, providing that specified interest expense is generally the excess, if any, of the aggregate of the US shareholder’s pro rata share of interest expense taken into account in determining the CFC tested income or CFC tested loss of the relevant CFCs over its aggregate share of interest income similarly taken into account.
Interest expense is defined broadly to include any expense or loss treated as interest expense under the Internal Revenue Code (the Code) and any other expense or loss incurred in which the use of funds is secured in consideration of the time value of money.
The Proposed Regulations exclude from this calculation certain interest expense and interest income of CFCs engaged in the active conduct of a banking, financing, or similar business or a qualifying insurance business.
Domestic Partnerships and Their Partners
The Proposed Regulations provide that a domestic partnership that is a US shareholder of a CFC will be treated as an entity for purposes of calculating GILTI attributable to any domestic partner that is not itself a US shareholder of the CFC, but as an aggregate for purposes of the GILTI calculations of a domestic partner that is a US shareholder of the CFC. Thus, partners of the US shareholder partnership that are not themselves a US shareholder take into account their distributive share of the partnership’s GILTI inclusion, while US shareholder partners are required to include such a CFC in their combined GILTI calculation, based on their indirect ownership of the CFC through the partnership. Similar rules apply in the case of tiered domestic partnerships.
Due to the extensive calculations required, the Proposed Regulations require partnerships to provide partners with both their distributive share of the partnership’s GILTI inclusion and their proportionate share of the partnership’s pro rata share of each CFC tested item.
Treasury and the IRS request comments on whether any other approach to the treatment of domestic partnerships and their partners for purposes of GILTI, including a pure entity approach or pure aggregate approach, would be more appropriate. Comments are also requested regarding appropriate adjustments related to computing a GILTI inclusion amount, in whole or in part, at the level of the partner of a domestic partnership (including the partner’s basis in the partnership, section 704(b) capital account, the partnership’s basis in CFC stock under section 961, and a CFC’s previously taxed E&P under section 959).
Interaction with Other Provisions
The Proposed Regulations contain several additional provisions addressing the interaction of GILTI with other Code provisions.
Treatment of GILTI Inclusion Amount
Under the statute, any GILTI amount included in the gross income of a US shareholder is treated in the same manner as an inclusion of subpart F income for purposes of certain specifically identified Code sections (e.g., section 959, addressing the distribution of previously taxed E&P). In response to a comment, the Proposed Regulations add section 1411 (related to the taxation of net investment income) to the list.
Eversheds Sutherland Observation: The Proposed Regulations do not add section 960(c) to the list, meaning that for the time being uncertainty remains on whether any excess FTC limitation in the GILTI basket can be relied upon in a later year to provide capacity to claim FTCs for foreign taxes imposed on the distribution of previously taxed E&P attributable to GILTI inclusions. It is anticipated that the forthcoming proposed regulations addressing FTC issues may provide guidance on the interaction of section 960(c) and GILTI.
Further, the Preamble makes four related noteworthy points: (i) because the GILTI inclusion amounts are treated as section 951(a)(1)(A) inclusions for purposes of section 959, an inclusion under section 951A is determined before an inclusion under section 951(a)(1)(B), and the Treasury and the IRS believe that a requested clarification is not needed; (ii) the Treasury and the IRS intend to issue a separate notice of proposed rulemaking to update the regulations under section 959 and section 961 to account for the TCJA’s modifications to the US international tax system, including the enactment of section 245A; (iii) separate guidance will also address the characterization of GILTI inclusions for purposes of determining the unrelated business taxable income of tax-exempt entities; and (iv) the Treasury and the IRS request comments on other areas in which the characterization of GILTI inclusion amounts is relevant, and whether, in those areas, the subpart F treatment or some other treatment would be appropriate.
Treatment of GILTI Inclusion Amount as Includable in a US Shareholder’s Gross Income
Section 267(a)(3)(B) generally permits deductions for items accrued and payable to a related CFC only when actually paid (i.e., cash method of accounting), except to the extent that the amounts attributable to these items are includable in the US shareholder’s gross income. Section 163(e)(3)(B)(i) provides a similar rule for original issue discount on debt instruments held by a related CFC. The Proposed Regulations provide that an item is treated as includable in the gross income of a US shareholder for purposes of these sections to the extent it is taken into account in determining the US shareholder’s GILTI inclusion amount (i.e., increases the pro rata share of CFC tested income, reduces the pro rata share of CFC tested loss or both).
Adjustments to CFC Basis
The Proposed Regulations also require a basis reduction in the stock of a CFC to reflect the use of CFC tested losses from that CFC in certain cases. The concern is that because a pro rata share of CFC tested loss of one CFC may offset the pro rata share of CFC tested income of another CFC in determining a US shareholder’s net CFC tested income, such loss could produce a benefit of reducing a US shareholder’s GILTI inclusion and later produce a duplicative benefit by reducing taxable gain upon the direct or indirect taxable disposition of the tested loss CFC.
Accordingly, the Proposed Regulations provide that in the case of a corporate US shareholder (excluding regulated investment companies and real estate investment trusts), for purposes of determining the gain, loss or income on the direct or indirect disposition of stock of a CFC, the basis of the stock is reduced by the net amount of CFC tested loss of the CFC that has been used to offset CFC tested income of other CFCs in calculating net CFC tested income of the US shareholder. This basis reduction is only made at the time of the disposition. If the basis reduction exceeds the adjusted basis in the stock immediately prior to the disposition, the excess amount is treated as gain from the sale of the stock.
Rules are provided for cases where a tested loss CFC is indirectly disposed of as a result of a disposition of an intervening foreign entity and for certain non-recognition transactions.
Eversheds Sutherland Observation: The basis adjustment rule is premised on the taxpayer having received a tax benefit from the use of the CFC tested loss, but in many instances use of a CFC tested loss to reduce a US shareholder’s GILTI inclusion will not reduce the US shareholder’s US tax liability. Many taxpayers will have significant excess FTCs in the GILTI basket, which cannot be carried forward or back and thus have no value. For such taxpayers, utilization of a CFC tested loss will not reduce their US tax cost; it will merely increase their unusable excess GILTI basket FTCs. Nevertheless, upon a future disposition of the tested loss CFC, the taxpayer will be required to pay tax on incremental gain due to the required basis adjustment.
The Treasury and the IRS request comments on the basis adjustment rule, including with respect to the need for (i) additional adjustments to stock basis or E&P, (ii) similar rules for non-corporate US shareholders not entitled to the dividends received deduction under section 245A, and (iii) a modification of the definition of “disposition.”
In light of the anti-abuse rules provided by the Proposed Regulations, taxpayers with fiscal year CFCs should review any anticipated or executed transactions which could impact the calculation of CFC tested income or CFC tested loss and CFC QBAI going forward. The anti-abuse rules included within the rules for calculating CFC tested income or CFC tested loss can have broad application since they also encompass property subject to amortization under section 197.
Taxpayers should take note that net income of a CFC can in certain circumstances be subject to inclusion twice under both subpart F and section 951A because CFC tested income is determined without regard to the subpart F E&P limitation under section 952(c). In addition, the Proposed Regulations will significantly increase certain taxpayers’ compliance burden to ensure appropriate application of the rules related to US shareholder partnerships and the tracking of used CFC tested losses over an ownership period in order to make required basis adjustments in CFC stock.
Those issues aside, much of the guidance in the Proposed Regulations is largely focused on the calculation of the GILTI inclusion itself. In particular, guidance with respect to the application of GILTI to consolidated groups was welcome. Nevertheless, the Proposed Regulations leave taxpayers anxious for additional guidance considering the remaining open questions related to GILTI, in particular with respect to FTCs.