The Service Grants Relief to US Shareholders of “Foreign-Controlled” CFCs

Kramer Levin Naftalis & Frankel LLP

Kramer Levin Naftalis & Frankel LLP


On Oct. 1, the Internal Revenue Service (the Service) issued Revenue Procedure 2019-40 (the Revenue Procedure), which offers guidance relating to ownership by certain U.S. persons of stock in “controlled foreign corporations” (CFCs) and “specified foreign corporations” (SFCs) necessitated by the 2017 Tax Cuts and Jobs Act (TCJA).[1] The Revenue Procedure affords to U.S. taxpayers who have made, or are considering making, investments in certain foreign corporations — or in certain funds or other vehicles that invest in such corporations — a welcome, albeit limited, measure of relief from the potentially harsh and unintended consequences of the repeal by the TCJA of a rule that had proscribed “downward” constructive attribution of foreign stock ownership to U.S. persons. Such repeal has had the effect of significantly increasing the likelihood a foreign corporation will be considered a CFC or an SFC, or that a taxpayer will be considered a “U.S. shareholder” thereof, in many cases without the knowledge of the taxpayer. Relief under the Revenue Procedure comes in the form of the creation of several safe harbors, penalty protection and the relaxation of certain filing requirements, as described below.    

In general, Section 958 provides rules for determining direct, indirect and constructive stock ownership for purposes of Subpart F of the Code (relating to CFCs). Under Section 958(a), stock is considered owned by a person if it is owned directly by such person or indirectly through certain foreign entities. Section 958(b) provides that the constructive stock ownership rules of Section 318 apply (with certain modifications) to the extent that such rules would, among other things, (i) treat a U.S. person as a U.S. shareholder, (ii) treat a person as a “related” person within the meaning of Section 954(d)(3)[2] or (iii) treat a foreign corporation as a CFC.

Under Section 318, stock owned by an entity can be proportionately attributed to its equity owners (“upward” attribution) and stock owned by an entity’s owners can be attributed to the entity (downward attribution). Prior to its repeal by the TCJA, Section 958(b)(4) provided that the downward attribution rules of Section 318 were not applicable for purposes of Section 958 so as to deem a U.S. person to own stock owned by a foreign person. Following repeal,[3] stock of a foreign corporation owned by a foreign person can be attributed to a U.S. person as a consequence of being owned by the foreign person for purposes of determining whether such U.S. person (or another U.S. person) is a U.S. shareholder of the foreign corporation, which may lead to such foreign corporation being treated as a CFC. For an example, see here. If a foreign corporation is so treated, its U.S. shareholders must in certain circumstances include in their gross income amounts under sections 951 and 951A — relating to Subpart F inclusions and global intangible low-taxed income (GILTI) inclusions, respectively — attributable to, and report amounts with respect to, such CFC. A U.S. shareholder of a foreign corporation that is a CFC solely due to the repeal of Section 958(b)(4) may not be capable of determining whether a foreign corporation is a CFC or obtaining information necessary to calculate the amounts of any requisite Subpart F and/or GILTI inclusions. The Revenue Procedure addresses such concerns.

CFC Status Safe Harbor                

Following repeal of Section 958(b)(4), certain U.S. shareholders with respect to a foreign corporation may be unable to determine such corporation’s CFC status absent knowledge regarding the stock ownership of such corporation by unrelated persons. The Revenue Procedure provides that the Service will accept a U.S. person’s determination that a foreign corporation is not a CFC with respect to such person if certain conditions are satisfied (the CFC Status Safe Harbor).[4] One such condition is that such U.S. person lacks actual knowledge that the CFC ownership requirements under Section 957 are met (through statements received by such person or otherwise) and there is no reliable publicly available information sufficient for such U.S. person to make a determination as to whether the CFC ownership requirements are satisfied.[5] The second condition is that if the U.S. person directly owns stock of or an interest in a foreign entity, the U.S. person must inquire of such foreign entity (i) whether such foreign entity is a CFC; (ii) whether, how and to what extent such foreign entity directly or indirectly owns stock of one or more foreign corporations; and (iii) whether, how and to what extent such foreign entity directly or indirectly owns stock of or an interest in one or more domestic entities. 

In keeping with the Revenue Procedure’s focus on mitigating certain consequences of the repeal of Section 958(b)(4), the CFC Status Safe Harbor applies only with respect to a foreign-controlled CFC.[6]

Alternative Information Safe Harbor      

 In order for a U.S. shareholder properly to determine its Subpart F or GILTI inclusion amounts with respect to a CFC, such U.S. shareholder must ascertain the CFC’s gross and taxable income, qualified business asset investment, and earnings and profits, among other items. Certain U.S. shareholders may be unable to obtain the requisite information to calculate Subpart F or GILTI inclusion amounts with respect to foreign-controlled CFCs or properly report amounts on IRS Form 5471, Information Return of U.S. Persons With Respect to Certain Foreign Corporations.[7] 

Treasury and the Service believe that it is reasonable for taxpayers to use “alternative information” (described below) in order to determine Subpart F and GILTI inclusion amounts or satisfy record-keeping or Form 5471 reporting requirements with respect to a foreign-controlled CFC in certain circumstances. Thus, the Revenue Procedure provides that in the case of a foreign-controlled CFC with respect to which no related U.S. shareholder — with relatedness determined under principles similar to Section 954(d)(3) — owns, directly or indirectly, stock of such CFC, the Service will accept the use of alternative information by a direct or indirect U.S. shareholder that is not so related if (i) information otherwise satisfying statutory and regulatory requirements is not “readily available” with respect to the foreign-controlled CFC[8] and (ii) Subpart F or GILTI inclusion amounts or amounts under Section 964 and regulations thereunder may be determined on the basis of alternative information (the Alternative Information Safe Harbor). Instructions for Form 5471 will be revised accordingly.

The Revenue Procedure defines alternative information with respect to a foreign corporation to include a number of items, set forth in a list organized in hierarchical fashion. An item of information qualifies as alternative information only if the information preceding it on the list is not readily available. Such list includes the following items (in descending order of acceptability):

  • Audited separate-entity financial statements of the foreign corporation prepared
    • in accordance with U.S. generally accepted accounting practices (GAAP);
    • on the basis of international financial reporting standards (IFRS); or
    • on the basis of local-country GAAP for the jurisdiction in which the foreign corporation is organized.
  • Unaudited separate-entity financial statements of the foreign corporation prepared
    • in accordance with U.S. GAAP;
    • on the basis of IFRS; or
    • on the basis of local-country GAAP.
  • Separate-entity records used by the foreign corporation
    • for tax reporting or
    • for internal management controls or regulatory or other similar purposes.[9]

Section 965 Safe Harbor

Certain U.S. shareholders may have been unable to obtain information necessary to calculate amounts required to be included under Section 951 by reason of Section 965 (relating to mandatory repatriation under the TCJA) or the related deduction under Section 965(c) in the case of certain SFCs. To address this, the Revenue Procedure established the Section 965 Safe Harbor. If information satisfying statutory and regulatory requirements is not readily available to a direct or indirect U.S. shareholder unrelated under principles similar to those set forth in Section 954(d)(3) to an SFC (other than a CFC that is not a foreign-controlled CFC or with respect to which there is a related direct or indirect U.S. shareholder) to enable calculation of a Section 965 amount, such amount may be determined by such shareholder on the basis of alternative information (as described above). Instructions for Form 5471 will be revised accordingly.

Penalty Protection

The Service will not impose penalties on taxpayers under sections 6038 (relating to Form 5471 reporting) and 6662 (relating to underpayments of tax) to the extent such penalties would be attributable to a U.S. person’s determining (i) that a foreign corporation is not a CFC in accordance with the CFC Safe Harbor, (ii) a Subpart F or GILTI inclusion amount or other amounts in records required to be maintained under Section 964 or accompanying regulations or amounts reported on Form 5471 in accordance with the Alternative Information Safe Harbor, or (iii) a Section 965 amount in accordance with the Section 965 Safe Harbor.

Relaxation of Form 5471 Filing Requirements

Notwithstanding recent modifications to Form 5471 filing requirements following enactment of the TCJA, such requirements may still impose significant burdens on certain U.S. shareholders with limited access to information in respect of foreign-controlled CFCs. As a result, the Revenue Procedure indicates that the Service will revise instructions for Form 5471 further relaxing and in some cases eliminating filing requirements for (i) unrelated direct or indirect U.S. shareholders, (ii) related constructive U.S. shareholders,[10] and (iii) unrelated constructive U.S. shareholders, in each case with respect to foreign-controlled CFCs.

Applicability Dates

Unless otherwise provided in subsequent guidance, taxpayers may apply the CFC Status Safe Harbor, the Alternative Information Safe Harbor, the Section 965 Safe Harbor, the penalty protection provisions and the modifications to Form 5471 filing requirements set forth in the Revenue Procedure with respect to the last taxable year of a foreign corporation beginning before Jan. 1, 2018, and each subsequent taxable year of such foreign corporation and with respect to the taxable years of U.S. shareholders in which or with which such taxable years of such foreign corporation end.



[1] All section references are to sections of the Internal Revenue Code of 1986, as amended (the Code), unless otherwise indicated. In general, a CFC is a foreign corporation of which more than 50% of the total vote or value of the stock is owned by one or more U.S. shareholders on any day during the taxable year of such corporation. Sec. 957(a). A U.S. shareholder means a U.S. person owning, directly or indirectly, 10% or more of the vote or value of the stock of the foreign corporation. Sec. 951(b). Section 965(e) generally defines an SFC as (i) any CFC and (ii) any foreign corporation with respect to which one or more domestic corporations is a U.S. shareholder.

[2] Section 954(d)(3) provides in general that a person is a related person with respect to a CFC if such person controls, or is controlled by, the CFC or such person is controlled by the same person or persons who control the CFC, with control effectively defined as more than 50% of the vote or value of stock or other interest, depending on the circumstance.   

[3] Repeal of Section 958(b)(4) was effective beginning with the last taxable year of foreign corporations beginning before Jan. 1, 2018, and for the taxable years of U.S. shareholders in which or with which such taxable years of such corporations end. Proposed regulations addressing collateral consequences of the repeal of Section 958(b)(4) that are generally intended to ensure the operation of certain rules remains consistent with their application prior to such repeal were released on the same date as the Revenue Procedure. The proposed regulations include changes relating to deductions for certain payments to foreign related persons under Section 267, the liquidation of certain domestic holding companies into CFCs under Section 332, exceptions to gain recognition agreement triggering events under Section 367(a), the passive foreign investment company asset test under Section 1297, the CFC look-through rules and active rents and royalties exception to passive income, and modifications to regulations under sections 672, 706, 863 and 6049.     

[4] A U.S. shareholder’s failure to ask a foreign shareholder whether the latter owns stock of or an interest in a domestic entity (to which the foreign shareholder’s foreign corporation stock ownership could be attributed) will not preclude the U.S. person’s reliance on the CFC Status Safe Harbor. 

[5] For purposes of this condition, actual knowledge, statements received and/or reliable publicly available information as of a particular date are treated as true for all subsequent dates unless later information rebuts the original information. What constitutes “actual knowledge” or “reliable publicly available information” would appear rife with uncertainty. 

[6] A foreign-controlled CFC is a foreign corporation that would not be a CFC if the downward attribution rules of Section 318(a)(3) did not apply.

[7] In general, the Service may require any U.S. shareholder of a CFC to file Form 5471 with respect to such shareholder’s ownership in such CFC.

[8] Information with respect to a foreign corporation is considered readily available for a particular person if, as of the due date of the person’s return (taking into account extensions or any additional time that would have been granted if the person had made an extension request), (i) such information is publicly available; (ii) in the case of direct or indirect investments in foreign corporations completed on or before (or subject to a binding contract as of) Oct. 1, 2019, or an acquisition of foreign corporation stock from a shareholder who is not a related person with respect to the foreign corporation, the person has the legal or contractual right to obtain such information and is able to obtain such information using reasonable efforts; or (iii) in the case of a direct or indirect investment in or acquisition of stock of a foreign corporation not described in clause (ii), the foreign corporation is not prohibited by law from providing such information to such person and the person is able to obtain such information using reasonable efforts, including a good-faith attempt to obtain the right to receive relevant information as part of the acquisition or investment agreement(s). The Revenue Procedure cautions that Treasury and the Service may update the Alternative Information Safe Harbor or the definition of readily available in future guidance on a prospective basis as necessary to ensure tax compliance.       

[9] If an amount is determined by a U.S. shareholder on the basis of an item of information described in this list with respect to a taxable year of a foreign corporation, and another amount is subsequently determined by the U.S. shareholder with respect to a different taxable year of such corporation utilizing a different item on the list or otherwise, the U.S. shareholder must use reasonable efforts to make any adjustments necessary in the subsequent taxable year to ensure that the change does not cause duplication or omission of material items in any taxable year of the foreign corporation.   

[10] A constructive U.S. shareholder means, with respect to a foreign corporation, a U.S. shareholder who is not a direct or indirect U.S. shareholder with respect to such corporation. 

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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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