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New Transfer Pricing Opportunities in the COVID Environment

by

 Frank J. Vari, JD, MTax, CPA

We have previously written on transfer pricing opportunities in the COVID environment and, as the COVID pandemic continues to impact global supply chains, and our multinational clients in our transfer pricing practice continue to reap economic benefits via proactive transfer pricing adjustments.  Multinational taxpayers that fail to actively change existing supply chain transfer pricing strategies will meet upended treasury strategies where cash needs no longer match cash sources as well as simple tax inefficiencies that can be avoided.  It is our belief that, as we wrote in April, there will continue to be transfer pricing opportunities in the COVID environment with international tax benefits as well.

Global transfer pricing strategies are traditionally built on multi-year models in normal operating times.  It is not uncommon for these transfer pricing plans/policies to only be updated on an annual basis.  None of these plans, or the economic models upon which they are built, were designed to proactively address a seismic supply chain event like the COVID pandemic.  An existing and unmodified transfer pricing plan is now likely materially incorrect and almost instantly out of date.  The question is then what can be done to modify, or create, a transfer pricing strategy that reflects current conditions as well as the opportunities these new strategies present.

Finance and tax professionals should perform a detailed review of the business operations to mitigate TP risks and identify the TP opportunities to help management deal with their cash and operational concerns.

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Best Practices For Transfer Pricing Planning

Successful tax strategies are always based on communication and knowledge of the taxpayer’s operating environment.  That has never been truer than now as this is the most dynamic and fast moving international business environment in modern times.  Supply chains are changing very rapidly including the reallocation of associated functions and risks.  Tax professionals must keep track of these business changes in order to ensure that their transfer pricing reflects the new reality and that cash balances and tax bills don’t create problems for the group.

Functions and Risks

The cornerstone of any transfer pricing analysis is the functional analysis that describes the allocation of functions and risks across a global supply chain.  Some functions and risks stand out as significantly impacted by the COVID environment.  Those we see are:

  • Liquidity – This is the most critical factor for many clients as they struggle to balance global cash flows where financial markets are in turmoil, customer orders are imperiled due to global shutdowns, and operating costs rise across the world to meet new safety concerns.
  • Supply Disruptions – Traditional suppliers, internal and external, have been taken offline either by government mandate or workplace safety issues. Alternative suppliers have had to step in at much higher costs to ensure supply chains operate properly if at all.
  • Logistics – Global transportation networks have been placed under significant stress resulting in product shortages in end markets and backed up inventories in production facilities. This has resulted in new supply chains not contemplated by existing transfer pricing plans.
  • Services – Global service providers ranging from legal, HR, IT, and other areas have changed to meet a crisis environment. Services traditionally performed in house have been outsourced, or vice versa, resulting in significantly increased costs for global corporate services as well as new service providers.

The allocation of functions and risks supports the economic underpinnings of a multinational transfer pricing strategy and the related tax and treasury results.

Transfer Pricing Opportunities

The very first step is to review existing transfer pricing documentation to understand any differences in the current environment to those facts supporting the economic comparables in place.   In addition to the documentation, any intercompany contracts agreements for sale of goods, services, or the use or development of intellectual property must be analyzed to understand if unusual or unforeseen risks such as COVID have been covered and how they should be allocated between participants.

One common fact we see changing is the location performing intercompany services.  Government mandated lockdowns and other related factors are forcing these changes.  As a result, the modification of intercompany services contracts must be performed immediately to ensure that documentation and compliance are maintained.  This is but one example of the multiple changes impacting documentation.

Force Majeure Clauses

The documentation review discussed above must consider if each party is able to fulfill their contractual responsibilities under COVID or whether force majeure should be invoked to alleviate either party’s obligations during the pandemic.  This would allow related parties to seek relief from payment of recurring charges such as management fees or royalties. An excellent way to support the arm’s length nature of an intercompany declaration of force majeure is to determine if force majeure provisions have already been invoked with third party suppliers or customers of within the taxpayer’s industry.

If there is no force majeure clause in the intercompany contract, alternative legal remedies or renegotiating contracts to deal with nonperformance issues or other extraordinary circumstances should be evaluated.  Courts have accepted that renegotiating intercompany agreements is consistent with arm’s-length dealings which, when coupled with the existence of third party force majeure invocation within the industry, provides solid support.  Further, the local tax authorities may understand that a contractual restructuring is a better option than going out of business altogether even if short term profitability is impacted.

Create COVID Specific Policies

In the short term, policies can be created to address major changes and disruptions.  These changes are highly dependent on the operational nature of the business.  They can range from credit protection to expanded compensation for headquarters or shared services.  It is very important to note that any changes must remain arm’s length which places the burden on the taxpayer to monitor developments with third parties and within their industry to determine what allowances are taking place.  .

If the operational changes appear to be longer term, there is likely a case for an overall supply chain restructure.  Many reading this may ask what exactly this new supply chain will look like which is a greet question in the fog of crisis.  However, proactive tax professionals will be looking for the first clearing in the fog to make immediate corrections to global supply chain agreements and economics.

Benchmarking Adjustments

It is probably obvious by now that the use of a multiple year approach may not be suitable for generating reliable comparables in the COVID environment.  A global taxpayer should evaluate whether the use of a year-by-year approach could better capture the effect of dramatic changes in their markets.  There are certainly cases where the use of multiple year averages for years where the taxpayer’s comparables suffered from similar economic conditions that could help to develop a more realistic range.

Another more practical approach may be to expanding the acceptable range of results beyond the current interquartile range.  These changes must be assessed on a case-by-case basis and are very fact dependent and local country transfer pricing rules must be reviewed.

Government Relief Programs & Policies

We are now seeing a number of countries offering relief programs to support faltering economies and we expect to see more if indeed a second COVID wave develops.  Multinational groups must very closely monitor any local country tax news to determine if relief is being provided in some shape or form to their global supply chain.  It may seem like this goes without saying but we do see these programs or policies often being implemented without the tax team’s knowledge and, as such, they are failing to properly evaluate or take advantage of these often very favorable programs.  Specific to transfer pricing, information releases at both the OECD and local country levels must be monitored closely.

Conclusion

As the COVID supply chain effects continue to evolve, we will continue to identify ways to ensure that transfer pricing policies support both tax and treasury goals.  The thoughts and ideas presented here represent just a few of the strategies out there to ensure that goals are met.  Because each strategy is fact specific, no single strategy applies to all.  We encourage multinational taxpayers to stay tuned in this ever evolving environment and remember that the arm’s-length principle comes always comes down to the idea that independent enterprises must always consider the options realistically available to them especially in times of crisis.

Frank J. Vari, JD, MTax, CPA is the practice leader of FJV Tax which is a CPA firm specializing in complex international and U.S. tax planning.  FJV Tax has offices in Wellesley and Boston.  The author can be reached via email at frank.vari@fjvtax.com or telephone at 617-770-7286/800-685-2324.  You can learn more about FJV Tax at fjvtax.com.

Does PPP Loan Forgiveness Create Taxable Income?

by

Frank J. Vari, JD, CPA, MTax

We have taken a look at forgiveness of indebtedness issues related the Payroll Protection Program (PPP) loans that may be forgiven in whole or in part for some of our clients who are modeling the impact of a PPP loan.  I thought I’d share it with everyone as any potential any PPP recipient would need to know this up front.  All of this is current as of today but could change in this fast moving environment.

Federal

Under IRC §61(a)(11), the reduction or cancellation of indebtedness generally results in cancellation of debt (COD) income to the debtor.  An “identifiable event” determines when a debt has been reduced or canceled. An identifiable event includes a creditor accepting less than full payment as a complete discharge of a debt, the acquisition by a debtor of the debtor’s own debt, and events or circumstances that remove the likelihood that a debt will be paid.  A forgiven PPP loan would seem to fit here.

Under the CARES Act, an eligible recipient is eligible for forgiveness of indebtedness on a covered PPP loan in an amount equal to the sum of costs incurred and payments made during the covered period for payroll costs, interest payments on a covered mortgage obligation, and any covered rent obligation, covered utility payments.  See Act §1106(b).

Under the CARES Act, the amount which, but for this subsection, would be includible in gross income of the eligible recipient by reason of forgiveness described in subsection ACT §1106(b) is excluded from gross income.  See Act §1106(i) which specifically addresses this.

The Act does not specifically modify IRC §108 regarding COD income. It appears that exclusions for COD income under IRC §108 should be applied first with a resulting reduction in tax attributes if applicable.  CARES Act §1106(i) then excludes any remaining amount of COD income realized as a result of PPP loan forgiveness.

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State

As noted above, CARES Act §1106 provides that any forgiveness of a PPP loan under the Act is excluded from the recipient’s federal gross income. However, also as noted above, the Act does not specifically modify IRC §108 related to COD income. Rather, it provides “For purposes of the Internal Revenue Code of 1986, any amount which, but for this subsection, would be includible in gross income of the eligible recipient by reason of forgiveness described in subsection (b) shall be excluded from gross income” See Act §1106(i).

Most states conform to federal treatment of cancelation of indebtedness income under IRC §108 with some limited exceptions.  It is very unclear how PPP loan forgiveness will be treated at the state level if it is not effectuated via IRC §108 which is the clearest technical path to COD income.  Most states begin the calculation of state taxable income with federal gross, adjusted gross, or taxable income, but the specific method for performing this calculation, as outlined in the applicable state statutes, may result in different treatment in different states, absent further guidance.

Please do stay tuned here especially at the state level.

Please let us know how we can help you plan for your tax planning and compliance needs.  Learn more about our business tax practice or our firm by contacting us at FJVTAX.com.

Frank J. Vari, JD, MTax, CPA is the practice leader of FJV Tax which is a CPA firm specializing in complex international and U.S. tax planning.  FJV Tax has offices in Wellesley and Boston.  The author can be reached via email at frank.vari@fjvtax.com or telephone at 617-770-7286/800-685-2324.  You can learn more about FJV Tax at fjvtax.com.

 

 

Common GILTI Compliance Errors

by

Frank J. Vari, JD, CPA, MTax

In our international tax practice, we both prepare and review a large number of Global Intangible Low-Taxed Income (“GILTI”) tax calculations and US corporate and individual tax returns related to same.  As is common with most new tax rules, especially those as complex and wide ranging as GILTI, practitioners and taxpayers stumble until they familiarize themselves with calculation and reporting requirements.  It is no different with GILTI and this article will help outline some of the more common errors we’ve come across.

GILTI Introduction

It is no longer news that the 2017 Tax Cuts and Jobs Act introduced a new anti-deferral tax on Controlled Foreign Corporations (“CFC”) known as GILTI.  Roughly modeled after the taxation of Subpart F income, a US shareholder of one or more CFCs must include GILTI as US taxable income, in addition to Subpart F and other anti-deferral type income, regardless of whether the US shareholder receives an actual distribution.

The GILTI calculation itself can certainly be complex especially where multiple CFCs are involved.  Quite basically, GILTI is the excess of a US shareholder’s pro-rata share of a CFC’s income reduced by an allowable return equal to 10% of the CFC’s adjusted tax basis in certain depreciable tangible property or Qualified Business Asset Investment (“QBAI”).  US corporate CFC shareholders are given a 50% deduction via IRC §250 against any GILTI inclusion and can, subject to certain limits, credit IRC §902 taxes paid by the CFC to offset the US tax resulting from the GILTI inclusion.

GILTI certainly aims for technology and pharmaceutical companies with significant overseas low-taxed income and, at least in theory, discourages them from mobilizing intellectual property to shift profits outside of the US.  The issue is that, as written, it really doesn’t just address income from identified intellectual property, at least not in a traditional sense, resulting in unintended consequences for corporate and noncorporate taxpayers with operations outside the US.  As such, a wide net has been cast and many taxpayers and practioners are working hard to properly address the GILTI rules.

Now that we’ve discussed the basic rules, what are the errors that we most often come across?  This is certainly not an exhaustive list and there is no particular ordering here.

No Individual Taxpayer Rate Reduction

As noted above, individual CFC shareholders are not eligible for either the aforementioned IRC §250 deduction or the use of IRC §902 foreign tax credits against their GILTI liability.  Both of these generous benefits are afforded to corporate shareholders.  Instead, they are subject to US tax at their individual income tax rates up to 37% on their GILTI inclusions.  That’s a big deal to US individual CFC shareholders who engaged in sophisticated and expensive international tax planning to avoid Subpart F income only to be hit with similarly taxed GILTI inclusions.  As we’ve previously written, these issues can be addressed by proper planning but the law itself is rather unforgiving as it is currently written.

No High Taxed Exception

GILTI is somewhat similar to Subpart F as its anti-deferral brethren.  However, the commonalities do not include a high taxed exception which, as of now, only belongs to Subpart F.  This rule generally excludes from US taxable income any Subpart F income already taxed at a sufficiently high rate in foreign jurisdictions.  The kicker here is that it does not apply to GILTI that is already taxed at a high rate offshore and any related foreign tax credits are useless to individuals or corporate taxpayers in an excess foreign tax credit position.  Unintended application of the Subpart F high taxed exception to GILTI is an error until the GILTI proposed regulations containing a GILTI high taxed exception become law.

Consolidated Tax Groups

Consolidated returns for US multinational consolidated corporate tax groups are complicated enough without a GILTI calculation.  When one considers the typical reorganizations, mergers, and acquisitions that regularly occur for most consolidated taxpayers, one can easily see the room for error when the time comes for the GILTI calculation.  Some of the more common consolidated return errors are related to the following:

  • The allocation/sharing of tested losses by “loss CFCs” with “income CFCs” owned by other consolidated group members;
  • The allocation/sharing of the consolidated group’s GILTI attributes to its members;
  • Consolidated group member share basis adjustments (more on that here) via the offsetting of tested income and utilized tested losses; and
  • Nonrecognition transactions between related consolidated group members where “loss CFC stock” is transferred.

Due the inherent complexity here, more can certainly be written especially when one has to address the US tax reporting requirements.  This is certainly an area where experience with consolidated group reporting, international tax, and the GILTI rules is essential to get it right.

GILTI Basis Adjustments

The GILTI basis adjustment rules are rather simple to understand but are very complex in practice.  They require basis adjustments for consolidated group members and any CFC that contributes tested losses to the group.  They are intended to prevent the “double dipping” of tax benefits where a member’s GILTI tested loss is used to reduce a current year consolidated group GILTI income inclusion and then again when the contributing member’s outside tax basis remains high when that group member is sold.  The rule’s required downward basis adjustment which corresponds with the member’s GILTI tested loss ensures the benefit is only taken once.  We’ve written before about this but it remains a complex issue and common error.

State Taxation

This issue is a quagmire especially for multistate taxpayers.  We get many questions here and often have many of our own.  In many cases, GILTI represents the states’ first significant venture into the taxation of international income.  Most state tax systems were not created to accommodate international income and, as such, uncertainly abounds until state legislatures catch up with GILTI.  Often, GILTI is not given a preferential rate and some states will tax GILTI but fail to recognize Foreign Derived Intangible Income (“FDII”) as a proper offset.

For corporate consolidated taxpayers, the state GILTI calculation where the states do not recognize the full current US consolidate tax return regulations are particularly troublesome.  Corporate taxpayers must also be aware of states not recognizing the IRC §250 deduction.  This existing patchwork of state rules is made even more complex when one considers city and other local income taxes.

QBAI Calculation Errors

A CFC’s QBAI is properly calculated as the average of the aggregate of its quarterly adjusted bases in “specified tangible property” used in its trade or business.  It is not simply the year-end balance.  Furthermore, to calculate the proper asset basis for QBAI purposes, you must use an alternative depreciation system, i.e., the straight-line method.  These are both very common mistakes.

Another QBAI error is that specified tangible property, as defined here, means any property used in the production of tested income.  The upstart is that CFCs with tested losses may have a business asset investment but since they do not have tested income and they do not hold any specified tangible property they will not have any QBAI.  Please note that this exception does not apply to specified interest expense that still must be considered even if attached to a CFC with tested losses.  This is especially painful to our investment fund clients with CFC asset related debt and CFC GILTI tested losses.

No Tested Loss Carryforward Provision

The GILTI rules do not permit the IRC §172(a) Net Operating Loss (“NOL”) deduction.  This means that tested losses cannot be carried forward or backward to offset current year tested income.  If a CFC’s foreign taxing jurisdiction permits the carryforward of losses, the CFC’s local country taxable income may be significantly limited or be reduced to zero in the year when a local country NOL carryforward or carryback is used.  This would limit foreign income tax liability while a large balance of GILTI tested income, includible to a US shareholder, remains.  As a result, the amount of foreign tax credit available to offset the GILTI inclusion may be limited which raises the GILTI effective tax rate.

Consideration of Anti-Deferral Provisions

The rule is that a CFC’s gross tested income is its gross income determined without regard to:

  • Effectively connected income;
  • Subpart F income;
  • High-taxed Foreign base company income or insurance income which is taxed at a foreign effective tax rate greater than 90% of the US corporate tax rate;
  • Related party dividends; and
  • Foreign oil and gas extraction income.

The problem is that many taxpayers and practitioners fail to properly test for these items.  This can create a larger problem on audit where a taxpayer may assume that they have a GILTI inclusion that’s taxed at a reduced rate but they actually have a much higher taxed Subpart F inclusion.  The bottom line is that one must still test for all of these items as part of any tested income analysis before the IRS tests for it.

Conclusion

The GILTI rules are certainly complex, wide ranging, and continuing to evolve which creates a near perfect environment for calculation and compliance errors.  This article is by no means an exhaustive list of every potential GILTI error out these but just some of the most common we see.

If you would like our assistance or thoughts on any GILTI analysis, please visit our website at fjvtax.com or reach us by phone at 617-770-7286 or 800-685-2324.

Frank J. Vari, JD, MTax, CPA is the practice leader of FJV Tax which is a CPA firm specializing in complex international and U.S. tax planning.  FJV Tax has offices in Wellesley and Boston.  The author can be reached via email at frank.vari@fjvtax.com or telephone at 617-770-7286/800-685-2324.  You can learn more about FJV Tax at fjvtax.com.

 

 

Payroll Tax Credits Provide Cash Flow Benefits For Technology Start-Ups With Research Activities

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 Frank J. Vari, JD, MTax, CPA

Our practice serves a number of early and mid-stage technology clients and many have significant research and development (“R&D”) activities and expenses but have not generated taxable income either due to tax planning or net operating losses.  Conventional wisdom has been that these companies cannot claim any tax benefits related to their R&D related expenses because they have no taxable income.  However, these same clients often pay significant payroll taxes and they are often unaware that they can reduce their annual payroll taxes, and improve cash flow, by as much as $250,000 per year by taking advantage of the United States (“US”) R&D payroll tax credit.

Let us explain here how we help our qualifying clients claim these important benefits.

As noted, US businesses historically have not been able to use the traditional US R&D income tax credit in tax years where there was no regular US income tax liability.  However, the Protecting Americans from Tax Hikes (“PATH”) Act of 2015 made very favorable changes to the research credit that help mitigate the impact of this limitation.  In particular, PATH allows certain small businesses to offset their alternative minimum tax (“AMT”) or payroll tax liability with a research credit.  As a result, small businesses in an AMT or net operating loss (“NOL”) position that cannot claim the traditional R&D credit can now claim tax and cash flow benefits.

The R&D Credit

The R&D credit was enacted back in 1981 to stimulate US R&D activities by helping businesses offset some of the costs associated with their qualified R&D activities.  Quite basically, a qualified R&D activity expense qualifying for the credit is one where:

  • The expense is incurred in a trade or business which represent R&D costs in the experimental or laboratory sense;
  • The research is technical in nature including bioscience engineering, computer science including software, chemical/polymer design, manufacturing processes, and other similar activities;
  • The research contains aspects of experimentation related to a new or improved design, function, or performance; and
  • The research is intended to result in a new or improved product or business element for the taxpayer.

Today, there is a regular R&D credit and an alternative R&D simplified credit (“ASC”) option to calculate the benefits.  Qualifying businesses can compare the two methods and choose the more favorable one by making an annual election on a timely filed federal return.  Businesses that have not claimed a regular credit in a prior year may make the election on an amended return for that year.

PATH significantly expanded the R&D credit by allowing certain businesses to claim R&D tax benefits in years when they had no regular US income tax liability.  In other words, before 2015, if a business didn’t have US taxable income, there was no way to claim an R&D credit.  Now, the R&D credit can be used to reduce AMT or payroll tax liabilities.

Although AMT liabilities may also be reduced, our discussion here will focus on the payroll tax R&D credit.

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Which Businesses Qualify For Payroll Tax R&D Credits

In order for a business to offset its payroll tax liability with the R&D credit, the taxpayer must be a Qualified Small Business (“QSB”).  A QSB may be a corporation, partnership, or even an individual with gross receipts of less than $5 million for the current tax year and no gross receipts for any tax year preceding the five tax year period ending with the current tax year.

Example:  For the first five years of its existence, Corporation A had gross receipts of $1,000,000, $7,000,000, $4,000,000, $3,000,000, and $4,000,000.  Corporation A is a QSB for year 5 because its gross receipts are less than $5,000,000, even though its gross receipts exceeded the limitation for a prior year.  However, Corporation A is not a QSB in year 6 due to having gross receipts in year 1.

Gross receipts here are reduced by returns and allowances but also include non-sales related items such as interest, dividends, rents, royalties.  These receipts must also be adjusted to account for predecessor entities meaning that past mergers and acquisitions are relevant to this calculation.  One must also adjust for any entities or individuals treated as a single taxpayer meaning that gross receipts must be aggregated for a controlled group of corporations or for trades or businesses under common control.

Claiming Benefits

A QSB may elect to claim the R&D credit against the Old Age, Survivors, and Disability Insurance (“OASDI”) portion of the employer’s Federal Insurance Contributions Act (“FICA”) payroll tax liability for up to five tax years.  The election to claim the payroll R&D credit must be made on a timely filed US tax return including extensions (please note this differs from the regular R&D credit which can be claimed on an amended return).  The election is reported in Section D of Form 6765 as part of the aforementioned return.  Special rules apply for partnerships and S corporations.

The election must indicate the amount of the research credit that the QSB intends to apply to the expected payroll tax liability.  This amount is the smaller of:

  • A $250,000 cap;
  • The amount of the research credit for the tax year (without regard to the election); or
  • The amount of any business credit carryforward under IRC §39 carried from the tax year of the election, without regard to the election, but only for QSBs that are not partnerships or S corporations.

A QSB that files quarterly payroll tax returns may apply the credit on its payroll tax return for the first quarter beginning after it files the federal return appropriately reflecting the election.  For these quarterly payroll taxpayers, a QSB seeking benefits related to 2019 R&D activities that files that timely files their US income tax return by April 15, 2020 will be able to claim these benefits beginning in the second quarter of 2020 but not before.  If the return is extended, then the timing of the benefits extends as well.  Accordingly, a QSB that files annual payroll tax returns may apply the credit on the first quarter beginning after the date on which the business files its US income tax return containing the election.

When filing the payroll tax return, Form 8974, Qualified Small Business Payroll Tax Credit for Increasing Research Activities, must be completed and attached to the payroll tax return to ensure that the amount of the previously elected credit is limited to the employer portion of the Social Security tax for the period.  Any excess may be carried forward pursuant to future periods.  The credit does not reduce the QSB’s deduction for payroll taxes which provides an additional benefit.

Next Steps

The best next steps for any start-up with R&D activities is to take the following steps along with a qualified tax adviser:

  1. Determine qualification as a QSB;
  2. Identify qualifying research activities;
  3. Calculate the amount of the R&D credit and the corresponding payroll tax offset;
  4. Make the appropriate elections and file the requisite income tax and payroll tax forms using the most beneficial methodologies; and
  5. Organize supporting documentation in case of a tax authority examination.

In summary, any tech start-up not claiming these cash flow benefits should be paying attention.

Please let us know how we can help you plan for your tax planning and compliance needs.  Learn more about our business tax practice or our firm by contacting us at FJVTAX.com.

Frank J. Vari, JD, MTax, CPA is the practice leader of FJV Tax which is a CPA firm specializing in complex international and U.S. tax planning.  FJV Tax has offices in Wellesley and Boston.  The author can be reached via email at frank.vari@fjvtax.com or telephone at 617-770-7286/800-685-2324.  You can learn more about FJV Tax at fjvtax.com.

 

The Hidden Passive Foreign Investment Corporation Danger & How To Address It

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The Hidden Passive Foreign Investment Corporation Danger & How To Address It 

 Frank J. Vari, JD, MTax, CPA

Passive Foreign Investment Company (PFIC) is a term that many U.S. taxpayers and practitioners do not understand or recognize but it stands as one of the most significant risk exposures to any US taxpayers with foreign investments of any sort.  Many U.S. taxpayers, primarily individual investors, and practitioners are too quick to conclude that they do not own a PFIC interest.  In our experience, this is because they either don’t understand what a PFIC is or they are daunted by the complicated PFIC rules and reporting requirements.  The common results on audit are unexpected severe tax consequences to unsuspecting and unprepared taxpayers.  When one considers that a PFIC could be anything from a small interest in a foreign corporation to a Bitcoin investment it is easy to see how easy it is to come into contact with the complex and punitive PFIC rules.  This article is intended to provide some basic guidance on the PFIC regime and to address some basic issues.

The PFIC rules were enacted in 1986 as a counterpart to the anti-deferral regime of Subpart F with an intended target of U.S. owners of foreign corporations with primarily passive income or assets.  The PFIC rules, unlike the rules in Subpart F, aim to remove the economic benefit of deferral with respect to any and all U.S. PFIC investors and not just those with significant ownership interests.  Extremely broad and complex, the PFIC rules discourage U.S. taxpayers from investing in PFICs assuming that they can identify whether their foreign investment is a PFIC in the first place.

The PFIC rules are primarily contained within IRC §§1291, 1297, 1298 and related authority.  Primary technical guidance has historically been provided by IRS Notice 88-22 which continues to provide significant guidance to this day.

Generally defined, a PFIC is a foreign corporation that has, during the tax year, at least 75% passive income (“Income Test”) or at least 50% of assets that produce passive income (“Asset Test”).  Passive income is any income that would be Foreign Personal Holding Company Income (“FPHCI”) as defined by the Subpart F provisions in IRC §954(c).  Many conclude that unless the investment is considered a Controlled Foreign Corporation (“CFC) there is no PFIC exposure.  This is an incorrect and false analysis that confuses PFIC with Subpart F.  This is an especially dangerous conclusion when one recognizes that the PFIC rules don’t apply to a CFC after 1997 as part of the PFIC/CFC overlap rule of IRC §1297(d) exempting CFC shareholders from the PFIC regime.

Here for example, are common PFIC investments that we regularly see in our international tax practice.  In any of these or similar situations PFIC testing is required:

Foreign Mutual Funds

The primary investments of a mutual fund are most often passive or generate passive income qualifying the mutual fund itself as a PFIC.

Foreign Holding Companies

Many foreign holding company investments by U.S. shareholders are tailored to avoid CFC rules due to passive share investments.  However, there is often PFIC exposure which often goes untested.  This is a very common PFIC scenario.

Foreign Hedge Funds

Like a mutual fund, a hedge fund is an entity often engaging in passive investment activity.  We work with a number of foreign hedge funds and any U.S. investor in a foreign hedge fund has potential PFIC exposure.

Foreign Trusts

A foreign trust is most often a foreign entity consisting of passive investments generating passive income.  We often see U.S. beneficiaries of foreign trusts, many of which are family trusts established many years ago, that qualify as PFICs and carry significant past tax liabilities with them.

Foreign Bank Accounts

A bank account might also be a PFIC if that account is a money market type investment rather than simply a deposit account as many money market investments are equivalent to fixed income mutual funds.

Foreign Pension Funds

PFIC rules can and do apply to passive investments held inside foreign pension funds unless those pension plans are recognized by the U.S. as “qualified” under the terms of a double-taxation treaty between the U.S. and the host country.

Bitcoin / Cryptocurrency

If cryptocurrency is held in via a foreign fund or it is held via a foreign entity maybe a PFIC investment.  The passive nature of these investments always require PFIC testing.

Learn More About Our International Tax Practice Here

As noted above, the PFIC regime is essentially an anti-deferral regime intended to remove any advantage of income deferral provided by a non-CFC offshore investment.  PFIC taxation falls into three elective categories.  First, income can be currently taxed as a Qualified Electing Fund (“QEF”) under IRC §1293 where a U.S. shareholder elects to have their PFIC income taxed annually.  Second, the IRC §1291 “interest on deferral” regime allows annual U.S. taxes on PFIC income to be deferred but requires the U.S. shareholder to pay any tax plus interest on the deferred PFIC income when the shareholder ultimately receives their PFIC income via distribution or disposition.  Third, there is the IRC §1296 mark-to-market regime where the shareholder recognize gains and losses from marketable stock on an annual basis.  The most common taxing regime chosen is a QEF election if PFIC treatment cannot be avoided altogether.

One notable rule around PFICS is the “once a PFIC always a PFIC” rule.  This rule states that if stock in a foreign investment meets the PFIC definition at any time during the shareholder’s holding period it continues to be treated as a PFIC forever even after it no longer meets the PFIC definition.  This requires a lookback for many taxpayers to see if their investment has been tainted as a PFIC at some point in the past even if it clearly no longer qualifies as a PFIC today.  This is not an uncommon event.

This article is not intended to be and should not be treated as a complete description of the PFIC testing and treatment rules.  There is much more to this regime including complex Foreign Account Tax Compliance Act (FATCA) reporting rules which include filing Form 8621 for each PFIC investment.

The bottom line to any U.S. taxpayer or practitioner who believes that a foreign investment is or was a PFIC should immediately research or seek out an experienced international tax practitioner with PFIC experience to help them navigate and limit their PFIC tax exposure.

Please let us know how we can help you plan for your international investments.  Learn more about our international tax practice or our firm by contacting us at FJVTAX.com.

Frank J. Vari, JD, MTax, CPA is the practice leader of FJV Tax which is a CPA firm specializing in complex international and U.S. tax planning.  FJV Tax has offices in Wellesley and Boston.  The author can be reached via email at frank.vari@fjvtax.com or telephone at 617-770-7286/800-685-2324.  You can learn more about FJV Tax at fjvtax.com.

 

 

How Does the US Tax UK Pension Lump-Sum Payments to US Citizens?

by

Frank J. Vari, JD, MTax, CPA

Our international tax practice gets a large number of questions from United Kingdom (UK) citizens that are also United States (US) citizens and residents regarding their UK pensions.  There are a number of complex issues around both UK private and public pensions that need to be addressed and each question requires separate research and analysis.  Further complicating matters are issues for dual citizens that are trying to navigate not only both US and UK tax laws but also the US/UK Income Tax Treaty.  These are certainly difficult waters to navigate even for experienced tax professionals.

One very common and complex question is the US tax treatment on a 25% lump-sum distribution from a UK pension.  As many know, the UK government will not tax the 25% lump-sum payment as a matter of UK law.  The tricky question is how does the US treat it?

There is a lot of information out there on the internet and much of it is either wrong or misleading.  Many “advisers” claim that the 25% lump-sum payment is tax free both in the US and the UK.  These folks claim that in the UK it is tax exempt by statute/law and that it is also tax free in the US by virtue of the US/UK Tax Treaty.  They advise that the Treaty will allow you to escape US tax on this payment.  Treaty questions are usually rather complex and difficult to understand especially if you’re not used to the language they use meaning things like “savings clause”, etc.  I’ll try to explain below both what we’ve seen and what the rule is on this issue.

One thing that seems to be clear is that all of a US citizen’s income from any source is subject to US tax under IRC §61.  Further, a dual citizen of the US and UK is entitled to rely on the aforementioned tax Treaty between the two countries by virtue of Article 23(2)(A).

The basic position we’ve seen out there is as such:

  • There is a “reciprocal pension exemption” in Article 17(1)(b) that requires the US to respect the UK exemption on the 25% lump-sum payment when paid to a US citizen and resident. This is False.
  • There is something in many tax treaties, including this one, that is called a “savings clause”. Basically, what this says is that if income received by a resident of country #1 is not taxed by county #2, country #1 can tax it.  It almost serves as a soak-up clause to make sure all income is taxed by someone.  This is true and is contained in many income tax treaties.
  • An exemption from a savings clause would mean that income received by a treaty country resident – like a dual citizen of the UK and the US residing in the US – is not taxed on that exempted income in either the UK or US. True if it applies.
  • The position to avoid tax here relies on the Article 1(4) savings clause – citing Article 1(5)(A) – to say that Article 17(1)(B) is not covered by the savings clause meaning, if read in conjunction with the earlier point, that the 25% lump-sum payment is not taxed by the US under Article 17(1)(b) and is exempt from the Treaty’s savings clause. This is false as the savings clause does apply as enumerated below.
  • Stated alternatively, these advisers are saying that the Treaty binds the US to recognize the UK exemption on the 25% payment and the savings clause does not operate to “soak it up” or otherwise tax it. Thus, you escape both US and UK tax on the 25% lump-sum distribution.

There are some big problems with this.  The first is that, if you read the Treaty, this is not what it says.  The second is that the IRS has publicly stated that this is not what the Treaty says.  Please read the latter as the IRS explains its position on this very specific issue.

Please allow me to explain what the Treaty says on this issue:

  • Article 17(1)(B) provides us with a reciprocal pension exemption but not at all in the way described above. Treaty Article 17(1)(B) says no such thing.  Also, Article 17(1)(B) does not address lump-sum payments which are clearly addressed in Article 17(2).
  • Article 17(2), covering lump-sum pension payments like this one, tells us that a lump-sum payment that is tax-free in one state shall also be tax-free when received by a resident of the other state. That’s a great answer if you stop there.
  • The Treaty’s savings clause specifically cites Article 1(5)(A). A reading of that article shows that it exempts Articles 17(3) – dealing with periodic payments of a social security scheme – and 17(5) – dealing with divorce and support payments – from the savings clause.  Article 17(2) – dealing with lump-sum payments – is not mentioned or exempted in any way from the Treaty’s savings clause.
  • As such, the savings clause will require that the lump-sum payment be picked up in the taxpayer’s US tax as neither US tax law nor the US/UK Tax Treaty offers any exemption.

The IRS has specifically said what is clearly in the Treaty:

Article 1(5) of the Treaty provides a number of exceptions to the saving clause, but there is no exception for Article 17(2).  Therefore, the saving clause overrides Article 17(2) and allows the United States to tax a lump-sum payment received by a U.S. resident from a U.K. pension plan.

That is sufficiently clear regarding the US tax authority’s position on the issue.

In summary, a UK 25% lump-sum pension distribution is fully taxable to a US citizen and resident and the US tax authorities have specifically stated that the Treaty language agrees.  Any other position on this issue contradicts the IRS’s position and, quite frankly, has no basis either in US tax law or the Treaty itself.  One taking an alternative position on this issue should be aware that it will likely require a substantive audit defense.  Further, any practitioner taking this position should be mindful of IRS Circular 230’s requirements for tax return positions.

This is surely a complex subject as any Treaty based analysis usually is and any slight change in facts could derive a completely different answer.  Each taxpayer situation is slightly different and that is why an experienced international tax practitioners should always weigh in on these questions.  We do a considerable amount of work in this area and we hope that this note clears up a situation with considerable confusion around it.

Frank J. Vari, JD, MTax, CPA is the practice leader of FJV Tax which is a CPA firm specializing in complex international and U.S. tax planning.  FJV Tax has offices in Wellesley and Boston.  The author can be reached via email at frank.vari@fjvtax.com or telephone at 617-770-7286/800-685-2324.  You can learn more about FJV Tax at fjvtax.com.