向下归因的下行螺旋

The Tax Cuts and Jobs Act (TCJA) created significant changes for both taxpayers and practitioners. One of the most disruptive and wide-ranging changes to taxpayers of TCJA was the repeal of Internal Revenue Code (IRC) Section 958(b)(4), 自1月1日起生效, 2018.

Background

A foreign corporation is treated as a controlled foreign corporation (CFC) to the extent that 更多的 than 50% of the total combined voting power or value of the stock of the corporation is owned directly, 间接, or constructively by “United States shareholders” on any day during the taxable year of the foreign corporation. 在这种情况下, a “United States shareholder” is a US person who owns 10% or 更多的 of the total combined voting power or value of the foreign corporation.

Generally, Section 958(b) requires taxpayers to apply rules of IRC Section 318(a) – i.e.即所谓的“向下归因”规则. 根据这些规则，一个人拥有的股票(如.g., 一个人, (公司)被认为是由某些合伙企业所有, 地产, trusts and corporations in which that person has a certain interest.

之前TCJA, Section 958(b)(4) disallowed “downward attribution” of stock held by a foreign person to a US person. 在废除第958(b)(4)条之后, a domestic corporation may be deemed to constructively own stock of a foreign corporation owned by another foreign corporation, to the extent that certain specified relationships exist between all three. 这, 反过来, may cause the foreign corporation to be treated as a CFC for US tax purposes even though it does not have any direct or indirect United States shareholders.

废除该条例的影响 

Section 958(b)(4) has been repealed by Congress to target transactions that would allow United States shareholders to potentially avoid Subpart F and GILTI inclusions. GILTI，即“全球无形低税收入,” is, roughly, taxable income derived from CFCs by a United States shareholder. 然而, this repeal and the attendant US tax ramifications (summarized below) have created problems for many US taxpayers, 谁投资了国外的结构. 结果是, US taxpayers that were not previously treated as United States shareholders may be treated as United States shareholders. Further, foreign corporations that were not previously treated as CFCs may now be treated as CFCs. 这 is especially problematic for large private equity funds that have investors who own at least 10% of the funds.

构建缓解解决方案

Many taxpayers are hoping for Congress to pass a technical correction bill to correct the unintended consequences of the repeal of Section 958(b)(4). 然而, 直到修正发生, some planning opportunities may help mitigate the unintended consequences due to the repeal of Section 958(b)(4). 在这方面可以考虑的规划机会是

• 复选框选举- i.e., 在这种情况下, a US tax election that allows a foreign corporation to be treated as a disregarded entity for US tax purposes.
• 第962条选举.e., 对美国纳税人个人开放的美国税收选举, that allows him to be taxed as if he were a domestic corporation concerning subpart F and GILTI inclusions, thereby allowing him to be taxed at a lower US corporate income tax rate (as compared to US individual tax rate) for those items.
• 高税例外选举- i.e., a US tax election which allows United States shareholder of a CFC to exclude amounts that would otherwise be treated as GILTI or subpart F from his US taxable income to the extent that the foreign effective tax rate to those amounts exceeds 90% of the top US corporate income tax rate (currently, 18.9%，根据目前21%的企业所得税税率计算)。.

澳门官方老葡京

If you would like to discuss the impact of these rules for you or opportunities to mitigate the impact, 请 澳门官方老葡京.

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