Notes

Gilti Tax For Owners Of Foreign Companies
Under the GILTI rules though, certain C corporation US shareholders can deduct 50% of their GILTI, which halves the effective corporate tax rate to 10.5%. In addition, they can claim foreign tax credits, lowering the US federal income tax due even further.

Given the potential for lost tested losses, taxpayers should assess their transfer pricing and accounting methods for federal income tax purposes. Shareholders of a CFC can reduce their GILTI by 50 percent under new Section 250 of the Code, and claim a credit of up to 80 percent of the foreign taxes paid or accrued by the CFC on the GILTI. As a result, the GILTI rules generally impose a U.S. corporate minimum tax of 10.5 percent (50% x 21%) and to the extent foreign tax credits are available to reduce the US corporate tax, may result in no additional U.S. federal income tax being due.

This treatment under the Proposed Regulations will result in individual US taxpayers who choose to make the 962 election seeing a decrease in US taxation of their GILTI inclusion amounts from 37 percent down to 10.5 percent, also subject to further reduction by applicable foreign tax credits. These individuals should now stand on more equal footing with corporate US shareholders, able to defer taxation at individual tax rates until a later date when distributions are made from the CFC. While the GILTI rules subject more CFC income to what is essentially a minimum overall rate of tax for US shareholders, this rate was offset for corporate taxpayers by a 50 percent deduction permitted under section 250 of the Code. Furthermore, corporate taxpayers are able to offset the GILTI tax with foreign tax credits under section 960 of the Code . If the income of the CFC is subject to an effective foreign tax rate of at least 13.125 percent, the corporate US taxpayer would consequently owe no US tax on the GILTI amount.

Shareholders to elect to be taxed as a C-Corporation on “Subpart F income”, another form of “deemed dividend” income from a CFC. A taxpayer making this election is taxed at the corporate income tax rate on that foreign income and is eligible for the “deemed paid” indirect foreign tax credit on the foreign income. However, unlike a C-Corporation, when the foreign income is distributed to the individual making that election, the amount of that distribution that exceeds the tax paid by the individual at the time of making the election is taxed again to the individual at his individual income tax rates .

The election allows the shareholder to compute the tax credit like a corporation, and to use a flat 21% tax rate, but it does not allow the shareholder to use any deductions against the GILTI inclusion. That’s why the 50% deduction allowed to corporations under §250 cannot be used by an individual US Shareholder, even if a §962 election is made. In the simplified example above, the $10 of GILTI would be taxed at 21% for a tax of $2.10. Note that the extra $0.30 is lost (as is the difference between actual foreign tax and the 80% allowed as a credit).

U.S. corporate shareholders may claim an indirect foreign tax credit under Sec. 960 for 80% of the foreign tax paid by the shareholders' CFCs that is allocable to GILTI income. The allocable amount of foreign taxes paid is calculated by multiplying an "inclusion percentage" by the foreign income taxes paid that are attributable to the GILTI inclusion. Available GILTI foreign tax credits have their own separate foreign tax credit "basket," which means they can be used only against GILTI and not other foreign income.

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.

Extending this treatment to CFCs and their U.S. shareholders is fair and equitable. Absent such treatment, if a U.S. shareholder of a CFC has a tested loss of $100 in year 1 and tested income of $100 in year 2, the U.S. shareholder receives no benefit from the year 1 loss. While the U.S. shareholder has not recognized a cumulative economic benefit, the shareholder may still have a GILTI inclusion and pay U.S. tax on the inclusion.

Under Sec. 962, individuals can make an election to pay tax on Subpart F income at corporate rates (and claim indirect foreign tax credits under Sec. 962). Although the 2018 proposed regulations contained needed guidance on several aspects of the GILTI regime, absent from the proposed rules was any general exception from GILTI for high-taxed income.

Critical to the tax impact of GILTI is the disparate treatment between corporate and individual taxpayers. C corporations are generally entitled to a Section 250 deduction for GILTI and the Section 78 gross up attributable to the GILTI inclusion and also an indirect foreign tax credit for certain foreign income taxes paid or accrued by the CFC subject to foreign tax credit limitation rules. Absent a Section 962 election, individual U.S. shareholders aren't eligible for these benefits, resulting in a much higher tax impact on individuals than on corporate entities. Individuals, including partners in partnerships and shareholders in S corporations, must include their pro-rata share of GILTI income on their individual income tax returns.

U.S. domestic corporation shareholders will be able to take a 50 percent deduction on their GILTI amount in and are entitled to an 80 percent deemed foreign tax credit. The effective rate on a corporate entity is therefore 10.5 percent before the foreign tax credit. https://iwtas.com/blog/ Taking into account the 80 percent indirect foreign tax credit, having an effective foreign tax rate that is at least 13.125 percent on GILTI income would mean that a U.S. corporation would owe no U.S. taxes on GILTI. Foreign Tax Credit Limitation – A foreign tax credit may be claimed by a corporate taxpayer for 80% of certain foreign income taxes paid by a CFC.

This GILTI income is subject to ordinary federal income tax rates as high as 37 percent. Individuals are not entitled to the special 50 percent deduction or deemed paid foreign tax credits. Thus, the tax consequences associated with GILTI inclusions to individuals are more severe than similar inclusions to C corporations. A U.S. individual shareholder generally may not claim a foreign tax credit for the CFC’s foreign corporate income taxes paid when reporting GILTI on the U.S. federal tax return. However, a U.S. individual shareholder may file an election to mitigate the impact of the U.S. federal tax on the GILTI.

foreign trust The proposed rules provide that the determination of whether income is eligible for the election is made on a QBU-by-QBU basis, rather than at the CFC-level or by evaluating individual items of income. More specifically, the determination is made separately with respect to all of the income that otherwise would be gross tested income that falls within a single section 904 category and that is attributable to a single QBU. For purposes of determining the QBU’s foreign effective tax rate, the FTC rules would apply to determine the taxes allocated and apportioned to the QBU’s income.

The above-mentioned new IRS proposed regulations, issued March 6th, also allow an individual who has made the 962 election to take a deduction of 50% of the GILTI when computing the tax on the GILTI! 3Therefore, most individuals who make the 962 election will use a 10.5% U.S. tax rate on the GILTI (50% of 21%). Thus, if the CFC is subject to foreign income tax of at least 13.125%, most individual shareholders could have minimal GILTI tax, or none at all.

When a U.S. individual makes a §962 election, he or she will be subject to tax on their GILTI income at the 21-percent corporate rate and will also be eligible for the 80 percent indirect foreign tax credit mentioned above. When earnings are actually distributed from the foreign corporate entity, the taxpayer will again be subject to tax on the earnings less the U.S. taxes paid (as though a U.S. corporation were reducing its earnings & profits by the tax expense). By contrast, individuals and trusts are not allowed to take the 50 percent deduction or an indirect foreign tax credit. Since GILTI income is also treated as ordinary income, individuals and trusts are subject to a maximum 37 percent U.S. tax rate on GILTI income with no credit for taxes paid at the foreign corporate level.

They’re also taxed at 37%, compared with the 21% corporate tax rate, and while 80% of foreign tax is available to C corporations as a credit against GILTI income, individuals and pass-through entities can only claim credits for direct taxes they pay such as withholding taxes. In a major change from the proposed regulations, the final regulations issued in late June 2019 did not adopt this hybrid approach and instead move toward a simpler partner level approach.

The Treasury and the IRS also issued new proposed regulations under IRC Sections 951 and 951A which includes an election that would apply a high-tax exception to GILTI when the tax imposed on a tentative net tested income item exceeds an 18.9% corporate tax rate. The applicability of the high-tax exception would be tested at the level of a single qualified business unit and would apply to all CFCs controlled by the same domestic shareholders. However, in the current form the Proposed GILTI high-tax exception cannot be relied on.

A distribution of the GILTI previously taxed earnings and profits is taxed to the U.S. shareholder as a dividend. However, the taxable amount of the dividend distribution is decreased by the U.S. tax paid on the GILTI based on the mechanics of the IRC section 962 election. These regulations impact the planning options for many individual US taxpayers owning non-US closely held businesses. The Proposed Regulations arrive on the heels of months of speculation as to whether the US Treasury would act to address the perceived unfair impact of the GILTI provisions on individual US taxpayers. Subpart F requires U.S. shareholders of a controlled foreign corporation to take into current income their pro rata share of Subpart F income.

Typically, the Section 962 election is not economically beneficial unless the foreign income is subject to a high rate of foreign tax . In the context of GILTI, it is unclear as of today whether an individual making the election would be entitled to the 50% GILTI deduction that a C-Corporation receives, so that the economic consequences of a Section 962 election for GILTI income are uncertain.

The last part of this calculation is to limit the foreign tax paid or accrued by 80% resulting in a net foreign tax credit of $41,364 which can be used to offset the GILTI tax. The above example uses a 5 percent tax rate which results in a balance due of $54,186 from GILTI in addition to tax the US parent corporation owes from their US operations. One alternative for the individual shareholder to consider is referred to as the “962 election”2, which refers to Section 962 of the U.S. The 962 election allows the individual shareholder to be taxed on the GILTI at the U.S. federal corporate tax rate of 21%, rather than federal individual tax rates up to 37%. The election also permits the individual shareholder to take a personal foreign tax credit to reduce his/her personal U.S. income tax by part of the non-U.S.

However, because the calculation aggregates all foreign income taxes, foreign taxes paid by one CFC on GILTI may be used to offset GILTI earned by another CFC. Foreign taxes paid on income excluded from tested income, such as Subpart F income, cannot be used as a credit for taxes due on GILTI. Except as discussed below, a U.S. corporate shareholder likely has no U.S. residual tax on GILTI inclusions, provided the effective foreign rate of tax was at least 13.125%. For federal purposes, all U.S. shareholders must include as U.S. income the shareholder’s GILTI under section 951A of the IRC.

GILTI is included in U.S. income based on the shareholder’s ownership interest in any CFC in which the U.S. shareholder owns shares. A CFC is any foreign corporation 50% or more of which is owned by U.S. shareholders. GILTI is the excess of the shareholder’s net CFC tested income over the shareholder’s net deemed tangible income return for the year. Corporations which are taxed as such are generally eligible for a deduction equal to 50% of GILTI for federal purposes under section 250 of the IRC. Beginning in tax year 2019 GILTI is included in calculating individual and fiduciary income taxpayers’ Iowa income.

The election also allows a 50% deduction of the taxable GILTI under IRC section 250. Based on the election, the U.S. individual is subject to the U.S. tax on the GILTI at the 21% U.S. federal corporate tax rate instead of the U.S. federal individual tax rate. The combined benefits of the election with the 50% deduction, the lower U.S. corporate tax rate, and the foreign tax credit make the CFC ownership structure more tax efficient for a U.S. individual shareholder. The tradeoff is the IRC section 78 gross up requirement and the U.S. tax on the actual distribution of the earnings that were subject to the U.S. tax on the GILTI. The gross up increases the taxable GILTI amount by the creditable foreign tax.

The percentage deduction permitted is scheduled to be reduced in 2026, when the minimum GILTI rate for corporate taxpayers will increase to 13.125 percent. However, any amount subject to adequate foreign tax at the CFC level may continue to be fully offset by foreign tax credits. The §962 election sounds like it might allow an individual US Shareholder to compute the tax on GILTI as if they were a corporation.

The statute expressly excludes from a CFC’s tested income the CFC’s high-tax income that is excluded from subpart F “by reason of section 954”—namely foreign base company income (“FBCI”) and insurance income that is subject to an effective tax rate greater than 90% of the U.S. corporate tax rate. Given legislative history promising that “at foreign tax rates greater than or equal to 13.125 percent, there is no residual U.S. tax owed on GILTI,” taxpayers and practitioners were surprised that the statute contained no general exception from GILTI for high-taxed income. The 2018 proposed regulations, similarly, offered no generalized high-tax exception from GILTI.

When Subpart F was enacted, the top federal tax rate for corporations was 52% while individuals were taxed at rates as high as 91% and could not take advantage of indirect foreign tax credits available to corporations. With these facts in mind, Congress adopted Sec. 962 to ensure that individuals' tax burdens with respect to undistributed foreign earnings of their CFCs would be no heavier than if the individuals had instead invested in an American corporation doing business abroad.

The IRC section 962 election allows a U.S. individual shareholder of a CFC to achieve the same level of parity with a U.S. corporation taxpayer. With the election, a U.S. individual is able to claim a foreign tax credit for the CFC’s foreign corporate tax to offset the U.S. federal tax on the GILTI.

The GILTI rules do not permit the IRC §172 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.

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. Where the US shareholder is a US domestic corporation, the US corporation may deduct an amount equal to 50% of the GILTI income inclusion when computing income. The problem with these rules is that these two provisions do not apply if the US shareholder is a US individual. For the US individual shareholder, there will be a GILTI inclusion and only the normal foreign tax credit provisions will apply. The aggregate foreign taxes paid or accrued on the tested income is $125,000 ($2,500,000 x 5%) which multiplied by the inclusion percentage results in net foreign tax paid or accrued by the CFC of $51,705.

If the NOL completely wipes out taxable income, GILTI will eat into the NOL dollar for dollar—no 50 percent reduction. While losing the NOL may not trigger any immediate cash taxes, it would eat up the benefit from sheltering future income at a 21 percent tax rate. So where a domestic corporation has an NOL it will otherwise use, GILTI will effectively cost tax at a 21 percent rate—not the anticipated 10.5 percent, or less where the CFC has sufficient foreign tax credits to eliminate the tax.

For example, suppose a US corporation is the sole shareholder of a foreign corporation with a manufacturing plant in Ireland, which has a 12.5 percent tax rate. Suppose the plant cost $100 million to construct, and the foreign income is $30 million . The corporation would calculate GILTI of $20 million (total foreign income minus 10 percent of $100 million of depreciable assets). The US tax on GILTI would be $2.1 million before credits for foreign taxes (half of the $20 million of GILTI times the 21 percent corporate tax rate), and the net US tax after credits would be $0.1 million ($2.1 million−$2 million credit for Irish taxes).

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 – and by extension, thanks to the Act, the tax on their GILTI – and for purposes of applying the foreign tax credit rules. The §962 election effectively interposes a theoretical U.S. corporation between the U.S. individual or trust and the CFC.

The carry-forward rules for foreign tax credits do not apply to foreign tax credits on GILTI. ) confirmed that a CFC must compute its tested income or tested loss as if it were a domestic corporation. However, it is not clear whether, or how, a tested loss carryover can be used for GILTI purposes.

Application of the deduction and the tax credits will generally eliminate the U.S. tax owed on the U.S. corporate shareholder's GILTI if the tested income is subject to an effective foreign income tax rate above 13.125%, for tax years before 2026, and 16.406% thereafter. 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.

In practice, the calculations are much more complicated, as US corporations may have multiple operations abroad—and how to properly allocate expenses among them is unclear. The Section 962 election is a long-standing provision that allows individual U.S.

More forgiving rules apply in the case of a U.S. shareholder that is a domestic C corporation. Such a 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; thus, the effective federal corporate tax rate for GILTI is actually 10.5 percent. Where a domestic corporation has an NOL carryforward, the GILTI deduction under Internal Revenue Code Section 250 is limited to 50 percent of taxable income after the NOL.

Step 5 determines the tentative GILTI tax by multiplying the relevant tax rate and the U.S. shareholder’s GILTI inclusion amount. Corporate U.S. shareholders are entitled to a Section 250 deduction, which permits a deduction equal to 50% (37.5% after 2025) of its GILTI inclusion amount. Since the corporate tax rate is 21%, the effective U.S. federal income tax rate on GILTI is 10.5% before the FTC. This tentative GILTI tax could be reduced by the deemed paid FTCs determined under the GILTI rules.

Also note that GILTI income is its own basket for FTC purposes and no carryover is permitted from excess GILTI FTCs. So having GILTI when in a loss position in the U.S. can have a significant cost to a domestic corporation.

To the contrary, the 2018 GILTI proposed regulations clarified that the GILTI high-tax exclusion applied only to income that is excluded from FBCI and insurance income solely by reason of an election made to exclude the income under the high-tax exception of section 954 and Reg. An option to address this disparity already existed prior to the introduction of the Proposed Regulations, in the form of an election under section 962 of the Code. This election permits individual US shareholders of a CFC to elect to be taxed at corporate income tax rates on the Subpart F income and GILTI inclusions of the CFC. The section 962 election also allowed foreign tax credits to be applied on foreign taxes paid by the CFC with respect to the Subpart F and GILTI amounts.

Three years+ business or tax firm experience at mid-level within the organization, preparing complex tax forms and schedules. U.S. shareholders who are domestic - C corporations are eligible for up to an 80 percent deemed paid foreign tax credit and a 50 percent deduction of the current year inclusion plus the full amount of the Section 78 gross-up . However, the same problem that will confront individuals, including shareholders of S corporations and partners/members of other PTEs, for federal income tax purposes with respect to GILTI will also confront them for state personal income tax purposes. 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.

This means that for certain U.S. shareholders, the GILTI tax liability could be reduced to zero. In the case of individual shareholders (or more technically, non-C corporation shareholders), however, the effective rate imposed on GILTI is potentially much higher. The reason for this is that individuals are not entitled to deduct 50 percent of their GILTI, and cannot generally claim a credit for the foreign taxes paid or accrued by the CFC on GILTI . The latter rule falls in line with the general tax principle that individuals cannot claim tax credits for foreign taxes paid or accrued by their foreign subsidiaries (so-called “indirect” tax credits).

As a result, individuals can be subject to U.S. federal tax on GILTI at a 37 percent rate plus any foreign taxes imposed on the CFC’s GILTI . The disadvantages for non-C corporations include the fact that they can’t deduct 50% of their GILTI income, under IRC Section 250.
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