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New GILTI High Tax-Exclusion Final Regulations: Tested

Units, Controlled CFC Groups, and Retroactive Application

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November 19, 2020

New GILTI High Tax-Exclusion Final Regulations

Alison N. Dougherty, J.D., LL.M., CPA

Director, Tax Services

Aronson

[email protected]

Pamela A. Fuller, JD, LLM

Senior International Tax Counsel

Zahn Law Group

[email protected]



Notice

ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY

THE SPEAKERS’ FIRMS TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY

OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT

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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.

AGENDAI. Overview, Historical Background and Tax Policies underlying --

A. The longstanding Subpart F High-Tax Exception of IRC § 954(b)(4)

B. The GILTI High-Foreign Tax Exclusion (Final Regs issued July 2020).

C. The 2020 Proposed Regulations that would provide a “Unitary” High-Tax Exclusion, on an annual elective basis, and conform the Subpart F High-Tax Exception to the less flexible 2020 Final GILTI High-Tax Exclusion.

II. Comparing the historical Subpart F High-Tax Exception to the GILTI High-Tax Exclusion

A. The 2019 Proposed Regulations (which the Final 2020 GILTI Regs follow in part).

B. Why U.S. Treasury sees the need for a Unitary Election? (Simplification? But also to preclude uneconomic toggling and tax incentivized behaviors.)

III. Final July 2020 Regulations

A. Modifications of the 2019 proposed regulations

B. Calculations and examples

C. Retroactive elections

IV. July 2020 Proposed Regulations: What those rules would provide if finalized

V. Planning Opportunities

VI. Avoiding Pitfalls

VII. Key Take-Aways

Final GILTI High Tax-Exclusion

Regulations Pamela A. Fuller, Esq. -

Zahn Law; Tully Rinckey

I. Overview• There are present three different regulatory regimes that provide an explicit

high-foreign-tax exception to the income of a CFC. Two of them are currently effective, and the third is only in proposed regulation form, although it appears likely to be adopted in some final form.

1. The historic Subpart F High Foreign Tax Exception of IRC § 954(b)(4);

2. The GILTI High-Tax Exclusion (Final Regulations released July 2020, T.D. 9902); and

3. The Newly Proposed High-Tax Regulations (Reg. 127732-19, July 2020), that would, if finalized, conform the Subpart F High-Tax Exception to the GILTI High-Tax Exclusion (as modified in the proposals) and provide for a Unitary High-Tax Exclusion (that would apply to both high-taxed Subpart F Income and GILTI) on an annual elective basis.

▪ Note: The 2019 Proposed GILTI High-Tax Exclusion Regulations, would have the availability of the GILTI High Tax Exclusion dependent upon --piggy-back on--the Subpart F High-Foreign Tax Exception. But the U.S. Treasury Dept. decided that the rules applicable to the GILTI High Tax Exclusion were more appropriate, and better reflect the changes made by the 2017 Tax Cuts & Jobs Act, and thus decided that the Subpart F High-Tax Exception rules and mechanics (the metrics for measuring high-tax income, the CFC grouping & consistency rules, etc.) should be like those in the Final GILTI High Tax Exception Regulations, issued last July 2020. Those rules are much less flexible from a taxpayer standpoint. Final GILTI High Tax-Exclusion



6

I.A.- C.

Background and Policies of

the High Foreign Tax “Kick-Out” Exception

to Subpart F Income

IRC § 954(d)(4) (Really an exception to one category of Subpart F Income)

Underlying Tax Policy• To understand the changes made the Final and Proposed High-Tax Exception Regs, it is helpful to

remember the history and intended policy of the historic Subpart F High-Tax Exception, and why it has been in the Code since 1962 .

• When § 954(b)(4) was enacted, the legislative history clearly shows that Congress’ main goal for enacting the entire Subpart F regime, was to fix the “abusive tax haven” problem—i.e., to deny U.S. taxpayers the tax deferral privilege (then normally accorded to income earned by incorporated off-shore subsidiary of a U.S. person), if it appeared that the main reason the taxpayer formed the foreign subsidiary was to avoid U.S. income tax—

– either by warehousing passive income in a low-taxed jurisdiction (a “tax haven”), or

– to use related foreign subsidiaries as conduits to route operating income into a foreign Tax Haven.

• When the policy of “capital import neutrality” (i.e., competitive neutrality) is no longer being served, then the deferral privilege should end. See Senate Report, No 87-1991, at 79 (1962).

• But if a U.S. shareholder is earning an item of income through a CFC and is otherwise paying tax on that income item in the foreign jurisdiction at a rate comparable to the U.S. corporate tax rate, then the U.S. shareholder has not obtained a tax advantage by investing in the CFC—and therefore it does not look like the taxpayer was choosing to invest abroad primarily for tax-savings purposes—but rather bona fide business & commercial purposes (which is thought be economists to cause capital to be allocated more efficiently).

• Thus, Congress concluded that if the foreign tax rate is close enough to the U.S. corporate tax rate, then the reasons for ending the tax deferral privilege don’t exist...and tax deferral for that “high-taxed” item can continue (for so long as the Subpart F tax deferral rules allowed).

– This was the thinking before enactment of the GILTI regime in the 2017 TCJA, which essentially ended the tax deferral privilege for all CFCs, by imposing a minimum residual tax.




8

The Historical (and still currently available)

Subpart F High Tax Exception of § 954(b)(4)

• IRC § 954(b)(4): has long provided an exception to both Foreign Base Company Income (§

954) and Insurance Income (§ 953).

• § 954(b)(4) provides that FBC income shall not include “any “item of income” of a CFC that

the taxpayer establishes has been subject to an effective rate of income tax of at least 90% of

the maximum U.S. corporate rate specified in IRC Section 11 (which means, for years after

2017, a foreign rate exceeding 18.9%--i.e., 90% X 21% rate = 18.9%).

– Foreign Base Company Income (FBC Income ) includes:

• FBC SALES income ( § 954(d)),

• FBC SERVICES Income (of § 954(e)), and

• “Foreign Personal Holding Company Income” (§ 954(c)).

– Although Code refers to “any item of income,” the current Subpart F “High Tax Kick-

Out” (HTKO) test is actually applied to an aggregate of certain items of income,

• as determined at the CFC level;

• without distinguishing among divisions, branches, or other units of a CFC.

• This allows for a degree of “blending” of tax rates and items, and a level of “optionality” (like

an ala carte menu), that is not available under either the Final GILTI High-Tax Regulations

(2020) OR the accompanying 2020 Proposed High-Tax Unitary Exception Regulations.

9




Subpart F High Tax Exception: Mechanics of IRC

§ 954(b)(4) and Reg. §1.954-1. • Features of the Subpart F High Tax Exception make it more flexible and generally

more taxpayer favorable that the recently finalized GILTI High Tax Exclusion.

• The determination of whether the Subpart F income item is “high taxed” is:

▪ Made separately for the relevant categories of subpart F income delineated in Reg.

§ 1.954-1, but is largely made item-by-item (or by income type, allowing for a

significant degree of rate blending;

▪ FBC SALES and SERVICES income can often be aggregated for this purpose (even

if earned through separate QBUs, but subject to new regulations under § 960,

which replace the repealed E&P “pooling” rules of § 902);

▪ Passive income is generally tested on a QBU-by-QBU basis (which is more flexible

than the “tested unit” of the 2020 Final GILTI High Tax Regs);

▪ As a result, a U.S. Shareholder, if within the Subpart F regime, has historically

been able to make the High-Tax election for one type of Subpart F income and not

for another, and for once CFC, but not for others.

▪ No “All for One, and One for All” Rule: A U.S. shareholder has historically

been able to elect the Subpart F High-Tax Exception on an CFC-by-CFC basis.

There is currently no “consistency requirement” that either ALL CFCs in a control

group must elect the exception, or else none of them can.

10




§ 954(b)(4): Subpart F High Tax Exception Mechanics

(Continued)

• One key to applying 954(b)(4) is Identifying Income that is “High Taxed”: The §954 regulations

originally looked to § 902 (now repealed), which used an E&P “pooling” convention to associate foreign

taxes with the income inclusion. This allowed low-taxed income items and higher-taxed income items to

be averaged or blended, resulting in more income qualifying for the HTKO Exception.

• Post TCJA: with § 902 repealed, and § 960 amended, the pooling convention has been replaced with an

annualized tracing convention, which requires that the foreign income taxes be “attributable to” the

item of income. See § 960(a).

• Recently Finalized Regulations under IRC § 960 adopt an annualized tax approach that groups Subpart F

income according to each of the categories in Reg. §1.954-1(c)(1)(iii); the taxes associated with items of

income in the current year are then taken into account as an indirect credit.

• The Proposed FTC Regulations (now FINAL) require each type of FBC income , including sub-categories

of § 954(c) FPHCI to be treated as its own group for purposes of the indirect credit under § 960.

• This greater degree of tracing required under § 960 and its Regulations is likely to prevent some

taxpayers from fully utilizing the Subpart F High Tax Exception of § 954(b)(4).

11




“Tax rate blending” potential of Subpart F High-Tax Exception

impacted by recent amendments to the § 960 Regulations)

Assume: CFC owns two Foreign Disregarded Entities (FDEs), each of which

generates $100X of FBC income. FDE-A is taxed by Country A at 25% . FDE-

”B” is taxed by Country B at 15%. Assume the CFC as a whole has a combined

$160 of net foreign base company income in the general FTC basket and pays $40 of

foreign tax.

Note: The Subpart F High Tax Exception does not require that CFCs in the same

country be aggregated as a single “tested unit” (like in the GILTI High-Tax Rules).

Before the 2017 repeal of § 902: the two FDEs’ income would be averaged for

purposes of the high-taxed exception under the § 902 E&P “pooling” convention,

and the test would be applied based on the general basket at their blended or

averaged tax rate, which would be 20%. (Thus, both would qualify for the

954(b)(4) HTKO exception, assuming the threshold were > 18.9%.)

Recent § 960 Regs, which are incorporated by reference in Reg. 1.954-1 for

purposes of the Subpart F High-Tax Exception: the treatment depends on

whether the FDEs earned the same type of Subpart F income; if both FDEs earned

FBC sales income under § 954(d), averaging would be permitted. But if one earned

FBC Sales income, and the other FBC Services income under 954(e), or FPHCI

income under 954(c), only the higher 25% rate item would be eligible to be

excluded under § 954(b)(4). (No more blending of this type!)

In Sum: After the 2017 TCJA, a lower US corporate tax rate lowered the

definitional threshold down to > 18.9% with respect to income that is regarded as

“high taxed” (reduced from 31.5%) . This change makes the Subpart F High-Tax

Exception more available. BUT rules against blending (both in the Final 906

Regulations limit this Exception’s utility now. Moreover, if the recently issued 2020

Proposed High Tax Unitary Exception Regs are finalized, the Subpart F High Tax

Exception will change completely.

Note: FINAL Regs, published July 23, 2020, set forth rigid and specific rules to

qualify for a GILTI High Tax Exception, using a “tested unit” metric.

• .

Final GILTI High Tax-Exclusion Regulations

Pamela A. Fuller, Esq. - Zahn Law; Tully

Rinckey

12

CFC

FDE

“A”

FDE

“B”

Country A:

25% tax rate

Country B:

15% tax rate

CFC has:

$160x net FBC

income

(“general) FTC

basket

Using the Current E&P Limitation of § 953(c)(1) to

qualify for the Subpart F High-Tax Exception

• Current ordering rule of Reg. § 1.954-1(d)(4)(ii) – Apply the Current E&P Limit FIRST: This rule coordinates the Subpart F High-Tax Exception of § 954(b)(4) with the “Current E&P Limitation” of 9534(c)(1), and can expand the availability of the High Tax Exception. The rule provides that the E&P limitation is applied BEFORE the HTKO Exception.

– EXAMPLE: Assume a CFC earns $100 of FBC income, and pays $15 of related taxes, and has a loss of ($50) in the non-subpart F category. Under current Reg. § 1.954-1(d)(4)(ii), the Current E&P limit is applied first, resulting in net $50 of FBC income and $15 of related taxes. Result: Subpart F income cannot exceed current-year E&P. Assume Subpart F income is thus lowered to $50. Because $15 of tax on $50 of Subpart F income is a rate of 50%, and exceeds 18.9%, the net subpart F income item (after application of the E&P limit) is high-taxed income, and thus eligible for exclusion from Subpart F. See Ex. in former Temp. Reg. §1.954- 1T(d)(4)(ii), TD 8618 (Sept. 6, 1995).

• Thus, the Current E&P limit, when it applies, appears to augment the foreign tax rate on a CFC’s Subpart F income for purposes identifying income that is subject to a sufficiently high rate of foreign tax so a to qualify for the High-Tax Exception of § 954(b)(4).

– A “recapture account” is created equal to the Subpart F income that was limited, and non-Subpart F income will be recaptured in the next year that Current E&P exceeds Subpart F income.

• The 2020 Proposed Regulations, published July 23, 2020, would eliminate this ordering rule (and thus the benefits of this tax strategy). The High-Tax Exception would be applied BEFORE the Current-Year E&P Limitation.




13

Interaction of the High Tax Exception with

Full Inclusion Rule of § 954(b)(3)

• The Subpart F High-Tax Exception is currently applied after the full inclusion rule. A coordination rule ensures that if a significant amount (90%) of the CFC’s gross income that caused the full inclusion rule to apply in the first instance is excluded from subpart F income under the Subpart F High-Tax Exception, the Full Inclusion rule is turned off, lending a degree of circularity to the computation.

• However, under the 20200 Proposed Regs, because the High-Tax Exception would apply in determining gross FBCI, while the Full Inclusion Rule would apply in determining adjusted gross FBCI, the Proposed High-Tax Exception would apply before the determination of full inclusion FBCI.

• As a result, there is no need to reassess income initially determined to be full inclusion FBCI after the high-tax exception is applied, eliminating the need for the existing coordination rule and the complexities that it can create.

• The 2020 Proposed Regulations would also modify the coordination rules in the Final GILTI Regulations accordingly and delete the example illustrating them.




14

II. Current Tax Planning Opportunities

(that may soon end)

• Following the 2017, TCJA, the Subpart F High-Tax Exception is one path to true territoriality for certain categories of income because if the exception’s prerequisites are satisfied, and the income is also not includible as GILTI, it may still be eligible for the § 245A DRD.

• Section § 951A(c)(2)(A)(i)(III) of the GILTI provision expressly provides that high taxed income meeting the threshold in § 954(b)(4) is excluded from “tested income” for GILTI purposes.

▪ Although the 2019 Proposed Regs promised a “piggy-back” approach, under current law, the Subpart F High Tax Exception and the GILTI High-Tax Exclusion are DE-COUPLED.

▪ But, if the 2020 Proposed “Unitary Exception” Regulations are finalized, the two different exceptions will no longer be available. (Rather, the current flexibility of the Subpart F High-Tax Exception will largely disappear. Treasury has promised to re-write Reg. § 1.954-1, revoking the longstanding examples, and amending and conforming the rules in that particular, longstanding regulation to the Final GILTI High-Tax Exception Regulations.

▪ So, until that happens, keep an eye out for instances and opportunities in which the Subpart F High Tax Exception would provide more blending opportunities than the recently finalized GILTI High Tax Exception rules.

▪ Consider affirmatively planning into Subpart F—deliberately qualifying certain income items as “Subpart F” income, so as to take advantage of this flexibility.

▪ Tax advisors may also want to plan into Subpart F in order to maximize the foreign tax credits in the General Basket, if CFC is expecting to earn general basket income in future years. (GILTI foreign tax credits cannot be carried over, and are limited to 80 percent.)




15

II.A. The 2019 PROPOSED GILTI High-Tax Regulations

would have “Piggy-Backed” on to § 954(b)(4)

• The 2019 GILTI High-Tax Exclusion, as originally proposed in June 2019 (Reg. 101828-19), would have had the GILTI High-Tax

Exclusion be contingent on application of the Subpart F High Tax Exception of 954(b)(4). (A “piggy-back” approach not adopted in

the FINAL GILTI High-Tax Regulations. Rather, the Final Regs make the GILTI High-Tax Exclusion independent of § 954(b)(4).

• Preamble to the 2019 Proposed Regs: “[t]he legislative history evidences an intent to exclude high-taxed income from gross

tested income. See Senate Explanation at 371 (“The Committee believes that certain items of income earned by CFCs should be

excluded from the GILTI, either because * * * they are generally not the type of income that is the source of base erosion

concerns—or are already taxed currently by the United States….” The proposed regulations, which permit taxpayers to

electively exclude a CFC’s high-taxed income from gross tested income, are consistent, therefore, with this legislative history....[and

also] thus eliminates an incentive for taxpayers to restructure their CFC operations in order to convert gross tested income

into FBCI for the sole purpose of availing themselves of section 954(b)(4) and, thus, the GILTI high tax exclusion.”

• The 2019 Proposed Regs cleared up a debate as to whether the High Tax GILTI Exclusion would be available if the High Tax

Subpart F Income was also available for an exclusion under another exception (such as § 954(c)(2)(A) active royalty income

exception). .

– the Preamble to the 2018 GILTI Regs indicated that the § 954(b)(4) exception from GILTI only applies to income that is

excluded from Subpart F income “solely” by reason of the high-taxed exception.

– Thus, high-taxed income that was eligible for another exception to FBC income, such a the active financing exception or the

look-thru rule of § 954(c)(6), would not qualify for the piggy-back GILTI High Tax Exclusion, and would still have been

GILTI “tested income.” Also, income that was high-taxed but that did not fall within the general definition of “Foreign Base

Company Income” would not have been eligible for the Exclusion (according to the 2018 Proposed Regs).

• However, both the 2019 Proposed GILTI High-Tax Exception Regs and the Final 2020 Regs removed this apparent requirement.

The Final GILTI High-Tax Exclusion Regs provide a separate High Tax GILTI Exclusion, that is (for time being) completely

independent from the longstanding Subpart F High Foreign Tax Exception under §954(b)(4), which remains currently available for

certain items of Subpart F income.

• Effective Date: These 2019 Proposed Regulations were not made effective until finalized. A taxpayer could not rely on them until

issued in final form.

16




Final GILTI High Tax Exclusion Regulations (7/2020):

Brief Background• .

• IRC § 951A requires a US shareholder2 of a CFC to include annually in gross income the US shareholder's

GILTI for the year.

• A US shareholder's GILTI inclusion is an aggregate amount derived from its pro rata shares of certain CFC-

level items, including tested income and tested losses.

– In the Code, gross “tested income” is a CFC's gross income determined without regard to:

a. US-source income effectively connected with a US trade or business;

b. income taken into account in determining the CFC's subpart F income;

c. dividends received from related persons;

d. foreign oil and gas extraction income (as defined in IRC Section 907(c)(1)); and

e. income excluded from subpart F income by reason of the subpart F income high-tax exception.

• Although IRC § 951A does not expressly exclude other high-tax items (i.e., high-taxed income that would

not be subpart F income) from gross tested income for GILTI purposes, Treasury issued proposed

regulations in 2019 extending the statutory high-tax exclusion in 951A (and the principles of § 954(b)(4)) to

other high-taxed gross tested income items in determining the GILTI inclusion.

• The 2019 Proposed GILTI High-Tax Exclusion Regulations were adopted as final, with some major

modifications.

• One big change is that the concept of “qualified business unit” was abandoned (after

practitioners/commenters claimed it was too complex). Instead, the Final Regs employ the concept called

“tested unit” (as defined in the Regs).

17




Final GILTI High-Tax Exclusion Regulations:

--- At a Glance ---• .

The final GILTI high-tax exclusion Regulations were issued in June 2020. (T.D. 9902, 7/2020)

• The GILTI High-Tax Exclusion is elected on an ANNUAL Basis.

• When elected by the taxpayer, it operates to exclude from a CFC's gross tested income under IRC §951A

income items subject to an effective foreign tax rate that is greater than 90% of the highest corporate rate in

effect (i.e., presently that is a rate > 18.95 based on the current 21% corporate tax rate)

• Appears to apply regardless of whether the CFC has “tested income” or a “tested loss.” (Thus, a tested loss

could be reduced.)

• “Tested Unit” is the key measurement guide: Applies at the level of each "tested unit" of a CFC,

substantially eliminating blending of income subject to different rates of foreign tax. Final Regs abandoned

the proposed use of “qualified business units” to determine how tax rates should be measured in relation to

income.

• Applies to every CFC in which a taxpayer holds, or is treated as holding, a majority equity interest (a CFC

group). These rules adopt a § 1504 definition of “affiliated group,” but replacing “at least 80%” with greater

than 50%.

• General Effective Date: Applies generally for tax years beginning on or after July 23, 2020.

• Limited retroactive application: Taxpayers are permitted to apply the election retroactively to any CFC tax

year beginning after December 31, 2017, if they apply the final regulations consistently to each year for

which the election is made.

• Final Regs refer to the “GILTI High Tax EXCLUSION” and the Subpart F High Tax EXCEPTION.

18





Overview • .

• The GILTI high-tax exclusion allows taxpayers to elect to exclude from their GILTI inclusion

a CFC's gross tested income subject to a high effective rate of foreign tax. The final

regulations adopt the threshold rate of foreign tax of 18.9% (i.e., 90% of the highest domestic

corporate tax rate under IRC Section 11 (currently, 21%)) to determine whether an item is

subject to a high effective foreign tax rate.

• Generally, the determination of whether an item of a CFC's gross tested income is subject to

the requisite effective rate of foreign tax is determined according to the following analytical

steps:

1) Identify the CFCs that are members of the same “CFC group” for the relevant tax year

of the US shareholder.

2) For each such CFC, identify the CFC's “tested units.”

3) Identify the tentative “gross tested income items” of each tested unit of a CFC.

4) Allocate and apportion the CFC's deductions (including current-year taxes) to each

tentative gross tested income item to determine the (net) tentative tested income item.

5) For each tentative tested income item, calculate the item's effective foreign tax rate with

reference to the current-year taxes allocated and apportioned to the item.

19




Companion PROPOSED Regs (published July 23, 2020)

address the High Tax Kick-Out Exception of § 954(b)(4)• .

At a Glance:

• The companion 2020 Proposed Regulations address the Subpart F High Tax

Exception. If adopted, they would:

• Radically change the existing Subpart F Income High-Tax Exception, conforming

them to the “GILTI High-Tax Exclusion” and would apply a single “Unified

Election” to both provisions for a tax year. Thus, the proposed regulations

addressing the Subpart F 954(b)(4) High Tax Exception would generally:

• Incorporate the “tested unit” principles of the GILTI high-tax exclusion into the

Subpart F income high-tax exclusion (thus limiting “blending” of rates);

• Combine the GILTI high-tax election and the subpart F income high-tax

election into a single election, requiring the election to apply simultaneously

to both the GILTI and the subpart F income high-tax "exceptions," or

to neither; and

• Conform generally to the rules governing the elections (including the

requirement to apply the unified election to every CFC in a CFC group).

20




V. Planning Opportunity: Retroactive Application

• Retroactive Application of the Final GILTI High-Tax Exception Rules is available, but ONLY IF certain

strict deadlines are met.

• Because retroactive application of the FINAL GILTI High-Tax Exception Regs is available ONLY if the rules

are applied consistently each year, a lot of taxpayers are likely to decide to file amended tax returns to apply

the GILTI High-Tax Exclusion for tax years beginning as early as January 1, 2018, and to meet the consistent

application requirement.

• Abbreviated FILING DEADLINES: A controlling domestic shareholder wishing to elect on an amended

return for the 2018 calendar year would have until April 2021 (24 months from April 2019 and less than 9

months from the issuance of the Final Regs) for all U.S. Shareholders of the CFC to file their amended returns

and pay any resulting taxes.

• Also, ALL the U.S. Shareholders will have to both file their amended returns and pay any outstanding liability

within a 6-month period. If other years of the U.S. Shareholder are impacted by the election, amended returns

for those years must also be filed within this time period.

• In considering whether to even file an amended return, the controlling domestic shareholders should determine

the affected “CFC group” (since the election will apply to all CFCs in the CFC group) and the “tested units” of

the relevant CFCs and apply the computation rules to each such tested unit in order to model out whether

making such a retroactive election is beneficial.

• POINT: The time to act is now, and time is of the essence. Taxpayers will need to act very quickly if they

wish to take advantage of the GILTI High-Tax Exception Election for 2018.

21




V. Planning Opportunity: Plan in & out of

Subpart F’s Application on Year-to-Year Basis

• The 2019 Proposed Regulations provided that once the GILTI High-Tax Exception was made, it applied for all

subsequent years, unless revoked. Moreover, a taxpayer had to wait 60 months (5 years) to re-elect once the

election was revoked.

• The FINAL GILTI Regulations remove the 5-year rule, and make the GILTI High-Tax Election an annual

election.

• This creates planning opportunities, if careful modeling is done.

• Because both the Subpart F and GILTI High-Tax Exceptions can be elected on an annual basis, the controlling

domestic shareholders can skip the GILTI election in one year in which there are significant foreign tax credits

they want to preserve, if modeling reveals this would be tax beneficial.

• Even if the 2020 Proposed Regulations are finalized, such that a tested unit has just ONE general tested item

that includes both its Subpart F and GILTI Tested Income, in some circumstances, it may still be advantageous

to selectively and affirmatively plan into Subpart F structures, and not make the GILTI High-Tax Exception,

thereby bringing up large amounts of general basket foreign tax credits for which there would be a

carryforward.

• In subsequent years, modeling may show that it would be beneficial for the controlling domestic shareholders

to go back to elect the GILTI High Tax Exception election for those years.

• Yearly modeling is now required to optimize both the Subpart F High-Tax Exception and the GILTI High-Tax

Exclusion, in relation to the foreign tax credit rules (which differ for each regime).

22




V. Tax Pitfalls to Avoid• Failure to fulfill “Notice” requirements nullifies the GILTI High-Tax Exception election: An election (or

revocation) affects non-controlling U.S. shareholders. Thus, the Final Regs impose strict “notice requirements” on the controlling domestic shareholders. The 2020 Final Regs’ incorporate the notice requirements in Reg. § 1.964-1(c)(3)(iii), which generally require written notice to all domestic direct & indirect shareholders. The notice requirements include, but are not limited to, the duty to inform shareholders of actions taken on behalf of the foreign corporation, the tax year, the identification of a designated “notice” shareholder who retains a jointly executed consent confirming that the action has been approved by all of the controlling domestic shareholders. Don’t mess up the notice requirements! Know them.

• Failure to Comply with the “Consistency Requirements” and the “CFC grouping” rules can nullify the GILTI High-Tax Election: The GILTI High-Tax Exclusion Election, if made, applies to all commonly-controlled CFCs that meet the effective tax rate test. (According to the Preamble, this rules is necessary to prevent distortive application of the Sec. 904 FTC limitations. Consistency rules require taxpayer to take into account all of its high-taxed tentative tested income (along with all properly allocable and apportioned deductions).

– The final regulations provide “CFC group” rules for purposes of determining the commonly-controlled CFCs subject to the consistency requirements. For this purpose, a CFC group is defined by reference to modified “affiliated group” definition of § 1504(a), and with modified § 318 attribution rules. It is critical to know these modifications, including fact that § 318(a)(3)(A) (attribution from partnerships) and (B) (attribution from trusts) do not apply; § 318(a)(4) only applies to options that are reasonably certain to be exercised; and §318(a)(2)(C) (attribution to corporations) is applied by substituting “5 percent” for “50 percent.”

– Moreover, under the modified § 318 rules, a CFC group can apparently exist for purposes of the GILTI High-Tax Exception even when there is no corporate common parent. The Preamble to the Final Regulations says that if Individual 1 owns 100% of CFC1 and CFC2, CFC1 and CFC2 would form a “CFC group.” This modified rules would apparently also apply to multiple CFCs owned by a single domestic partnership.

•




23


Key Take-Aways• .

• The GILTI high effective foreign tax rate threshold adopted by the Final Regs will be difficult to meet for

most taxpayers. (Many countries’ effective tax rates do not exceed 18.9%.) This is especially true as it

applies to each “tested unit” of a CFC, as the 2020 Final (and 2020 Proposed) Regulations make it much

more difficult to “average” or blend tax rates.

• A LOT of careful modeling will be required to determine the extent to which the new GILTI High Tax

Exclusion will, if elected, actually result in a reduction of a taxpayer’s GILTI inclusion (for current year,

future years, and also for previously filed tax years beginning after 2017).

• The 2020 Proposed Regulations, if made final, would replace the existing Subpart F Income High-Tax

Exception and the newly-finalized GILTI High-Tax Exclusion rules, and introduce with a Unified High-Tax

Exception (which will largely end the flexibility taxpayers are currently enjoying under the current Subpart

F High-Tax Exception).

• Many aspects of the July 2020 proposals were predictable (for example, the CFC group consistency rules

and the tested unit standard).

• The combination of the subpart F income high-tax exception and GILTI high-tax exclusion into a unified

high-tax exception may come as a surprise to many practitioners and taxpayers -particularly those that have

applied the current high-tax exception in recent years.

• Taxpayers and their advisors should expect some, if not most, provisions in the 2020 Proposed Regulations

to be issued in Final Form, and so should be evaluating whether the Unified High Tax Exception is likely to

be advantageous, or disadvantageous, and plan accordingly.

24




Pamela A. Fuller, Esq.

=============================================================Ms. Fuller is a corporate and international tax attorney, with over two decades of experience. She advises a wide range of clients--including private and public companies, joint ventures, private equity funds, individuals, C-Suite executives, “Start-Ups,” and government entities--on transactional, investment, and supply-chain strategies to achieve optimal tax and business results. She provides sophisticated tax planning services across most industry sectors, including financial services, real estate development, healthcare, pharmaceutical, construction & engineering, infrastructure, oil & energy, retail, and myriad software & emerging digital technologies and services.

Ms. Fuller is also a seasoned taxpayer advocate, with years of experience resolving complex U.S. federal, state, and foreign taxcontroversies, as well as asserted tax penalties.

Ms. Fuller is Chair of the ABA’s Tax Section’s Tax Policy Committee, and also Co-Chair of the International Tax Committee of the ABA’s worldwide International Law Section. She frequently speaks at law conferences, and publishes papers on international tax topics in peer-reviewed law journals. She also serves on several steering committees and boards, including the International Fiscal Association – USA Branch’s New York Congress; TaxLaw 360’s International Tax Advisory Board; and the New York State Bar’s “Global Law Week.” She is a founding member of the New York City Bar’s “Taskforce on the Independence of Lawyers and Judges”and a Fellow of the American College of Tax Counsel.

Ms. Fuller began her legal career at the United States Tax Court, serving three consecutive 2-year terms as an Attorney Advisor to that court’s chief judge during an exceptionally busy and demanding time that federal court, handling transfer pricing cases and large tax shelters. Ms. Fuller holds an LL.M. in Tax Law from New York University School of Law, where she served as Graduate Editor of NYU’s international law review and completed post-LL.M. studies in international business and comparative law; a J.D.from Seattle University; and a B.A. from the University of Washington. Ms. Fuller is admitted to practice law in several U.S. state jurisdictions and multiple federal courts, including the U.S. Tax Court.

Prior to becoming an attorney, Ms. Fuller worked for a over a decade as a business news reporter and an all-news radio anchor for a highly regarded NBC News affiliate in Seattle covering national, and transnational business, the emerging tech industry, as well as geo-political developments. In that capacity, she interviewed the founders and CEO’s of some of the world’s most successfulcompanies.

Zahn Law Group

Tax Counsel (Tax, M&A, International

1185 Ave of the Americas, 3rd Floor

New York, NY [email protected]

Tully Rinckey, PLLC

Of Counsel (Tax, M&A, International)

777 Third Avenue, 21st Floor

New York, NY [email protected]

© Aronson LLC | aronsonllc.com |

New GILTI High-Tax Exclusion Final Regulations: Tested Units, Controlled

CFC Groups, and Retroactive Application

Alison N. Dougherty, J.D., LL.M., CPADirector, Tax Services

Aronson LLCNovember 19, 2020

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GILTI High Foreign Tax Exception Final Regulations T.D. 9902 (7/20/2020)

© 2020 | All Rights Reserved | Alison N. Dougherty |

I.R.C. § 954(b)(4) GILTI High Foreign Tax Exception – Final Regulations T.D. 9902

29

▪ U.S. Treas. Reg. § § 1.951A-0, 1.951A-2, 1.951A-7, 1.954-0, 1.954-1, and 1.1502 ▪ High-taxed income = effective foreign tax rate > 18.9% (> 90% of 21% U.S. federal corporate tax rate under I.R.C. § 11)▪ ETR = Foreign income tax expense paid or accrued on tentative tested income / tentative tested income (after

subtracting foreign income tax expense) + foreign income tax expense▪ ETR = Foreign income tax expense paid or accrued on tentative tested income / tested foreign income before

subtracting foreign income tax expense▪ Determine GILTI tested income and apply ETR test on tested unit basis and must combine tested units in same country▪ Tested units = CFC + pass-through entities (partnerships + DREs) held by CFC, and foreign branches of CFC▪ Combination rule aggregates a CFC and its other tested units into one tested unit if they are tax residents of

or located in the same country ▪ Election by U.S. controlling shareholder(s)▪ Election statement must be attached to the U.S. controlling shareholder’s tax return▪ U.S. controlling shareholder must provide notification to non-controlling shareholders▪ Election is an annual election (instead of binding 5 year election in proposed rules) ▪ Consistency requires application of election to all high-taxed income of all CFCs that the U.S. shareholder controls in a

CFC group ▪ Election applies to all CFCs within CFC group▪ Foreign NOL carryforwards are not factored into the calculation of tested income for the ETR calculation since not

accounted for in the federal tax base under federal tax accounting principles (i.e., foreign NOLs are timing differences between foreign and federal tax bases)

▪ Special rules on interest expense allocation and apportionment▪ Excluded GILTI E&P classified as I.R.C. § 959(c)(3) non-PTEP that can qualify for I.R.C. § 245A DRD when CFC makes

distribution to 10% U.S. C corporation shareholder▪ Election allowed on amended federal return filed within 24 months of original due date of inclusion year only if all U.S.

shareholders of the CFC file amended returns


GILTI High Foreign Tax Exception – Final Regulations T.D. 9902

30

▪ U.S. Treas. Reg. § 1.951A-2(c)(8) Examples ▪ Example 1 – Effect of disregarded interest▪ Example 2 – Disregarded payment for services ▪ Example 3 – Interest expense allocated and apportioned with respect to income of a

lower-tier CFC▪ Example 4 – Application of tested unit rules ▪ Example 5 – CFC group—controlled foreign corporations with different taxable years


GILTI High Foreign Tax Exception – Final Regulations T.D. 9902

31

▪ U.S. Treas. Reg. § 1.951A-2(c)(8)(iii)(C) Example 3 – Interest expense allocated and apportioned with respect to income of a lower-tier CFC

▪ Facts: USP owns 100% of CFC1. CFC 1 owns 100% of FDE1. FDE1 owns 100% of CFC3. CFC1 accrues $1,000 of interest expense. CFC1 allocates and apportions interest expense based on the modified gross income method of Reg. § § 1.861-9(j) and 1.861-9T(j).

CFC1 FDE1 CFC3Gross Tested Income $3,000 $1,000 $1,000Interest Expense ($600) ($200) $0Foreign Tax ($200) ($200) ($100)Tentative Tested Income $2,200 $600 $900

Interest Expense A/A $3K/$5K x $1K $1K/$5K x $1k $1K/$5K x $1K* **

*$200 interest expense A/A to residual income and not included in tentative TI calculation for CFC3.** $200 interest expense can be A/A to CFC1 gross tested income calculation since CFC3 does not qualify for I.R.C. § 954(b)(4) GILTI high-tax exclusion.

Foreign Tax $200 $200 $100Tentative TI + Foreign Tax $2,400 $800 $1,000 Effective Foreign Tax Rate (ETR) 8.3% 25% 10%Qualifies for Exclusion No Yes No

Subpart F High Foreign Tax ExceptionProposed Regulations REG-127732-19 (7/20/2020)


Subpart F Income High Foreign Tax Exception – Proposed Regulations REG-127732-19

33

▪ Prop. Reg. § § 1.951A-2, 1.951A-7, 1.952-1, 1.954-1, 1.954-3, 1.954-6, 1.954-7, 1.954-8, and 1.6038-2▪ Proposed regulations conform the rules for implementing the Subpart F high-tax

exception with the rules for the GILTI high-tax exception ▪ ETR measured on tested unit by tested unit basis ▪ FPHC income grouped similarly as under current rules ▪ Income and deductions attributable to equity transactions (e.g., dividends and stock

losses) grouped separately if subject to preferential rates of tax exemptions▪ De minimis combination rule applies after same country combination rule for tested

units (less than the lesser of 1% of CFC’s gross income or $250K USD)▪ Unified election applies to all GILTI and Subpart F income of all CFCs in CFC group

changing the current rule that applies on the basis of each CFC▪ High-tax exception applies before the 70% full inclusion rule ▪ All U.S. shareholders of CFC must file amended returns within 24 months of original

due date of the inclusion tax year

Practical Planning Considerations of GILTI High Foreign Tax Exception


U.S. Individual Shareholder’s GILTI Inclusion with and without IRC Section 962 Election

35

Examples 1(a) and 1(b) – I.R.C. § 951A GILTI Inclusion with and without the I.R.C. § 962 election

U.S. individual A is an I.R.C. § 958(a) direct 10% shareholder in a controlled foreign corporation for the entire year in 2020. A’s share of an I.R.C. § 951A GILTI inclusion from the CFC is $1M USD for the tax year. A also has U.S. source wage income of $2M USD for the year. The CFC’s foreign corporate income tax rate is 30%. The CFC is a qualified foreign corporation in a treaty country and the U.S. individual shareholder meets the applicable holding period requirement for the qualified dividend tax rate. What is A’s U.S. tax liability with and without an I.R.C. § 962 election?


U.S. Individual Shareholder’s GILTI Inclusion without IRC Section 962 Election

36

Example 1(a) – I.R.C. § 951A GILTI inclusion without I.R.C. . § 962 election

▪ $2M U.S. source wage income + $1M GILTI = $3M total worldwide taxable income▪ U.S. federal income tax liability = {[$2M x 37%] + [$1M x (37% + 3.8% NIIT)]} = $740K

+ $408K = $1.148M *Assumes NIIT G election in year of GILTI inclusion. ▪ No foreign tax credit or 50% I.R.C. § 250 deduction to offset U.S. federal tax on GILTI

inclusion ▪ No additional U.S. federal tax in year of GILTI PTEP distribution


U.S. Individual Shareholder’s GILTI Inclusion with IRC Section 962 Election

37

Example 1(b) – I.R.C. § 951A GILTI inclusion with I.R.C. § 962 election

▪ $2M U.S. source wage income + $1M GILTI = $3M total worldwide income▪ U.S. federal income tax at 37% on $2M U.S. source wage income = $740K▪ Foreign tax on GILTI = $1M x 30% = $300,000 (based on inclusion %) ▪ I.R.C. § 78 gross up for foreign tax on GILTI = $1M x 30% = $300K

▪ Taxable income from GILTI before I.R.C. § 250 deduction =

$1M + $300K = $1.3M

▪ Taxable income from GILTI after I.R.C. § 250 deduction = $650K

▪ U.S. federal tax at 21% on taxable income from GILTI = $650K x 21% = $136.5K▪ GILTI foreign tax credit subject to 80% limitation = $300K x 80% = $240K ▪ Residual U.S. federal income tax on GILTI = $0 ($136.5 U.S. tax-$136.5 FTC)▪ No carryforward or carryback allowed for $163.5K ($300K-$136.5) excess foreign

tax on GILTI ▪ No excess limitation of $103.5K ($240K-$136.5K) allowed in the GILTI basket▪ U.S. federal tax on dividend in year of GILTI PTEP distribution =

[($1M-$136.5K) x (20% + 3.8% NIIT) = $205.5K ▪ Total U.S. federal tax on GILTI inclusion and GILTI PTEP distribution = ($136.5K +

$205.5K) = $342K


U.S. Individual Shareholder’s GILTI Inclusion with and without IRC Section 962 Election

38

Examples 1(a) and 1(b) – Summary of U.S. federal tax consequences from I.R.C. § 951A GILTI inclusion with and without I.R.C. . § 962 election

▪ U.S. federal tax payable without I.R.C. § 962 election = $1.148M ▪ U.S. federal tax payable with I.R.C. § 962 election =

{$740K + [($1M-$136.5K) x (20% + 3.8% NIIT)]} = ($740K + $205.5K) = $945.5K

▪ U.S. tax savings on GILTI with I.R.C. § 962 election = [$408K – ($136.5+205.5K)] = $66K

▪ Real U.S. tax savings on GILTI with I.R.C. § 962 election in terms of U.S. federal tax payable = ($408K-$205.5K) = $202.5K


U.S. Individual Shareholder’s U.S. Tax Consequences with GILTI High Tax Exception

39

Example 2 – U.S. federal tax consequences to U.S. individual shareholder electing GILTI high-tax exception *Assume same facts as examples 1(a) and 1(b).

▪ Zero U.S. federal tax liability on GILTI inclusion in year when CFC earns the income▪ No need for the I.R.C. § 962 election ▪ U.S. federal tax on U.S. source wage income in current tax year = $740K▪ The excluded CFC E&P is I.R.C. § 959(c)(3) non-previously taxed E&P ▪ U.S. federal tax on dividend in year of I.R.C. § 959(c)(3) non-PTEP distribution =

[$1M x (20% + 3.8% NIIT)] = $238K *Qualified dividend tax rate applies if CFC is a qualified foreign corporation in a treaty country and the U.S. shareholder meets the holding period requirement.

▪ U.S. federal tax on dividend in year of I.R.C. § 959(c)(3) non-PTEP distribution = [$1M x (37% + 3.8% NIIT)] = $408,000 *Qualified dividend tax rate does not apply if

CFC is not a qualified foreign corporation in a treaty country and/or the U.S. shareholder does not meet the holding period requirement.

▪ Tax deferral with GILTI high foreign tax exception election


U.S. Individual Shareholder’s GILTI Inclusion and IRC Section 962 Election

40

Example 3 – Summary of U.S. federal tax consequences from I.R.C. § 951A GILTI inclusion with I.R.C. . § 962 election *Assume same facts as Examples 1(a) and 1(b) except that the CFC is not in a treaty country.


{$740K + [($1M-$136.5K) x (37% + 3.8% NIIT)]} = ($740K + $352K) = $1.092M

▪ Total U.S. tax savings on GILTI with I.R.C. § 962 election? = [$408K – ($136.5+352K)] = ($80.5K)

▪ Real U.S. tax savings on GILTI with I.R.C. § 962 election in terms of U.S. federal tax payable = ($408K-$352K) = $56K


U.S. Individual Shareholder’s GILTI Inclusion and IRC Section 962 Election

41

Example 4 – Summary of U.S. federal tax consequences from I.R.C. § 951A GILTI inclusion with I.R.C. § 962 election *Assume same facts as Examples 1(a) and 1(b) except that the CFC is in a tax haven jurisdiction that is not a treaty country.


{$740K + $105K + [($1M-$105K) x (37% + 3.8% NIIT)]} = ($740K + $105K + $365K) = $1.21M

▪ No foreign tax, no foreign tax credit, no I.R.C. 78 gross up▪ No qualified dividend tax rate on CFC’s GILTI PTEP distribution ▪ Total tax savings on GILTI with I.R.C. § 962 election? = [$408K – ($105K+365K)] =

($62K) ▪ Real tax savings on GILTI with I.R.C. § 962 election in terms of U.S. federal tax payable

= ($408K-$470K)? = ($62K)

Additional U.S. Tax Consequences of GILTI High-Tax Exception Election


Additional U.S. Tax Consequences of GILTI High-Tax Exception Election

44

▪ I.R.C. § 960 GILTI foreign tax credits on excluded GILTI high-taxed income not utilized▪ Adjusted taxable income (ATI) is not increased by excluded GILTI high-taxed income

for I.R.C. § 163(j) interest expense limitation▪ Excluded GILTI high-taxed income within scope of I.R.C. § 904(b)(4) and treated like

any other income that is not GILTI or Subpart F income▪ Portion of value of CFC stock relating to the excluded high-taxed income assigned

to I.R.C. § 245A subgroup ➢ FTC limitation calculation disregards A/A deductions including interest expense

with respect to foreign corporation stock in basket with foreign source dividend income that qualifies for I.R.C. § 245A DRD

➢ Increase to numerator and denominator of FTC limitation calculation for the basket in which the deductions are disregarded

➢ Increase in denominator of FTC limitation calculation in other basket▪ QBAI subtraction not utilized in net DTIR calculation for GILTI inclusion▪ Tested losses further decrease GILTI FTC inclusion % when high-taxed income is

excluded

GILTI High Foreign Tax Exception Reporting on Form 5471 Schedules I-1 and J (Rev. December 2019) after 2017 TCJA Tax Reform


Form 5471 Information Return of U.S. Persons with Respect to Certain Foreign Corporations, Schedule I-1

Information for Global Intangible Low-Taxed Income(Rev. December 2019)

46


Form 5471 Information Return of U.S. Persons with Respect to Certain Foreign Corporations, Schedule J

Accumulated Earnings & Profits (AEP) of Controlled Foreign Corporation(Rev. December 2019)

47




48




49

Form 5471 Schedule J – Draft 8/24/2020 (Rev. December 2020) after 2017 TCJA Tax Reform




51




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53

54© 2020 | All Rights Reserved | Alison N. Dougherty |

ALISON N. DOUGHERTY, J.D., LL.M., CPADirector, Tax ServicesAronson LLC

Alison N. Dougherty provides tax services as a Director at Aronson LLC.She specializes in U.S. international tax reporting, compliance,consulting, planning, and structuring. She has extensive experienceassisting clients with U.S. tax reporting and compliance for offshoreassets and foreign accounts. She provides outbound U.S. internationaltax guidance to U.S. individuals and businesses with activities in othercountries. She also provides inbound U.S. international tax guidance tononresident individuals and businesses with activities in the UnitedStates. She has worked extensively in the area of U.S. international taxreporting and compliance with the preparation of the U.S. FederalForms 5471, 8992, 8993, 926, 8865, 8858, 5472, 1042, 1042-S, 8621,8804, 8805, 8813, 8288, 8288-A, 8288-B, 1116, 1118, 1120-F, 1040-NR,3520, 3520-A, 2555, 5713, 8832, 8833, 8840, 8843, 8854, 8938, andFBAR. She has counseled U.S. taxpayers regarding the outboundformation, capitalization, acquisition, operation, reorganization, andliquidation of foreign companies. She has significant experience withU.S. Federal nonresident tax withholding, foreign partner taxwithholding, and FIRPTA withholding. She works closely withnonresident individuals and businesses regarding inbound U.S. realproperty investment. She has assisted U.S. taxpayers with IRS amnestyprogram disclosures of offshore assets and foreign accounts.

Alison completed the LL.M. (Master of Laws) in Securities andFinancial Regulation in 2004 with academic distinction at GeorgetownUniversity Law Center. She completed the LL.M. (Master of Laws) inTaxation in 2000 and the Juris Doctor in 1999 at the University ofDenver College of Law. She completed a Bachelor of Arts degree inForeign Language in 1995 at Virginia Commonwealth University.

(301) [email protected]

Aronson LLC111 Rockville PikeSuite 600Rockville, Maryland 20850 USAWashington, DC Metro Area

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