TREASURY AND IRS ISSUE FINAL RULES RELATING TO REPATRIATION OF IP
Blog Post — Tax Blog
— By
Devon Bodoh,
Greg Featherman and
Grant Solomon
— October 10, 2024
On October 9, 2024, the Treasury Department (“Treasury”) and the Internal Revenue Service (“IRS”) issued final regulations (the “Final Regulations”), which, in certain cases, terminate the continued application of Section 367(d) of the Internal Revenue Code (the “Code”) from a previous transfer of intangible property to a foreign corporation when the intangible property is repatriated to certain U.S. persons.Background.Section 367(d) of the Code provides rules for outbound transfers of intangible property (e.g., intellectual property) by a U.S. person (a “U.S. transferor”) to a foreign corporation. Under these rules, when a U.S. transferor transfers intangible property to a foreign corporation in an otherwise tax-free exchange under Sections[1] 351 or 361, the U.S. transferor is treated as having sold the intangible property in exchange for annual royalty payments (an “annual inclusion”) over the useful life of the intangible property (or a lump sum payment in the case of a disposition of the intangible property following the initial outbound transfer). The U.S. transferor treats the annual inclusion and lump sum as ordinary income and royalties for purposes of determining source and the foreign tax credit limitation category.On May 3, 2023, Treasury and the IRS published a notice of proposed rulemaking under Section 367 (the “Proposed Regulations”). The Proposed Regulations were intended to address simple, common fact patterns involving repatriations of intangible property by terminating the continued application of Section 367(d) when a transferee foreign corporation repatriates intangible property subject to Section 367(d) to a qualified domestic person when certain reporting requirements are satisfied. The Proposed Regulations also included a rule coordinating the application of Section 367(d) and the provisions in Treasury Regulations Section 1.904-4(f)(2)(vi)(D) that apply the principles of Section 367(d) to determine the appropriate amount of gross income attributable to a foreign branch.The Final Regulations adopt, without significant modification, the Proposed Regulations. For a further discussion of the proposed regulations, see “IP Phone Home – IRS Issues New Proposed Rules on the Repatriation of Intangible Property” posted on the Weil Tax Blog on May 4, 2023.Final Regulations.As indicated above, the Final Regulations adopted the Proposed Regulations with only minor changes. In addition to a clarification to one example, the Proposed Regulations clarify one aspect of the reporting rules. As a condition for terminating the application of Section 367(d) with respect to repatriated intangible property, the Proposed Regulations would have required a U.S. transferor to provide the information described in Proposed Treasury Regulations Section 1.6038B-1(d)(2)(iv). If a U.S. transferor failed to provide that information, the requirement to take an annual inclusion into account over the useful life of the intangible property, continued to apply. However, a U.S. transferor was eligible for relief under the Proposed Regulations if the Proposed Regulations would have applied to the subsequent transfer of intangible property but for the fact that the required information was not provided and the U.S. transferor, upon becoming aware of the failure, promptly provided the required information, explained its failure to comply, and met certain other requirements (if applicable).One comment to the Proposed Regulations requested that the Final Regulations clarify whether relief for a failure to comply is, in relevant part, also conditioned on the U.S. transferor timely filing one or more amended returns for the taxable year in which the subsequent transfer occurred and succeeding years, and, if the U.S. transferor is under examination when an amended return is filed, providing a copy of the amended return(s) to the IRS personnel conducting the examination. Treasury and the IRS adopted that comment in the Final Regulations to clarify that the relief for a failure to comply is conditioned upon the requirements listed in the previous sentence (if applicable).Applicability Date.Consistent with the applicability date in the Proposed Regulations, the Final Regulations apply only to repatriations of intangible property occurring on or after the date the final regulations are published in the Federal Register, which is scheduled to be October 10, 2024.
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New IRS Proposed Regulations Address Dual Consolidated Loss Rules
Blog Post — Tax Blog
— By
Devon Bodoh,
Greg Featherman,
Madeline Joerg and
Sydnei Jones
— August 09, 2024
On August 6, 2024, the Treasury Department (“Treasury”) issued Proposed Regulations (REG- 102144-04) (the “Proposed Regulations”) regarding section 1503(d) of the Internal Revenue Code. Specifically, the Proposed Regulations clarify the application of the existing dual consolidated loss (“DCL”) rules by providing guidance regarding: (i) the interplay of the DCL rules with the intercompany transaction regulations under section 1502, (ii) the computation of income or DCLs, (iii) the application of certain anti-avoidance rules, (iv) the interplay of the DCL rules with the GLoBE Model rules, and (v) the treatment of disregarded payment losses. Background – Overview of the DCL Rules. The DCL rules generally function by restricting “double deduction” outcomes, i.e., when a dual resident corporation (“DRC”) uses the same economic loss to offset income subject both to U.S. tax and taxation in a foreign jurisdiction. The double deduction issue commonly arises with respect to losses of an entity that is a flow-through owned by a domestic corporation for U.S. federal income tax (“USFIT”) purposes that is subject to income tax in a foreign jurisdiction (such entities generally referred to as “hybrid entities”). In the absence of the DCL regime, the hybrid nature of these entities would allow for the losses of such entities to be taken into account for both foreign and USFIT purposes. More specifically, section 1503(d)(2)(A) defines DCLs as “any net operating loss of a domestic corporation which is subject to an income tax of a foreign country on its income without regard to whether such income is from sources in or outside of such foreign country or is subject to such a tax on a residence basis.” Generally, the ability of a U.S. corporation to deduct DCLs are limited although statutory exceptions to the DCL rules allow for the domestic use of losses under special circumstances. These circumstances include situations in which a corporation certifies and demonstrates that it has not previously applied, and in the future will not apply, the losses to income generated in a foreign country (the “Foreign Use Exception”). The exceptions to the DCL rules apply so long as a triggering event does not occur. Clarifications to Current Regulations to Address Uncertainty. The following summarizes certain clarifications to the current DCL regulations that were included in the Proposed Regulations that were intended to address uncertainty as to the application of those regulations. Interaction with the Matching Rules. The existing DCL rules provide that, with respect to an affiliated DRC or an affiliated domestic owner acting through a separate unit (a “Section 1503(d) Member”), the computation of income or DCL takes into consideration the rules under section 1502 regarding the computation of consolidated taxable income. See Treasury Regulations sections 1.1503(d)-5(b)(1) and (c)(1). The Proposed Regulations generally address certain hybrid arrangements and the interaction of the matching rules under Treasury Regulations section 1.1502-13(c) with the computation of income or dual consolidation loss. In particular, the Proposed Regulations clarify that if a Section 1503(d) Member’s intercompany loss would otherwise be taken into account in the current tax year, and if the DCL rules apply to limit the use of such loss (such that the loss is not currently deductible), then the intercompany transaction regulations would not re-determine that loss as not being subject to limitations under section 1503(d). As a result, a Section 1503(d) Member’s intercompany loss may be limited under the DCL rules despite this outcome being inconsistent with single entity treatment under the consolidated return rules. The Proposed Regulations also generally provide guidance as to the treatment of a Section 1503(d) Member’s counterparty in an intercompany transaction. The Proposed Regulations apply matching rules, or principles of matching rules, to the counterparty as if such Section 1503(d) Member were not subject to the DCL rules. With respect to the order of operations between Treasury Regulations section 1.1502-13 and the DCL rules, the Proposed Regulations attempt to clarify that (i) the intercompany transaction regulations apply first to determine when an intercompany (or corresponding) item is taken into account, and (ii) such item is then included in the DCL computations. Weil Tax Observation: This is another example of the IRS and Treasury using a single entity approach to affiliated corporations and treating entities as separate. Eliminations of the Favorable Inclusion of Stock Rule. Many foreign jurisdictions do not tax capital gain or dividends under a “participation exemption” regime. Further, Subpart F or global intangible low-taxed income (“GILTI”) inclusions with respect to CFC stock is not a taxable event outside the U.S. To avoid taxpayers affirmatively structuring to prevent the application of the DCL rules (which may otherwise be possible as a result of the difference in tax law between the U.S. and other jurisdictions), the Proposed Regulations intend to provide that items generally arising from the ownership of stock are not taken into account for purposes of calculating DCLs. More specifically, Proposed Treasury Regulations section 1.1503(d)-5(c)(4)(iv) states that such exclusions, for the purposes of computing the income or the DCLs of any separate unit, include subpart F inclusions, GILTI inclusions, and most dividends. Note that the Proposed Regulations do not apply with respect to a dividend or other inclusion arising from a separate unit or from a DRC’s ownership of portfolio stock of a corporation. Weil Tax Observation: It is unclear why the IRS and Treasury felt the need to address these specific types of transactions with a per-se rule when it also granted itself broad authority under an anti-avoidance rule (described in more detail below). Adjustments to Conform to U.S. Tax Principles. With respect to items of a domestic owner that are attributed to a hybrid entity separate unit, taxpayers historically may have taken the position that such items, which are not reflected on the books and records of hybrid entity, may be attributable to the hybrid entity separate unit (i.e., the adjustments to the books and records necessary to conform to U.S. tax principles can include an item that has not been reflected on the books and records of the hybrid entity). To address this, the Proposed Regulations generally provide that the adjustments necessary to conform to U.S. tax principles do not permit the attribution to a hybrid entity separate unit (or an interest in a transparent entity) of any item that has not been, and will not be, reflected on the books and records of such hybrid entity (or transparent entity).Anti-avoidance Rules. The Proposed Regulations note that the IRS and Treasury continue to learn and are aware of certain transactions or structures that attempt to obtain a double-deduction outcome while avoiding the DCL rules. Therefore, the IRS and Treasury included in the Proposed Regulations an anti-avoidance rule that generally is expected to address additional transactions, or interpretations, that may attempt to avoid the purposes of DCL rules. Weil Tax Observation: The new anti-avoidance rule is very broad and should be approached with care. The rule authorizes “appropriate adjustments” where a transaction, series of transactions, or plan or arrangement is intended to avoid the purposes of the DCL rules. This is a continuation of broad anti-avoidance rules being inserted into IRS guidance. The Interplay of the DCL and GLoBE Model Rules Published in 2021, the OECD/G20 provided rules to assist in the reformation of international taxation, specifically aimed at global anti-base erosion (“GLoBE”). Generally, the rules prescribe a system in which Multinational Enterprise Groups (“MNE Groups”) are required to pay a 15% global minimum tax. MNE Groups must determine whether their effective tax rate (“ETR”) in each jurisdiction in which it operates is 15% by taking the sum of all the taxes paid by the MNE Group in a specific jurisdiction, covered taxes, and dividing it by the total amount of income derived from that specific jurisdiction, otherwise referred to as, Net GLoBE income. The Net GLoBE income of a specific jurisdiction is determined by aggregating the income and loss of all constituent entities of the MNE Group located in that jurisdiction. If the ETR of the MNE in a specific jurisdiction falls below the 15% threshold a qualified domestic minimum top-up tax (“QDMTT”), an income inclusion rule (“IIR”) or a undertaxed profits rule (“UTPR”) would be applied to ensure that the MNE Group meets the threshold in each specific jurisdiction. To ease the burden of compliance, the OECD implemented the Transitional CbCR Safe Harbor (“Safe Harbor”). Applicable to financial years beginning after December 30, 2023 and ending by June 30, 2028, the Safe Harbor provides that if certain test or requirements related to the ETR or financials of the entity based in a specific jurisdiction are met, the top-up tax will not apply. The QDMTT or IIR may be considered an Income Tax for DCL Purposes. The interplay of the DCL and the GLoBE Model rules hinges on determining what is considered an “income tax,” as described in the DCL rules. The Proposed Regulations clarify that under certain circumstances the QDMTT or IIR may qualify as an income tax under the DCL rules because the calculation of ETR can result in the double deduction of losses based on dual residence, the exact situation that the DCL rules were enacted to prevent. The Proposed Regulations assert that taxes collected to ensure the collection of a minimum tax or that use financial accounting to determine net income or loss may be an income tax as described in the DCL rules. It is important to note, the Proposed Regulations declined to provide specific guidance regarding the issues related to the UTPR. Weil Tax Observation: Over 135 jurisdictions agreed to enact legislation to prevent base erosion and profits shifting (BEPS). This foreshadows the administrative and compliance burden that taxpayers will face navigating international tax law in the coming future as it relates to the DCL rules. Particularly, tracking which top-up tax regimes are valid/applicable and varying implementation/application dates. Taxpayers are also left in anticipation regarding the views of the IRS and Treasury on the treatment of UTPRs. Demystifying Tax Residence. The Proposed Regulations state that if an entity that is not taxed as a domestic association for USFIT purposes is subject to the IIR in another jurisdiction, then the interest of such entity held by a domestic entity is considered a hybrid entity separate unit or an entity treated as separate from the domestic unit for USFIT purposes. Consequently, the income and losses of such entity would be calculated separately from the other entities in the group. The Proposed Regulations also clarify that if a MNE has a place of business outside the United States that is considered a permanent establishment with respect to a QDMTT or IIR, then the Proposed Regulations, subject to some exceptions, generally classify the foreign permanent establishment as separate from the domestic entity for USFIT purposes. Transitional Safe Harbor and the Foreign Use Exception. The Proposed Regulations clarify that the utilization of a loss to qualify for one of the test or requirements under the Safe Harbor is not appropriate where a DCL situation would have occurred in the absence of the Safe Harbor. Legacy DCLs and Notice 2023-80. Subject to the anti-abuse rule, the Proposed Regulations extend the relief provided by Notice 2023-80 by generally allowing the inapplicability of the DCL rules with respect to the GLoBE Model rules for DCLs incurred in taxable years that have already begun. Anti-Hybrid Rules. Treasury notes that they are still studying the interaction of the dual consolidated loss rules and the GloBE Model rules, particularly as it relates to the anti-hybrid rules under sections 245A(e) and 267A.Treatment of Disregarded Payment Losses The preamble to the 2018 proposed regulations (REG-104352-18) discussed certain structures involving payments from foreign disregarded entities to their domestic corporate owners that are regarded for foreign tax purposes but disregarded for USFIT purposes. Such structures may result in a deduction/no-inclusion outcome (“D/NI outcome”) (i.e., for foreign tax purposes, payments that give rise to a deduction that can be surrendered to offset dual inclusion income). However the preamble to the 2018 proposed regulations noted that such structures were not addressed in the section 1503(d) Treasury Regulations. Due to complexity, the Proposed Regulations address these structures through entity classification and DCL rules (the disregarded payment loss (“DPL”) rules) that are consistent with the “domestic consenting corporation” approach under Treasury Regulations sections 301.7701-3(c)(3) and 1.1503(d)-1(c) (addressing domestic reverse hybrid entities). As a result of these DPL rules, domestic corporations agree to monitor a net loss of the entity under a foreign law that is composed of certain payments that are disregarded for USFIT and, if a D/NI outcome occurs as to the loss, then such domestic corporation will include in gross income the amount equal to the loss. By including this amount in the domestic corporation’s gross income, it generally minimizes the D/NI outcome and places parties in generally the same position they would have been in had the specified eligible entities not been classified as a disregarded entity for USFIT purposes.Consent and DPL Rules. Additionally, with respect to DPL rules, the Proposed Regulations include a deemed consent rule. This rule, which applies 12 months after the date the DPL rules are applicable, provides that a domestic corporation, which directly or indirectly owns interests in a specified eligible entity, is deemed to consent to the applicability of the DPL rules to the extent such corporation has not otherwise consented. For purposes of the Proposed Regulations, a specified eligible entity is an entity that, when classified as a disregarded entity, is able to pay or receive amounts that may give rise to a D/NI outcome by reason of being disregarded for USFIT purposes but deductible for foreign tax purposes. By consenting, the domestic corporation agrees that if the specified eligible entity incurs a DPL during a certification period and a triggering event also occurs with respect to such loss, then such domestic corporation will include in gross income the DPL inclusion amount (the “DPL Inclusion Amount”). Items taken into account for purposes of calculating a DPL include any item that (i) is currently deductible under relevant foreign tax law, (ii) is disregarded for USFIT purposes and, (iii) if regarded for USFIT purposes, would be interest, a structured payment, or a royalty. Only items that are generated or incurred during a period in which an interest in the disregarded payment entity (“DPE”) is a separate unit are taken into account. By defining DPL amounts in this manner, the IRS and Treasury appear to be of the view that the application of this rule is generally intended to apply to arrangements that are likely structured to produce a D/NI outcome. Triggering Events. The Proposed Regulations provide triggering events that, if applicable, require the specified domestic owner to generally include in gross income the DPL Inclusion Amount. The first triggering event occurs when there is foreign use of the DPL. In determining if such foreign use occurs, only persons that are related to the specified domestic owner are taken into account. The IRS and Treasury intended to minimize the occurrence of a triggering event that results from non-tax motivated transactions. The second triggering event occurs as a result of a failure by the specified domestic owner to comply with certification requirements (generally, a specified domestic owner must file a statement providing information about the DPL of such entity and certifying that a foreign use of the DPL has not occurred). DPL Inclusion Amount. The Proposed Regulations define the DPL Inclusion Amount as, with respect to a DPL as to which a triggering event has occurred during the DPL certification period, the amount of the DPL. DPE Combination Rule. The Proposed Regulations also include a rule in which DPEs, which for relevant foreign tax purposes are the same, are generally combined and treated as a single DPE for purposes of the DPL rules. Application to DRCs. The Proposed Regulations provide certain special rules where the DPL rules also apply to DRCs, and where a DRC either directly or indirectly owns interests in an eligible entity treated as a disregarded entity, such DRC agrees to be treated as a DPE and as a specified owner of such DPE.Interaction with DCL Rules. Although the DPL rules address similar concerns, and rely on certain aspects of, DCL rules, according to the Proposed Regulations, the IRS and Treasury have not integrated these two regimes given the administrative complexity. The DPL rules operate independently of the DCL rules.
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