Doing Business in the U.S. ─ U.S. Federal Taxation

Doing Business in the U.S. ─ U.S. Federal Taxation

Devon BodohPrincipal

Washington National Tax

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Notice

ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY KPMG TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials.

The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser.


Agenda

Basic U.S. Federal Tax Concepts

Taxation of Brazilian Companies Investing in the U.S.

Acquisition Considerations

Basic U.S. Federal Tax Concepts


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Basic U.S. Federal Tax ConceptsEntity Classification

What is a corporation?− Generally, a business entity organized under U.S. (federal or state) law, if

referred to as “incorporated” or as a “corporation”− Certain foreign entities that are “per se” corporations

What is a partnership?

− Generally not a U.S. federal income tax paying entity– income, gain, deduction and loss flow through to the partners

What is a disregarded entity?

− Assets, liabilities and activities of a disregarded entity are treated as the assets, liabilities and activities of the disregarded entity’s owner

What is the “Check the Box” regime?

− Certain eligible entities (limited liability companies, for example) may elect their entity classification for U.S. federal tax purposes

− If no election is made:

• If a single-owner, the default classification is as a disregarded entity

• If multiple-owners, the default classification is as a partnership


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Corporations pay U.S. federal income tax at a 35% rate− Currently, the same rate applies to ordinary income and

capital gains

− Corporations are also subject to “alternative minimum tax”

− Corporations are required to pay quarterly estimated taxes

− Corporations are subject to state, local and foreign taxes, based on the location of its assets and activities; rates vary by jurisdiction

• Generally entitled to deduct state and local income taxes

• Generally entitled to a tax credit for foreign income taxes

• Aggregate effective federal, state and local income tax rate for corporations is typically between 38% and 40%

Basic U.S. Federal Tax ConceptsTax Rates


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Ownership DRD

less than 20 percent 70 percent

20 percent or morebut less than 80 percent

80 percent

80 percent or more 100 percent

Basic U.S. Federal Tax ConceptsTax Rates (Cont’d)

A corporation and its shareholders are generally treated as separate taxpayers, resulting in double taxation of corporate income− Shareholders generally have two sources of income, gain or loss:

• Distributions from the corporation (e.g., dividends)• Dispositions of stock (e.g., capital gain or loss)

Corporate shareholders are generally entitled to a dividends-received deduction (“DRD”) with respect to dividends received from a U.S. corporation− The amount of DRD depends on the level of ownership:

In general, corporate shareholders prefer dividend income (due to DRD) and individual shareholders prefer long term capital gains (due to lower rate (historically) and basis recovery)


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What is an affiliated group?

One or more chains of includible corporations connected through stock ownership with a common parent corporation (i.e., 80% of the total voting power and value)

− Non-U.S. corporations are not includible corporations An affiliated group may elect to file a consolidated tax return

− The taxable income of all members of an affiliated group is determined on an aggregate basis (i.e., deductions of one member may offset income of another member)

P

S1 S2

Basic U.S. Federal Tax ConceptsConsolidated Groups


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Whether an investment is classified as debt or equity for tax purposes is based on the weighing of a number of factors including− Debt-to-equity ratio of the borrower and− Borrower’s ability to repay the debt based on

projected earnings Consequences of classification as debt or equity:

− Interest payments are generally deductible but dividends are not

− Withholding taxes may differ

Basic U.S. Federal Tax ConceptsDebt v. Equity

Taxation of Brazilian Companies Investing in the U.S.

© 2013 KPMG LLP, a Delaware limited liability partnership and the U.S. member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. KPMG and the KPMG logo are registered trademarks of KPMG International Cooperative (“KPMG International”), a Swiss entity. 11

U.S. Corporations

− Taxable in U.S. on worldwide income

− Generally, considered to be a resident in place where created or organized (place of incorporation)

− Possibility of “dual residence” status exists

• This might occur, for example, if another country determines residence on a different basis (management and control test)

• Raises problem of dual consolidated losses

Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ U.S. Corporations


Non-U.S. residents include business entities organized under laws of foreign country

Gross basis withholding tax (generally 30% rate) on U.S.-source investment income

Net basis tax at graduated rates on income effectively connected with conduct of a U.S. trade or business

− A filing with the U.S. taxing authority (a Form 1120-F) is generally required in this circumstance.

Foreign corporations also subject to 30% branch profits tax on remittances from U.S. branch to foreign home office

Special rules for sales of U.S. real property interests (USRPI)

− Buyers may be required to withhold 10% of the sales proceeds

General rules subject to treaty modification; however, there is no income tax treaty between the U.S. and Brazil

Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ Non-U.S. Residents


Interest – Residence of payor

Dividends – Payor’s place of incorporation

Income from services – Location where services performed

Rent and royalties – Location or place of use of property

Sale of Real Property – Location of property

Sale of Personal Property – Generally, the location of the seller

Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ Income Sourcing Rules


Gross Basis Withholding Tax on U.S. Source Investment Income

− Generally applies to fixed, determinable, annual or periodical (FDAP) income

• Includes interest, dividends, rents, and royalties

− Gross basis withholding does not apply to FDAP income to the extent it is effectively connected with a U.S. trade or business (USTB)

Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ Withholding


Net Basis Taxation of Income Effectively Connected to a U.S. Trade or Business

− Effectively connected income (ECI)

• Generally, U.S. source income of a foreign person engaged in a USTB (other than FDAP income or gain or loss from the sale or exchange of a capital asset)

• U.S. source FDAP income may be ECI if (1) the income is derived from an asset used in a U.S. trade or business, or (2) the activities of a U.S. trade or business are a “material factor” in generating the income

• In certain limited circumstances, foreign source income may be ECI

U.S. Trade or Business

− Generally “facts and circumstances” test

• Whether active profit-oriented activities of a foreign person in the United States are “considerable, continuous and regular”

Generally, a low threshold

• Activities of agents may be considered

Examples:

− Performance of personal services in U.S. is a U.S. trade or business

− Trading in stock/securities for taxpayer’s own account is not a U.S. trade or business

Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ Effectively Connected Income

Acquisition Considerations ─ Acquisition Through a U.S. Acquirer


Deductibility of Interest Payments

Withholding Tax Considerations

Distributions

Consolidated Group Considerations

Acquisition Considerations ─ Acquisition Through U.S. AcquirerSelected Issues


Background: A Brazilian company (“Brazilian Parent”) would like to acquire all of the stock of a publicly traded U.S. corporation (“U.S. Target”)

Step 1: Brazilian Parent forms a new U.S. corporation (“U.S. Acquirer”)

Step 2: U.S. Acquirer borrows the purchase price, US$100, form the U.S. branch of an unrelated Brazilian Bank (the “Loan”)

Step 3: U.S. Acquirer purchases the stock of U.S. Target for US$100

Acquisition Considerations ─ Acquisition Through U.S. Acquirer Sample Transaction

Brazilian Parent

U.S. TargetU.S. Acquirer

Brazilian Bank

U.S. Branch

Public

U.S. Target

1

2

3


General Debt v. Equity Considerations

− To deduct interest on the Loan, it must be debt for U.S. tax purposes

− Facts and circumstances

• Is the borrower thinly capitalized? In the U.S., a debt-to-equity ratio in excess of 3:1 is evidence

of debt Brazil thin capitalization rules – no greater than 2:1 debt-to-

equity ratio

• Legal priority of payment Lender’s right to payment on liquidation Bifurcating the debt into a junior and senior tranche may

minimize the likelihood that all of the interest deductions are denied under debt/equity principles

Acquisition Considerations ─ Acquisition Through U.S. AcquirerDeductibility of Interest ─ Debt v. Equity


Debt Guarantee Considerations

− If U.S. Acquirer is a newly formed entity or otherwise undercapitalized, Brazilian Parent may be required to guarantee its obligations under the Loan

− This guarantee raises the issue of whether the guarantor is the borrower

• Look at debt-to-equity factors (e.g., would borrower be expected to repay the debt without the guarantee?)

− A guarantee by Brazilian Parent also possibly implicates the earnings stripping rules:

• applies to interest paid to foreign related party where 30% gross basis withholding is not applicable

• also applies to interest paid to unrelated party (e.g. US lending bank) where there is a foreign related party “guarantee”

• application results in disallowance of interest deduction but only if (1) the corporation’s debt-to-equity ratio (as of the end of the taxable year) exceeds 1.5:1, and (2) the corporation’s total interest deduction (including interest due to unrelated persons) exceeds 50% of the corporation's “adjusted taxable income” (roughly speaking, its cash flow before deducting interest)

Acquisition Considerations ─ Acquisition Through U.S. AcquirerDeductibility of Interest ─ Debt Guarantees


Withholding tax on interest payments made by U.S. Acquirer to a Brazilian bank

− U.S. source FDAP income

− Since there is no treaty between the U.S. and Brazil, the interest payments would be subject to a 30% withholding tax on the gross amount of the interest payment

− However, U.S. Acquirer may be able to avoid withholding tax if the payment is made to a U.S. branch of a Brazilian bank

What if guarantor (i.e., Brazilian Parent) is treated as the borrower?

− No withholding tax on interest payments to either a Brazilian bank or a U.S. branch

Conduit Financing Rules - intermediate entities in a financing arrangement may be disregarded if their participation reduces U.S. withholding tax

− Conduit financing rules do not apply if financing

• Is not pursuant to a tax avoidance plan or

• Does not result in lower taxes (as compared to the absence of such entity)

Acquisition Considerations ─ Acquisition Through U.S. AcquirerWithholding Tax Considerations


Acquisition Considerations ─ Acquisition Through U.S. AcquirerWithholding Tax Considerations (Cont’d)

• Assume Brazilian Parent establishes a financing entity (“FinCo”) in a country with a low withholding tax rate on interest payments with both the U.S. and Brazil

• If FinCo borrowed money from the Brazilian Bank (Step 1), and then on-lent the funds to U.S. Acquirer (Step 2), the combined withholding tax rate on the back-to-back loans may be less than if U.S. Acquirer had borrowed the money directly from the Brazilian banks

• However, conduit financing rules under the U.S. tax laws may prevent such a beneficial result

Brazilian Parent

U.S. TargetU.S. Acquirer

Brazilian Bank Public

U.S. Target

1

2

3

FinCo


Under U.S. tax laws, distributions by a corporation to its shareholder are taxable as a dividend to the extent the distributing corporation has earnings and profits (“E&P”)

If the amount of the distribution exceeds the amount of earnings and profits, the distribution is treated, first, as a return of basis and, second, to the extent it exceeds basis, capital gain

Example:

− Assume U.S. Target has $50 of E&P, and Brazilian Parent has a US$100 tax basis in its U.S. Target stock

− If U.S. Target makes a $200 distribution to Brazilian Parent, US$50 of the distribution will be dividend income to Brazilian Parent

• This US$50 dividend will be subject to a 30% withholding tax since there is no treaty between the US and Brazil

− Of the remaining US$150 of the distribution, US$100 will reduce Brazilian Parent’s tax basis in the U.S. Target stock to US$0, and US$50 will be treated as capital gain

Acquisition Considerations ─ Acquisition Through U.S. AcquirerDistributions


Acquisition Considerations ─ Acquisition Through U.S. AcquirerConsolidated Group Considerations

-

+US$ 100

If Brazilian Parent makes the acquisition through U.S. Acquirer, U.S. Acquirer and U.S. Target may be eligible to form a consolidated group

Since the taxable income of a consolidated group is determined on an aggregate basis U.S. Acquirer’s interest deductions may offset U.S. Target’s taxable income

Distributions from U.S. Target to U.S. Acquirer are not taxable if they belong to the same consolidated group

Brazilian Parent

U.S. Acquirer

Brazilian Bank

U.S. Target

U.S. Branch


If U.S. Target and U.S. Acquirer belong to the same consolidated group, U.S. Acquirer’s E&P will include U.S. Target’s E&P

However, U.S. Acquirer’s E&P will only include U.S. Target’s E&P from the date after the acquisition

Example:

− Assume Brazilian Parent acquired U.S. Target through U.S. Acquirer. Assume also that U.S. Target has US$50 of E&P that accrued prior to the acquisition, and Brazilian Parent has a US$100 tax basis in its U.S. Acquirer stock

− If U.S. Acquirer makes a US$100 distribution to Brazilian Parent, none of the distribution will be treated as a dividend since U.S. Acquirer will not be treated as having any E&P

− The US$100 will reduce Brazilian Parent’s tax basis in U.S. Acquirer stock to US$0 but Brazilian Parent will recognize no gain

− This result will occur even if the distribution is funded by a dividend from U.S. Target to U.S. Acquirer (which is tax free under the consolidated return rules)

Acquisition Considerations ─ Acquisition Through U.S. AcquirerConsolidated Group Considerations ─ Distributions

Acquisition Considerations ─ Direct Acquisition by Brazilian Parent


Background: Brazilian Parent would like to acquire all of the stock of U.S. Target

Step 1: Brazilian Parent borrows the purchase price, US$100, from an unrelated Brazilian

Step 3: Brazilian Parent purchases the stock of U.S. Target for US$100

Acquisition Considerations ─ Direct Acquisition by Brazilian Parent Sample Transaction

Brazilian Parent

U.S. TargetU.S. Target

Brazilian Bank Public1 2


No consolidated group with a foreign parent

− Brazilian Parent would therefore only be able to use an available interest deduction to offset its own taxable income (and not the taxable income of U.S. Target)

− The historic E&P of U.S. Target is taken into account in determining whether distributions are dividends

Dividend distributions generally subject to 30% withholding tax

No withholding tax on interest payments to either a Brazilian bank or a U.S. branch of a Brazilian Bank

Acquisition Considerations ─ Direct Acquisition by Brazilian Parent Other Considerations

Acquisition Considerations ─ Other Considerations


Net Operating Losses (NOLs)

− May be carried back two years and carried forward 20 years

− Limitations on NOL usage

• If an ownership change occurs, a corporation’s ability to use its pre-change NOLs and built-in losses to offset post-change taxable income may be limited

Ownership Change: more than 50% change in ownership over a three-year testing period

• The ability of a consolidated group to use a member’s NOLs from a pre-consolidated group period of that member to offset income may be limited

Acquisition ConsiderationsNet Operating Losses


When stock is acquired, the tax basis of the company’s assets do not change

In certain circumstances, a taxpayer can elect to treat a stock acquisition as an asset acquisition, in which case tax basis of the assets change to fair market value

Two types of elections

− Section 338(g): Common where seller is non-U.S. taxpayer but otherwise uncommon

− Section 338(h)(10): Available in limited circumstances. More common where seller is U.S. taxpayer

Acquisition Considerations Section 338 Elections


Devon M. BodohPrincipal

Professional and Industry Experience

Devon M. Bodoh is the Principal in Charge for Latin American Markets. Within that role, Mr. Bodoh leads the firm’s US-Brazil High Growth Market Practice and leads the Inbound Tax Team for Brazil. In addition, Mr. Bodoh is the co-leader of KPMG’s Washington National Tax International M&A Initiative and a principal in Washington National Tax.

Mr. Bodoh advises clients on cross border mergers, acquisitions, spin-offs, other divisive strategies, restructurings, bankruptcy and non-bankruptcy workouts, the use of net operating losses, foreign tax credits, deficits and other tax attributes, and consolidated return matters.

Prior to joining KPMG, Mr. Bodoh was a partner in the international law firm of Dewey & LeBoeuf LLP.

Publications and Speaking EngagementsMr. Bodoh is a frequent speaker on subjects in his practice area for various groups, including the Tax Executives Institute, the American Bar Association, the American Law Institute/American Bar Association, the American Institute of Certified Public Accountants, BNA/Center for International Tax Education and the Law Education Institute.

Mr. Bodoh is a former chairperson and vice-chairperson of the American Bar Association's Committee on Affiliated and Related Corporations and is an officer of the American Bar Association's Corporate Tax Committee.

Mr. Bodoh is an adjunct professor at George Mason University School of Law. In addition, Mr. Bodoh is a member of the Dean's Advisory Board for the University of Detroit School of Law.

DEVON M. BODOHPrincipal Washington National TaxKPMG LLP

Washington DC Office1801 K Street, NWWashington, DC 20006

Miami Office200 South Biscayne BlvdMiami, FL 33131

Tel +1 202-533-5681Fax +1 202-609-8969Cell +1 [email protected]

Function and SpecializationCross border mergers, acquisitions, spin-offs, divestitures, liquidating and nonliquidating corporate distributions, corporate reorganization, and consolidated returns

Education, Licenses & Certifications• LLM, Taxation, New York University of Law• JD, University of Detroit Mercy School of

Law School• BBA, University of Michigan Stephen M.

Ross School of Business

Doing Business in the U.S. ─ U.S. Federal Taxation

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