IRS Notice 2018-26: Important New Guidance on the Mandatory Repatriation Tax

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This document discusses Notice 2018-26, the third IRS Notice providing guidance on the new mandatory repatriation tax under § 965.

Most importantly, the Notice sets forth extensive anti-avoidance rules in respect of transactions that reduce a taxpayer’s § 965 tax liability.  Generally, the rules apply a “principal purpose” test for determining whether a transaction is an avoidance transaction.  However, with limited exceptions, the rules presume that a transaction that occurs after November 2, 2017 and that in fact reduces a taxpayer’s § 965 tax liability was undertaken with a bad purpose and, therefore, is disregarded for purposes of determining the taxpayer’s § 965 tax liability.  Further, the rules treat a significant set of transactions per se as having been undertaken with a bad purpose.  Thus, the overall approach taken in these rules is very much like the approach taken in the § 385 regulations:  Assume a bad purpose first; ask questions later.  Calendar year taxpayers and their advisors will need to become familiar with this complex web of new rules very quickly to determine 2017 tax liability, payment of which is due April 17th.

Other portions of the Notice address various other issues under § 965, including the treatment of accrued foreign taxes, rules regarding the various elections available under § 965 and who can make them, the treatment of the § 965(c) deduction for AMT purposes, and relief from estimated tax penalties.  Treasury and the IRS are to be commended for providing common-sense rules in many of these areas.

Section 3.01:  Limited Relief from “Downward” Attribution

The Notice provides limited relief from § 318(a)(3) “downward attribution” in one extremely narrow situation involving attribution from a partner (the “tested partner”) to a partnership.  Treasury and the IRS intend to issue regulations providing that if the tested partner owns less than 5% of the interests in the partnership’s profits and capital, stock owned by the tested partner will not be treated as owned by the partnership for purposes of determining whether a foreign corporation is a specified foreign corporation (SFC) under § 965(e)(1)(B).  A slightly modified version of the § 318 attribution rules will apply to determine the interest in the partnership owned by the tested partner.

The Notice makes no reference to the Senate Print or the Conference Report statements that Congress generally did not intend the repeal of § 958(b)(4) to cause a foreign corporation to be treated as a CFC with respect to a U.S. shareholder as a result of downward attribution under § 318(a)(3) from a U.S. person that is unrelated to the U.S. shareholder.  We hope Treasury and the IRS will provide further relief from § 318(a)(3) consistent with Congressional intent.

Section 3.02:  Determination of Cash Measurement Dates Where Specified Foreign Corporation Is Acquired, Disposed of, or Ceases to Exist

The Notice provides rules to clarify a SFC’s cash measurement dates described in
§ 965(c)(3)(A) if the U.S. shareholder does not own the SFC on all of the potentially relevant dates.  Treasury and the IRS intend to issue regulations providing that—

(i)  the “final cash measurement date,” i.e., the close of the SFC’s last taxable year that begins before January 1, 2018, is only taken into account if it is on or after November 2, 2017;

(ii)  the “second cash measurement date,” i.e., the close of the last taxable year that ends before November 2, 2017, is only taken into account if it is after November 1, 2016;

(iii)  the “first cash measurement date,” i.e., the close of the immediately preceding taxable year, is only taken into account if it is after November 1, 2015, and before November 2, 2016; and

(iv)  a U.S. shareholder must take into account is pro rata share of the SFC’s cash position on each measurement date meeting these requirements only if the U.S. shareholder is a U.S. shareholder of the SFC on that date, regardless of whether the U.S. shareholder is a U.S. shareholder of the SFC on any other cash measurement date.

In an example, USP sold CFC2, a calendar year CFC, to an unrelated person on June 30, 2016.  USP takes into account CFC2’s cash position only on CFC2’s first cash measurement date, December 31, 2015.  USP also owned CFC4 until CFC4 dissolved on December 30, 2010.  USP does not take into account CFC4’s cash position on any measurement date.

Section 3.03:  Treatment of Certain Accrued Foreign Income Taxes for Purposes of Determining Post-1986 E&P

The Notice provides some relief from the rule that foreign income taxes accrue only on the last day of the foreign tax year, as stated in Rev. Rul. 61-93, 1961-1 C.B. 390.  Absent this relief, a calendar-year SFC’s E&P measured on November 2, 2017 might include 10 months (and two days) of 2017 earnings but no 2017 foreign income taxes.

Treasury and the IRS intend to issue regulations providing that, for purposes of determining a SFC’s post-1986 E&P as of November 2, 2017, certain foreign income taxes will be allocated between the portions of the SFC’s U.S. tax year that are before and after that date.  To qualify for allocation, the foreign income taxes must meet both of the following requirements:

(i)  the tax must accrue within the SFC’s U.S. tax year that includes November 2, 2017, and

(ii)  the tax must accrue after November 2, 2017, but on or before December 31, 2017.

Thus, foreign income taxes will only be allocated if the SFC has a foreign tax year ending in November or December.

The contemplated regulations will be relevant solely for purposes of determining the SFC’s post-1986 E&P within the meaning of § 965(d)(3).  For example, they will not affect the computation of deemed paid credits under §§ 902 or 960.

Comment:  We commend Treasury and the IRS for this rule. While limited in scope, it allows for a more accurate economic measurement of many CFCs’ E&P as of November 2, 2017.

Section 3.04:  Anti-Avoidance Rules

Section 3.04(a)(i):  Overview of “Principal Purpose” Transactions

The Notice includes broad anti-avoidance rules.  Treasury and the IRS intend to issue regulations under sections 965(c)(3)(F) and 965(o) providing that a transaction will be disregarded for purposes of determining a U.S. shareholder’s § 965 tax liability if the following conditions are satisfied:

(i)  the transaction occurs, in whole or in part, on or after November 2, 2017;

(ii)  the transaction is undertaken with a principal purpose of reducing the U.S. shareholder’s § 965 tax liability; and

(iii)  the transaction would otherwise reduce the shareholder’s § 965 tax liability.

The Notice refers to this three-part test as the “anti-avoidance rule.”

For the purposes of the anti-avoidance rule, a transaction reduces a U.S. shareholder’s § 965 tax liability if it (i) reduces the U.S. shareholder’s § 965(a) inclusion amount, (ii) reduces the U.S. shareholder’s aggregate foreign cash position, or (iii) increases the amount of foreign income taxes the U.S. shareholder is deemed to pay under § 960 as a result of an inclusion under § 965.

The Notice states that certain transactions, as further described below, are presumed to be undertaken with a principal purpose of reducing a U.S. shareholder’s § 965 tax liability.  Any such presumption may be rebutted only if the facts and circumstances clearly establish that the transaction was not undertaken with a principal purpose of reducing a U.S. shareholder’s § 965 tax liability.  The regulations will require that a taxpayer that takes the position that the presumption is rebutted must attach a statement to its income tax return disclosing that it has rebutted the presumption.  In other words, taxpayers are presumed guilty unless they disclose on their tax returns—and can prove—that they are innocent.

Comment:  The requirement that taxpayers must disclose on their tax returns that they have rebutted the presumption is excessive.  To comply, taxpayers would need to review every transaction that group companies have undertaken anywhere in the world, determine whether they are among the many transactions carrying a presumption of bad purpose, and then disclose on the return that the presumption has been rebutted.  This would be a burdensome exercise, and it is difficult to see what the IRS gains from it in terms of sound administration of the tax laws.  If a taxpayer failed to disclose a transaction that reduced § 965 tax liability, would the transaction automatically be treated as having been undertaken with a bad purpose, with no avenue for relief or rebuttal?

In addition, the Notice creates a significant set of transactions that are per se treated as undertaken with a principal purpose of reducing a U.S. shareholder’s § 965 tax liability.  As a result, these per se transactions are automatically disregarded for purposes of determining the relevant U.S. shareholder’s § 965 tax liability, if they would otherwise reduce the liability.

The anti-avoidance rule depends in several cases on whether a person is related to the U.S. shareholder.  For this purpose, a person is treated as related to a U.S. shareholder if the person bears a relationship to the U.S. shareholder described in § 267(b) or 707(b) immediately before or immediately after the transaction.

Section 3.04(a)(ii):  Cash Reduction Transactions

A cash reduction transaction is presumed to be undertaken with a principal purpose of reducing a U.S. shareholder’s § 965 tax liability.  A “cash reduction transaction” is (i) a transfer of cash, accounts receivable, or cash equivalent assets by a SFC to any of its U.S. shareholders or a person related to a U.S. shareholder, or (ii) an assumption by a SFC of an account payable of any of its U.S. shareholders or a person related to a U.S. shareholder, if the transfer or assumption would otherwise reduce the U.S. shareholder’s aggregate foreign cash position.  This presumption does not apply to a cash reduction transaction that occurs in the ordinary course of business.

The presumption will not apply to a cash reduction transaction that is a distribution by a SFC to a U.S. shareholder.  Such a distribution will be treated per se as not being undertaken with a bad purpose, unless the distribution is a specified distribution.  Thus, ordinary cash distributions from a CFC to its U.S. shareholder generally are not subject to the anti-avoidance rule, and thus will be given effect in determining the U.S. shareholder’s § 965 tax liability.

A specified distribution, however, will be treated per se as being undertaken with a bad purpose, and will not be given effect for § 965 purposes if it reduces the U.S. shareholder’s § 965 tax liability.  A “specified distribution” is a cash reduction transaction that is a distribution by a U.S. shareholder’s SFC if (i) at the time of the distribution, there was a plan or intention for the distributee to transfer, directly or indirectly, cash, accounts receivable, or cash equivalent assets to any SFC of the U.S. shareholder, or (ii) the distribution is a non pro rata distribution to a foreign person that is related to the U.S. shareholder.

Comment:  Clause (i) of the “specified distribution” definition is excessively broad.  For example, a cash distribution of $1 billion from CFC1 could be viewed as tainted if, at the time of the distribution, the U.S. shareholder has a separate and unrelated plan to transfer $100 to CFC2 in the ordinary course of business.  The definition ought to be rewritten to provide that a distribution will be a specified distribution only to the extent of the plan to retransfer cash or equivalents to a CFC, and only if the distribution and the retransfer are somehow related.  In the example, none of the $1 billion (or, at most, $100) should be a specified distribution.

Additionally, we understand the “distributee” identified in clause (i) to mean the particular U.S. shareholder receiving the distribution, and not, for example, a member of the shareholder’s consolidated group. It would be helpful if Treasury and the IRS confirmed this point.

Section 3.04(a)(iii):  E&P Reduction Transactions 

An E&P reduction transaction is presumed to be undertaken with a principal purpose of reducing a U.S. shareholder’s § 965 tax liability.  An “E&P reduction transaction” is a transaction between a SFC and any of the following:  (i) any of its U.S. shareholders, (ii) another SFC of any of its U.S. shareholders, or (iii) any person related to any of its U.S. shareholders, if the transaction would otherwise reduce the accumulated post-1986 deferred foreign income or the post-1986 undistributed earnings under § 902(c)(1) (as in effect before its repeal by TCJA) of the SFC or another SFC of any of its U.S. shareholders.  However, this presumption does not apply to an E&P reduction transaction that occurs in the ordinary course of business. 

Notwithstanding the presumption, an E&P reduction transaction that is a specified transaction will be treated per se as being undertaken with a bad purpose.  A “specified transaction” is a transaction that involves (i) a complete liquidation of a SFC to which § 331 applies; (ii) a sale or other disposition of stock by a SFC, or (iii) a distribution by a SFC that reduces its E&P pursuant to § 312(a)(3). 

Comment:  Treasury and the IRS attempted to limit this per se rule, but, as currently drafted, it picks up transactions that have nothing to do with tax avoidance.  For example, a simple § 351 drop‑down of stock would be covered, as would a § 355 distribution.  Suppose the U.S. parent happens to be spinning off a business in 2018.  The spin-off will necessarily involve numerous stock drop-downs and § 355 internal distributions by various CFCs.  These transactions should be excluded from the per se E&P reduction rule if the parent can demonstrate they are unrelated to § 965 planning.

Section 3.04(a)(iv):  Pro Rata Share Transactions

A pro rata share transaction is also presumed to be undertaken with a principal purpose of reducing a U.S. shareholder’s § 965 tax liability.  A “pro rata share transaction” is a transfer of a SFC’s stock to any of its U.S. shareholders or a person related to any of its U.S. shareholders if such transfer would otherwise (i) reduce the U.S. shareholder’s pro rata share of the SFC's § 965(a) earnings amount if it is a deferred foreign income corporation, (DFIC); (ii) increase the U.S. shareholder’s pro rata share of the SFC's specified E&P deficit if it is an E&P deficit foreign corporation; or (iii) reduce the U.S. shareholder’s pro rata share of the SFC's cash position.

Notwithstanding the presumption, an internal group transaction will be treated per se as being undertaken with a bad principal purpose.  An “internal group transaction” is a pro rata share transaction if, immediately before or after the transfer, the transferor and the transferee of the SFC’s stock are members of an affiliated group in which the U.S. shareholder is a member.

For this purpose, the term “affiliated group” has the meaning set forth in § 1504(a), determined without regard to paragraphs (1) through (8) of § 1504(b).  Additionally, for purposes of identifying an affiliated group and the members of the group, (i) each partner in a partnership (as determined without regard to clause (ii) below) is treated as holding its proportionate share of the stock held by the partnership, and (ii) if one or more members of an affiliated group own, in the aggregate, at least 80% of the interests in a partnership’s capital or profits, the partnership will be treated as a corporation that is a member of the affiliated group.

Anti-Avoidance Example

The Notice provides one example of its anti-avoidance rules.  In the example, FP, a foreign corporation, owns 100% of USP, a domestic corporation, which has owned 100% of FS, another foreign corporation, for more than one year.  The taxable year end is December 31 for USP and November 30 for FS. 

On January 2, 2018, USP transfers all of FS’s stock to FP for cash.  On January 3, 3018, FS makes a distribution with respect to its stock to FP.  USP treats the transaction as a taxable sale of FS stock and claims a dividends received deduction under § 245A with respect to the deemed dividend under § 1248(j) as a result of the sale.  FS has post-1986 E&P as of December 31, 2017, and no previously taxed income or effectively connected income for any previous taxable year.

The Notice states that the transfer of FS stock is a pro rata share transaction, because the transfer is to a person related to USP, and the transfer would otherwise reduce USP’s pro rata share of FS’s § 965(a) earnings amount.  The transfer of FS stock is also an internal group transaction, because USP and FP are members of an affiliated group.  Therefore, this transaction is treated per se as being undertaken with a principal purpose of reducing the § 965 tax liability of USP.

Thus, the transfer will be disregarded for purposes of determining USP’s § 965 tax liability with the result that, among other things, USP’s pro rata share of FS’s § 965(a) earnings amount is determined as if USP owned 100% of the stock of FS on the last day of FS’s inclusion year and no other person received a distribution with respect to this stock during that year.

Comment:  Once again, the per se category is overbroad.  Tax avoidance is not always the reason for an intragroup stock transfer.  Simple § 351 drop-downs and § 355 distributions of SFC stock in particular should not automatically be treated as bad purpose transactions if the taxpayer can demonstrate an unrelated purpose.

Section 3.04(b):  Changes in Method of Accounting and Entity Classification Elections

In addition, Treasury and the IRS intend to issue regulations providing that any change in method of accounting made for a taxable year of a SFC that ends in 2017 or 2018 will be disregarded for purposes of determining a U.S. shareholder’s § 965 tax liability if such change would otherwise reduce the liability.  These regulations will not apply to a change in method of accounting for which the original and/or duplicate copy of any Form 3115 requesting the change was filed before November 2, 2017.

The regulations will also provide that any entity classification election under Treas. Reg. § 301.7701-3 filed on or after November 2, 2017, will be disregarded for purposes of determining a U.S. shareholder’s § 965 tax liability if the election would otherwise reduce the liability.  This rule will apply even if the entity classification election was effective before November 2, 2017.

These rules will apply regardless of whether the change in method of accounting or entity classification election is made with a principal purpose of reducing the § 965 tax liability of a U.S. shareholder.

Comment:  The automatic denial of accounting method changes and entity classification elections for 14 months is overbroad, and the “heads I win, tails you lose” approach of only disregarding transactions when they reduce the § 965 tax liability (while giving them full effect when they increase tax liability) is offensive.  Common accounting method changes should be excluded from this broad rule, as should method changes deemed to occur by reason of a change in law (for example, the new tax-book conformity rule under § 451(b)) or a change in GAAP accounting principles​.  Treasury and the IRS have not written anti-avoidance rules “to carry out the provisions of § 965”as § 965(o) mandates; they have turned the statute on its head, making it into one giant anti-avoidance rule.  This cannot be what Congress intended.

Section 3.05:  Elections, Reporting, and Payment

Section 3.05(a):  Documentation of Cash Position

The IRS intends to issue forms, publications, regulations or other guidance that will specify the documentation a U.S. shareholder must maintain and provide to demonstrate that net accounts receivable, actively traded property, and/or short-term obligations may be excluded from the shareholder’s aggregate foreign cash position under § 965(c)(3)(D) because they have been taken into account by the shareholder with respect to another SFC.

Section 3.05(b):  Rules and Elections in the Case of a Domestic Pass‑Through Entity

The Notice provides rules for the application of § 965 to a domestic pass‑through entity and its U.S. owners, including who may make § 965 elections.

Treasury and the IRS have determined that if a domestic pass-through entity is a U.S. shareholder of a DFIC, the § 965(a) inclusion and the § 965(c) deduction should be determined at the level of the domestic pass-through entity.  However, domestic owners of the entity are subject to federal income tax on their shares of the pass-through entity’s inclusion amount.  The § 965(a) inclusion and the § 965(c) deduction must be allocated to the owners of the pass‑through entity in the same proportion.

If a domestic owner of the domestic pass-through entity is a U.S. shareholder with respect to the DFIC and separately owns § 958(a) stock in the DFIC, the regulations will provide that the owner’s § 965(a) inclusion amount and § 965(c) deduction with respect to the separately owned stock will be determined separately from the owner’s share of the § 965(a) amount and § 965(c) deduction of the domestic pass-through entity.

A “pass-through entity” for this purpose means a partnership, an S corporation, or any other person to the extent the person’s income or deductions are included in the income of one or more direct or indirect owners or beneficiaries.  Special rules are provided in the case of tiered pass-through entities.

With respect to the elections under § 965(h), (m), and (n), Treasury and the IRS intend to issue regulations allowing a domestic pass-through owner to make these elections regardless of whether the domestic pass-through owner is a U.S. shareholder of the DFIC.  Any such election will generally apply to all § 965(a) inclusion amounts of the domestic pass-through owner.  A domestic pass-through owner that is an S corporation will be allowed to make an election under § 965(i) to defer tax liability with respect to a DFIC owned by the pass-through entity only if the S corporation is a U.S. shareholder of the DFIC owned by the pass-through entity.

Section 3.05(c):  Net Tax Liability of Domestic Pass-Through Owners for Purposes of Section 965(h)

Treasury and the IRS intend to issue regulations providing that for purposes of determining a domestic pass-through owner’s net tax liability under § 965, the domestic pass-through owner will be treated as a U.S. shareholder.  Thus, the domestic pass-through owner will be able to elect, under § 965(h), to pay the liability in installments.

The regulations will provide that in the case of a taxpayer with one or more elections in place under § 965(i), the taxpayer’s net tax liability under § 965 for purposes of § 965(h) will be reduced by the taxpayer’s net tax liabilities deferred under § 965(i).

Section 3.05(d):  Application of Section 965(n)

Treasury and the IRS intend to issue regulations providing that, if an election is made under § 965(n), then, pursuant to § 965(n)(1)(A), the amount of an NOL for the year will be determined without taking into account as gross income the amount described in § 965(n)(2).  The regulations will also clarify that such an election will be treated as made with respect to both the amount of the NOL for the year and the NOL carryovers and carrybacks to the year.

Section 3.05(e):  Filing and Payment Dates for Certain Individuals

The Notice clarifies that in the case of an individual who, under Treas. Reg. § 1.6081-5(a)(5) or (6), qualifies for an automatic extension of time to the 15th day of the 6th month following the close of the taxable year to file a tax return and pay the resulting tax liability, the installment payments under § 965(h) will also be due by the 15th day of the 6th month following the close of a taxable year.

Section 3.06:  Treatment of Section 965(c) Deduction of Individuals

Treasury and the IRS intend to issue regulations providing that the § 965(c) deduction will not be treated as an itemized deduction, and thus will not be subject to the 2% floor or the AMT.

Comment: This is a helpful clarification. Congress certainly did not intend that individuals be taxed at AMT rates on income inclusions under § 965(a).

Section 4:  Modification of Accounts Receivable and Accounts Payable Definitions in Notice 2018-13

Treasury and the IRS intend to issue regulations modifying the definition of the terms “account receivable” and “account payable” in Section 3.04 of Notice 2018-13.  The regulations will provide that “accounts receivable” and “accounts payable” will only include receivables and payables with an initial term of less than one year.

Section 5:  Elections Under Section 962

Treasury and the IRS intend to issue regulations clarifying that a domestic pass-through owner who is an individual (including, as provided in Treas. Reg. § 1.962-2(a), a trust or estate) and is also a U.S. shareholder with respect to a DFIC may make a § 962 election with respect to the individual’s share of the § 965(a) inclusion amount of a domestic pass-through entity with respect to the DFIC.  However, an individual who is not a U.S. shareholder of the DFIC will not be permitted to make the election.  The regulations will also clarify that the same principles apply to Subpart F inclusions other than by reason of § 965.

Treasury and the IRS also intend to modify Treas. Reg. § 1.962-1(b)(1)(i) to provide that, in computing the amount of tax due as a result of a § 962 election, the § 965(c) deduction may be taken into account.  Specifically, the regulations will provide that “taxable income” as used in § 11 will be reduced by the § 965(c) deduction (but not by any other deductions).  Additionally, any § 965(c) deduction allowed in determining “taxable income” as used in § 11 as a result of a § 962 election will not also be allowed for purposes of determining an individual’s actual taxable income.

Section 6:  Penalty Waiver

The IRS will waive estimated tax penalties under §§ 6654 and 6655 with respect to a taxpayer’s net tax liability under § 965, whether or not the taxpayer elects under § 965(h) to pay the liability in installments.  Other penalties may apply, however, if a taxpayer fails to pay the net tax liability under § 965 when due.

In addition, to the extent the TCJA amendment to § 965 or repeal of § 958(b)(4) causes an underpayment of estimated tax due on or before January 15, 2018, the estimated tax penalties under §§ 6654 and 6655 will not apply to that underpayment.​​​​​​​​​​​​​​​​

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.