The Tax Cuts and Jobs Act[i] has been called a lot of things by a lot of different people.[ii] Certain provisions of the Act, however, coupled with recently proposed regulations thereunder,[iii] may result in its being known as the legislation that caused many individuals to willingly metamorphose – at least for some tax purposes – into one of the most dispassionate of human creations: the corporation.
The Code has long provided that the term “person” includes a corporation.[iv] That a corporation is treated as a person for tax purposes should not surprise anyone who has even a passing familiarity with the tax law. Indeed, the law in general has been attributing “personal” traits to corporations for decades.[v]
That being said, there are certain instances in the area of “business morphology” in which the Code is ahead of the curve. Take shapeshifting, for example.[vi]
The “check the box” rules allow a business entity that is an “eligible entity”[vii] to change its classification for tax purposes.[viii] Thus, a single member LLC that is otherwise disregarded for tax purposes may elect to be treated as an association taxable as a corporation;[ix] a business entity that is otherwise treated as a partnership is afforded the same option; an association may elect to be treated as a disregarded entity or as a partnership,[x] depending upon how many owners it has.[xi]
What’s more, the Code does not limit its reach to the conversion from one form of business entity to another.
IRC Sec. 962[xii]
Rather, the Code goes one step further by allowing an individual, who is a “U.S. Shareholder” (“USS”)[xiii] with respect to a controlled foreign corporation (“CFC”),[xiv] to elect to treat themselves as a domestic corporation[xv] for the purpose of computing their income tax liability on their pro rata share of the CFC’s “subpart F income.” In other words, the election allows such an individual to determine the tax imposed on such income by applying the income tax rate applicable to a domestic corporation instead of the rate applicable to individuals.
The election also allows the individual USS to claim a tax credit that would otherwise be available only to a USS that is a C-corporation, for purposes of determining their U.S. income tax liability. Specifically, the electing individual is allowed a credit for their share of the CFC’s foreign income taxes attributable to the subpart F income that is included in the individual’s gross income.[xvi]
Of course, like many elections, there is a price to pay when an individual USS elects to be treated as a domestic C-corporation under Sec. 962: the earnings and profits of a CFC that are attributable to the amounts which were included in the individual’s gross income,[xvii] and with respect to which the election was made, will be included in the individual’s gross income a second time when they are actually distributed by the CFC to the individual, to the extent that the earnings and profits distributed exceed the amount of “corporate tax” paid by the individual USS on such earnings and profits; [xviii] the amount distributed is not treated as previously taxed income, which could generally be distributed by the CFC to the USS without adverse tax consequences.
This election was added to the Code over 55 years ago, at the same time that the CFC rules under subpart F were enacted. According to its legislative history, Sec. 962 was enacted to ensure that an individual’s tax burden with respect to a CFC was no greater than it would have been had the individual invested in a domestic corporation that was doing business overseas.[xix]
However, notwithstanding its long tenure, this obscure provision has played a relatively minor role in the lives of individual USS of CFCs – until now.
The “Waxing” of the Act
Prior to the Act, a domestic corporation’s income tax liability was determined based on a graduated rate, with a maximum rate of 35 percent; an individual’s income tax was also determined based on a graduated rate, with a maximum rate of 39.6 percent.
The Act replaced the graduated corporate tax rate structure with a flat rate of 21 percent – a 40 percent reduction in the maximum corporate income tax rate. The maximum individual income tax rate was reduced to 37 percent; in other words, the flat corporate rate is now more than 43 percent lower than the maximum individual rate.
The significant reduction in the corporate tax rate relative to the individual rate is likely enough of an incentive, by itself, to cause some individual USS to elect to be treated as a domestic corporation under Sec. 962.
The changes wrought by the Act, however, went farther. In order to appreciate the impact of these changes, a quick review of the pre-Act regime for the taxation of CFCs and their USS is in order.
U.S. Taxation of CFC Income
As most readers probably know, the U.S. taxes U.S. persons on all of their income, whether derived in the U.S. or abroad. Thus, all U.S. citizens and residents,[xx] as well as domestic entities,[xxi] must include their worldwide income in their gross income for purposes of determining their U.S. income tax liability.
In general, the foreign-source income earned by a U.S. person from their direct conduct of a foreign business – for example, through the operation of a branch[xxii] or of a partnership in a foreign jurisdiction – is taxed on a current basis.[xxiii]
Prior to the Act, however, most foreign-source income that was earned by a U.S. person indirectly – as a shareholder of a foreign corporation[xxiv] that operated a business overseas – was not taxed to the U.S. person on a current basis. Instead, this foreign business income generally was not subject to U.S. tax until the foreign corporation distributed the income as a dividend to the U.S. person.
That being said, pre-Act law included certain anti-deferral regimes that would cause the U.S. person to be taxed on a current basis on certain categories of income earned by a foreign corporation, regardless of whether such income had been distributed as a dividend to the U.S. owner. The main anti-deferral regime was found in the CFC rules.
In general, a CFC is defined as any foreign corporation more than 50 percent of the stock of which is owned by U.S. persons, taking into account only those U.S. persons who own at least 10 percent of such stock.
Under these rules, the U.S. generally taxed the USS of a CFC on their pro rata shares of certain income of the CFC (“subpart F income”), without regard to whether the income was distributed to the shareholders. In effect, the U.S. treated the USS of a CFC as having received a current distribution of the corporation’s subpart F income.
When such previously included income was actually distributed to an individual USS, the latter excluded the distribution from their gross income.
With exceptions, subpart F income generally included passive income and other income that was considered readily movable from one taxing jurisdiction to another. For example, it included “foreign base company income,” which consists of “foreign personal holding company income” – basically, passive income such as dividends, interest, rents, and royalties – and a number of categories of income from business operations; the latter included “foreign base company sales income,” which was derived from transactions that involved the CFC and a related person, where the CFC’s activities were conducted outside the jurisdiction in which the CFC was organized.
Any foreign-source income earned by a CFC that was not subpart F income, and that was not distributed by the CFC to a U.S. person as a dividend, was not required to be included in the gross income of any U.S. person who owned shares of stock in the CFC; in other words, the recognition of such income for purposes of the U.S. income tax continued to be deferred.
In order to limit a U.S. person’s ability to defer the U.S. taxation of a CFC’s non-subpart F, foreign-source income, the Act introduced a new class of income – “global intangible low-taxed income” (“GILTI”) – that must be included in income by a USS of a CFC.[xxv]
This provision generally requires the current inclusion in income by a USS of (i) their share of all of a CFC’s non-subpart F income, (ii) less an amount equal to the USS’s share of 10 percent of the adjusted basis of the CFC’s tangible property used in its trade or business of a type with respect to which a depreciation deduction is generally allowable[xxvi] – the difference being the USS’s GILTI.
This income inclusion rule applies to both individual and corporate USS.
In the case of an individual USS, the maximum federal income tax rate applicable to GILTI is 37 percent.[xxvii] This is the rate that will apply, for example, to a U.S. individual who directly owns at least 10 percent of the stock of a CFC, or to one who indirectly owns such CFC stock through an S-corporation or partnership.
More forgiving rules apply in the case of a USS that is a domestic corporation. For taxable years beginning after December 31, 2017, and before January 1, 2026, a domestic corporation is generally allowed a deduction of an amount equal to 50 percent of its GILTI (the “50-percent deduction”) for purposes of determining its taxable income;[xxviii] thus, the federal corporate tax rate for GILTI is actually 10.5 percent.[xxix]
In addition, for any amount of GILTI included in the gross income of a domestic corporation, the corporation is allowed a deemed-paid credit equal to 80 percent of the foreign taxes paid or accrued by the CFC with respect to such GILTI (“80-percent FTC”).[xxx]
Based on the interaction of the “50-percent deduction” and the 80-percent FTC, the U.S. tax rate on GILTI that is included in the income of a domestic C-corporation will be zero where the foreign tax rate on such income is at least 13.125 percent.[xxxi]
Because an S corporation’s taxable income is computed in the same manner as an individual, and because an S corporation is treated as a partnership for purposes of the CFC rules, neither the “50-percent deduction” nor the 80-percent FTC apply to S corporations or their shareholders. Thus, an individual USS is treated more harshly by the GILTI inclusion rules than is a USS that is a C-corporation.
Use a C-Corporation?
So what is an individual USS to do? Whether they own stock of a CFC directly, or through an S-corporation or partnership, how should they respond to the GILTI rules’ pro-C-corporation bias?
One option is to contribute the CFC shares to a domestic C-corporation; if the CFC is held through an S-corporation, the S-corporation may itself convert into a C-corporation.[xxxii]
However, C-corporation status has its own significant issues, and should not be undertaken lightly; for example, double taxation of the corporation’s income, though this may be less of a concern where the corporation plans to reinvest its profits. That being said, the double taxation regime applicable to C-corporations may be especially burdensome on the disposition of the corporation’s business as a sale of assets.
Another option is for the S-corporation to effectively liquidate its CFC and operate in the foreign jurisdiction through a branch, or through an “eligible” foreign entity for which a “check-the-box election” may be made to disregard the entity for tax purposes.
This would avoid the CFC and GITLI rules entirely, and it would allow the shareholders of the S-corporation to claim a credit for foreign taxes paid by the branch.
Of course, operating through a branch would preclude what little U.S. tax deferral is still available following the enactment of the GILTI rules, and could subject the U.S. person to a branch profits tax in the foreign jurisdiction.
It should also be noted that the liquidation or reorganization of a CFC into a branch will generally be a taxable event, with the result that the accumulated foreign earnings and profits of the CFC will be included in the income of the USS as a “deemed dividend.”[xxxiii]
Elect Under Sec. 962?
Yet another option to consider is the election under Sec. 962 – yes, we have come full-circle.
As indicated earlier, this election is available to an individual who is a USS of a CFC, either directly or through an S-corporation or a partnership.[xxxiv]
The election, which is made on annual basis,[xxxv] results in the individual USS being treated as a domestic corporation (a C-corporation) for purposes of determining the income tax on their share of GILTI and subpart F income for the taxable year to which the election relates; thus, the electing individual USS’s share of such income would be taxed at the flat 21 percent corporate tax rate.
The election also causes the individual USS to be treated as a domestic corporation for purposes of claiming the 80-percent FTC attributable to this income; thus, the USS would be allowed this credit.
However, as indicated above, once the election is made, the earnings and profits of the CFC that are attributable to the amounts which were included in the income of the USS under the GILTI or CFC rules, and with respect to which a Sec. 962 election was made, will be included in the USS’s gross income when such earnings are actually distributed to the USS (reduced by the amount of “corporate” tax paid on the amounts to which such election applied).[xxxvi]
The Recently Proposed Sec. 962 Regulations
Following the reduction of the corporate tax rate and the enactment of the GILTI rules, many tax practitioners turned to the Sec. 962 election as a way to manage and reduce the tax liability of individual USS of CFCs.
In the course of familiarizing themselves with the election and its consequences, many tax practitioners wondered whether the “50-percent deduction” available to domestic corporations would also be available to an electing individual USS. After all, Sec. 962 states that the electing individual would be treated as a domestic corporation for purposes of determining the tax on their subpart F income[xxxvii] – and by extension, thanks to the Act, the tax on their GILTI[xxxviii] – and for purposes of applying the foreign tax credit rules.
Neither the Act nor its committee reports nor the first round of proposed regulations[xxxix] addressed whether the “50-percent deduction” – which is available only to domestic corporations[xl] – would be available to an individual USS who makes the Sec. 962 election.
The preamble to the Proposed Regulations, however, echoed Sec. 962’s legislative history when it explained that Sec. 962 was enacted to ensure that individuals’ tax burdens with respect to undistributed foreign earnings of their CFCs are comparable to their tax burdens if they had held their CFCs through a domestic corporation. According to the IRS, allowing the “50-percent deduction” with respect to the GILTI of an individual (including one who is a shareholder of an S-corporation or a partner in a partnership) who makes a Sec. 962 election provides comparable treatment for this income.[xli]
Thus, the IRS decided to give individual USS the “50-percent deduction” with respect to their GILTI if they made the Sec. 962 election.
The Proposed Regulations are proposed to apply to taxable years of a CFC ending on or after March 4, 2019, and with respect to a U.S. person, for the taxable year in which or with which such taxable year of the CFC ends.
The IRS went a step further by stating that taxpayers may rely on the Proposed Regulations for taxable years ending before May 4, 2019. In other words, an individual USS who elected under Sec. 962 with respect to their taxable year ending December 31, 2018[xlii] may take the “50-percent deduction” into account in determining their taxable income for that year.
There are a number of individual USS who have not yet decided how they will respond to the federal income tax on GILTI. No doubt, many of these individuals have been waiting to see whether the IRS would address the application of the “50-percent deduction” in the context of a Sec. 962 election.
In light of the proposed regulations described above, and the assurance provided therein that an individual USS may rely on them for the 2018 taxable year, these patient individuals[xliii] may now file an election under Sec. 962 secure in the knowledge that their GILTI will be taxed at the 21 percent corporate tax rate, that they will be entitled to the 80-percent FTC, and that they may claim the “50-percent deduction,” in determining their taxable income.
The Sec. 962 election for the taxable year ending December 31, 2018 must be made with the individual USS’s timely filed federal income return for 2018, on Form 1040, which is due on April 15, 2019.[xliv] The election is made by filing a statement to such effect with this tax return.
But what about the individual USS who believed, not unreasonably, that the IRS was unlikely to allow them the “50-percent deduction,” and who consequently decided to contribute their CFC to a newly-formed domestic corporation?
If the domestic “blocker” corporation was formed and funded by the USS with CFC stock in 2019, it may still be possible to rescind or unwind the transaction, and restore the CFC to the individual USS, in time to make a Sec. 962 election for 2018.[xlv]
For those individual USS who formed domestic blocker corporations to hold their CFC stock during 2018, the unwinding of this structure may not be a straightforward proposition.[xlvi]
[i] P.L. 115-97 (the “Act”).
[ii] Where you stand depends on where you sit? “Miles Law,” for you political science folks out there.
[iv] IRC Sec. 7701(a)(1).
[v] Including First Amendment rights. See the decision of the U.S. Supreme Court in Citizens United.
[vi] Stay with me. Don’t stop reading yet.
[vii] One that is not treated per se as a corporation.
[viii] Reg. Sec. 301.7701-3. The business entity would normally file Form 8832 to effect this change; however, if it elects to be treated as an S corporation by filing a Form 2553, it will also be treated as having chosen to be treated as an association for tax purposes. The consequences of its deemed association status are significant: if the entity loses its “S” status, it will not revert to partnership status, for example; rather, it will become a C corporation for tax purposes.
[ix] Each of these “conversions” would be treated as a transaction described in IRC Sec. 351.
[x] I.e., it may elect to liquidate – a taxable event. IRC Sec. 331 and 336.
[xi] N.B. There are limits on how often an entity may check the box; i.e., revoke an election, then make another one.
[xiii] IRC Sec. 951. One who owns at least 10 percent of the total voting power or total value of all classes of stock of a foreign corporation.
[xiv] IRC Sec. 957.
[xv] A regular U.S. C-corporation.
[xvi] IRC Sec. 960.
[xvii] Whether as subpart F income or as GILTI – see below.
[xviii] As would be the case when a C corporation distributes its after-tax profits to its shareholders.
If the CFC was formed in a jurisdiction with which the U.S. does not have a tax treaty, this dividend will be taxed as ordinary income, taxable at a rate of 37 percent. If the CFC resides in a treaty country, the dividend will be treated as a qualified dividend, taxable at a rate of 20 percent. IRC Sec. 1(h).
[xix] S. Rept. 1881, 87th Cong., 2d Sess., 1962-2 C.B. 784, at 798.
[xx] Noncitizens who are lawfully admitted as permanent residents of the U.S. in accordance with immigration laws (often referred to as “green card holders”) are treated as residents for tax purposes. In addition, noncitizens who meet a “substantial presence” test, and are not otherwise exempt from U.S. taxation, are also taxable as U.S. residents.
[xxi] A corporation or partnership is treated as domestic if it is organized or created under the laws of the United States or of any State.
[xxii] Including an eligible entity that has elected to be treated as a disregarded entity for tax purposes. Reg. Sec. 301.7701-3.
[xxiii] Subject to certain limitations, U.S. citizens, resident individuals, and domestic corporations are allowed to claim a credit against their U.S. income tax liability for foreign income taxes they pay.
[xxiv] A separate legal entity.
[xxv] IRC Sec. 951A.
[xxvi] A deemed “reasonable return.”
[xxvii] The highest rate applicable to individuals.
[xxix] The 21 percent flat rate multiplied by 50 percent.
[xxx] IRC Sec. 960(d). This is to be compared with the foreign tax credit available to a domestic corporation that includes subpart F income in its gross income; in that case, under IRC Sec. 960(a), the domestic corporation is deemed to have paid so much of the CFC’s foreign income taxes as are properly attributable to such subpart F income.
[xxxi] 13.125 percent multiplied by 80 percent equals 10.5 percent.
[xxxii] Beware the IRC Sec. 965 installment payment rules.
[xxxiii] That being said, the rules for determining such accumulated earnings and profits generally exclude amounts previously included in the gross income of the USS under the CFC rules. To the extent any amount is not so excluded, the S corporation shareholder of the CFC will not be able to utilize the DRD to reduce its tax liability.
[xxxiv] In order for an individual shareholder of an S corporation of a partnership to make the election, they must own at least 10 percent of the CFC stock through their holdings in the S corporation or partnership. For example, a 25 percent shareholder of an S corporation that owns 80 percent of a CFC is deemed to own 20 percent of the CFC.
[xxxv] The election is made year-by-year. Compare this to using an actual C-corporation, which is difficult to eliminate once it is in place.
[xxxvi] This is to be contrasted with the 100 percent dividends received deduction for the foreign-source portion of dividends received from a CFC by a USS that is a domestic corporation. IRC Sec. 245A.
[xxxvii] IRC Sec. 951.
[xxxviii] IRC Sec. 951A.
[xl] IRC Sec. 250.
[xli] The preamble goes on to state that the IRS considered not allowing the “50-percent deduction” to individuals that make the election. In that case, it continued, an individual USS would have to transfer their CFC stock to a domestic corporation in order to obtain the benefit of the deduction. Such a reorganization, the preamble concluded, would be economically costly.
[xlii] The first year to which the GILTI rules apply.
[xliii] Some might say procrastinating.
[xliv] Four days shy of a full moon. An automatic 6-month extension is available if timely requested.
[xlv] See, e.g., Rev. Rul. 80-58. Of course, this assumes that there was no other bona fide business purpose for the domestic corporation.
[xlvi] The contribution to the blocker may have accelerated any installment payments under IRC Sec. 965(h).