Strategizing International Tax Best Practices – by Keith Brockman

Posts tagged ‘QBAI’

New US Reg’s: GILTI, 245A,et al.

IRS and Treasury released, on June 14th, a set of proposed and final Regulations on GILT, in addition to Temporary and Proposed Regulations on Section 245A that relate, partly, to GILTI.  A copy of the proposals are provided for reference, with some highlights to date:

  • REG 106282-18 is a Notice of proposed rule making with temporary regulations that limit the dividends received deduction available for certain dividends received from current or former controlled foreign corporations (CFCs).  Per the Notice, “only small U.S. taxpayers with fiscal year CFCs that transfer assets in related party transactions during the gap period, or U.S. taxpayers that transfer more than 10 percent of their stock of a CFC in a taxable year or U.S. taxpayers that reduce their ownership of stock of a CFC by more than 10 percent, have the potential to be affected by these regulations.”
  • REG 101828-19, Notice of proposed rule making re: domestic partnership treatment ( adopting an aggregate approach), and proposed GILTI regulations for gross income subject to a high rate of foreign tax.  Note the GILTI final regulations adopt the GILTI high tax exclusions of the original proposed regulations without change, however the proposed regulations would allow an expanded election whereby the high-tax determination is made at the QBU level.  An election made with respect to a CFC applies with respect to each high-taxed QBU of the CFC, and a U.S. shareholder must make the same election with respect to each of its CFCs.  This high-tax change would apply to taxable years of foreign corporations beginning on or after the date that final regulations are published in the Federal Register.
  • TD9865, Final temporary regulations under Section 245A
  • TD9866, Final and temporary regulations re: GILTI guidance, pro-rata shares of Subpart F income and certain foreign tax credit provisions.  Note that future guidance is reserved re: allocation and apportionment of expenses for the foreign tax credit limitation under Section 904.  
    • Future guidance is expected to clarify that Sec. 250 does not apply to CFCs as an allocable deduction
    • Final regulations retain the current GILTI high tax exclusion, noting that the rules prescribed by a separate notice of proposed rule making for an expanded exclusion cannot be used until the relevant regulations are effective.
    • De minimis and full inclusion rules are clarified
    • The effect of a qualified deficit or a chain deficit in determining gross tested income is disregarded, and the final regulations are revised accordingly
    • Final regulations retain the tested loss QBAI exclusion, although there is a reduction to tested interest expense of a CFC for a “tested loss QBAI amount”
    • Final regulations retain the netting approach for determining specified interest expense, with certain modifications
    • Final regulations define “interest expense” and “interest income” by reference to Section 163(j) 
    • Rules for basis adjustment of tested loss CFCs will be a separate project

The regulations/notice of proposed rule making are extensive, complex and represent over 500 pages of guidance, although certain provisions and clarifications represent favorable rules based on comments received.

The rules clarify current law, comments received and explanations why they were, or were not, considered.  Thus, a detailed review refreshes such insights into the long history of the international tax provisions.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-12436.pdf

https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-12442.pdf

https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-12437.pdf

https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-12441.pdf

GILTI Reg’s: TEI’s response

The Tax Executives Institute (TEI) provided insgihtful comments to the recently issued GILTI Proposed Regulations, addressing the following main points:

  • Proposed regulation section 1.951A-3(h)(1) (the “temporarily held property rule”) provides that temporarily held property acquired with “a principal purpose” of reducing a U.S. shareholder’s GILTI inclusion will be disregarded
  • Basis adjustment rule for tested losses
  • Only used tested losses should increase Subpart F E&P
  • Basis reductions should only apply to actual transfers of stock
  • Deemed Sec. 367(d) expense should reduce tested income
  • Prop. Reg. § 1.951A-2(c)(5) anti-abuse rule (and authority to issue such rule)

TEI’s comments are well reasoned and should be reviewed to further understand the complexities, and need for added clarification going forward.

 

https://www.tei.org/sites/default/files/advocacy_pdfs/TEI%20Comments%20-%20Proposed%20GILTI%20Regulations%20Section%20951A%20-%20FINAL%2026%20November%202018.pdf

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