Moving the “Management and Control” of a Foreign Corpration to Achieve Favorable U.S. Tax Results, Part I
There is a multitude of international tax provisions in the Internal Revenue Code (Code) where the U.S. federal income tax consequences of a particular transaction turn on where a foreign corporation is “created or organized.” For example, in the subpart F provisions of the Code,1 dividends or interest received by a controlled foreign corporation (CFC)2 from a related corporation that is created or organized under the laws of the same foreign country in which the CFC is created or organized will not be treated as “foreign personal holding company income” so long as the related corporation has a substantial part of its assets used in its trade or business located in such same foreign country (otherwise known as the “same country” exception).3 This rule applies even if the CFC is “managed and controlled,” and therefore resident in a different jurisdiction from the related foreign corporation. Similarly, a CFC will generate “foreign base company services income” only if, among other things, the income is derived from the performance of services outside of the jurisdiction in which the CFC is created or organized.4
The two parts of this article will examine these and other provisions that essentially allow a taxpayer to form a foreign corporation in a particular jurisdiction and move the management and control of such entity to a more favorable taxing jurisdiction, while at the same time avoiding certain adverse U.S. federal income tax provisions of the Code.
Determination of Corporate Residence
The U.S. federal income tax treatment of a corporation depends on whether the corporation is domestic or foreign. For U.S. federal income tax purposes, a corporation is treated as domestic if it is incorporated under the law of the United States or of any state.5 All other corporations (for example, those incorporated under the laws of foreign countries) are treated as foreign.6
U.S. Taxation of Domestic Corporations
The United States employs a “worldwide” tax system, under which domestic corporations are generally taxed on all income, whether derived in the United States or abroad. To mitigate the potential double taxation that may result from such a system, a foreign tax credit is allowed for income taxes paid to foreign countries, and this reduces or eliminates the U.S. tax liability imposed on foreign-source income, subject to certain limitations.7
In addition to the direct taxation of a domestic corporation, income earned by a domestic parent corporation through foreign corporate subsidiaries is generally not subject to U.S. federal income tax until such time as the profits are repatriated to the United States in the form of a dividend. Certain antideferral regimes, however, may cause the domestic parent corporation to be taxed currently with respect to certain categories of passive or highly mobile income earned by its foreign subsidiaries, regardless of whether any distributions are made. The main antideferral regimes in this context are the CFC rules of subpart F and the passive foreign investment company rules (PFIC).8 For purposes of this article, the primary category of subpart F income is foreign base company income (FBCI),9 which includes foreign personal holding company income (FPHCI), foreign base company sales income (FBC sales income), and foreign base company services income (FBC services income).10
Taxation of Foreign Corporations
Unlike domestic corporations, foreign corporations are generally subject to U.S. federal income taxation on two categories of income: 1) certain passive types of U.S. source income (e.g., interest, dividends, rents, annuities, and other types of “fixed or determinable annual or periodical income,” collectively known as FDAP);11 income that is effectively connected to a U.S. trade or business (ECI).12 FDAP income is subject to a 30 percent withholding tax that is imposed on a foreign person’s gross income (subject to reduction or elimination by an applicable income tax treaty), and ECI is subject to tax on a net basis at the graduated tax rates generally applicable to U.S. persons.13
“Management and Control” in the Non-U.S. Context
Unlike the Code, where the place of incorporation is the sole factor in determining whether a corporation is domestic or foreign, in many foreign jurisdictions, a foreign corporation is considered a “resident” of a particular jurisdiction if that corporation is either incorporated or managed and controlled in that jurisdiction. For example, in both the U.K. and Ireland, a company will be treated as a corporate resident if it is either incorporated in such jurisdiction or its central management and control is situated in that jurisdiction. Similarly, in Spain, a company is considered a Spanish resident if the company is incorporated in Spain, the company’s legal seat is in Spain, or the company’s effective management is in Spain. For this purpose, management and control generally exist in a particular jurisdiction if regular board of directors meetings are held in that jurisdiction.14
A foreign corporation that is created or organized in one jurisdiction but managed and controlled in a second jurisdiction is considered a “dual-resident” corporation. When a dual-resident corporation exists, the place where such corporation is subject to tax generally depends on whether an income tax treaty is in effect between those two foreign jurisdictions. If an income tax treaty does exist between those two jurisdictions, the treaty’s so-called “tie-breaker” provision typically provides that the corporation will be treated as a resident (and therefore taxed) in the jurisdiction where the corporation’s “effective management is situated.”15 If, on the other hand, no such treaty exists, then such a dual-resident corporation may be subject to tax in both jurisdictions (that is, the jurisdiction where it is created or organized and the jurisdiction where the effective management is situated). A similar result would occur if a corporation was formed in the United States but managed and controlled in a foreign jurisdiction (that is, it would become a dual-resident corporation and potentially subject to double taxation).16
Tax Planning Strategies with Moving Management and Control
As noted above, there are a number of provisions in the Code where the U.S. federal income tax consequences of a transaction turns on where a foreign corporation is created or organized. These provisions include §864(d)(7) (the exception to related party factoring income), §954(c)(3) (the same-country exception to FPHCI), §954(e) (FBC services income), and §7874 (the inversion provisions).17 Given that these provisions are focused solely on where a foreign corporation is created or organized, tax planning opportunities may be available by forming a foreign corporation in a particular jurisdiction to comply with the specific Code provision, but moving the management and control of such corporation to a more favorable taxing jurisdiction.
Avoidance of Related Party Factoring Income
The related party factoring income provisions were added to the Code in 1984. Under these rules, if any person acquires (directly or indirectly) a trade or service receivable from a related person, the income derived by such person from acquiring the trade or service receivable will be treated as interest on a loan made to the obligor of the receivable for certain purposes of the Code18 – namely, the foreign tax credit limitation provisions19 and the subpart F provisions.20 For example, assume a U.S. corporation (USP) owns 100 percent of the stock of two foreign corporations (FC1 and FC2), and FC1 sells inventory to an unrelated third party (X) for a $100 note. Assume FC2 acquires the note from FC1 for $95. If FC2 collects $100 on the note from X, the $5 of gain recognized by FC2 is treated as interest income on a loan made by FC2 to X. This interest income is treated as FPHCI subject to current U.S. federal income tax in the hands of USP, regardless of whether FC2 makes any distributions to USP.21
A major exception to this rule, however, exists for any trade or service receivable acquired by a person from a related person if
(i) the person acquiring the receivable and the related person are created or organized under the laws of the same foreign country and such related person has a substantial part of its assets used in its trade or business located in such same foreign country,22 and
(ii) such related person would not have derived any FBCI (determined without regard to the same-country exception) or any ECI, from such receivable if it had been collected by such related person.23
For example, in the fact pattern described above, where USP owns 100 percent of both FC1 and FC2, assume that FC1 is both formed in Spain and managed and controlled in Spain, which currently has a corporate income tax rate of 32.5 percent. Also assume that FC1 is not engaged in a U.S. trade or business and that, if FC1 collected the receivable from X, the gain would not be treated as subpart F income.24 USP is considering forming FC2 in Malta, which has an effective corporate income tax rate of five percent for “trading” income and 10 percent for passive income.25 However, in order to avoid the related party factoring income provisions, USP causes FC2 to be formed in Spain, but also to move its management and control to Malta by appointing a local director and holding regular board of directors’ meetings in such jurisdiction. This causes FC2 to be considered a dual-resident corporation for foreign income tax purposes. Under the treaty tie-breaker provision of the Spain-Malta income tax treaty,26 a dual-resident corporation only will be considered a resident of the jurisdiction where the “effective management is situated,” which in this case would be Malta.
causing FC2 to be formed in Spain, the same jurisdiction where FC1 is formed and conducts its trade or business, the $5 of income derived by FC2 will not be treated as related party factoring income in the hands of FC2. This allows USP to defer paying U.S. federal income tax on the $5 of income until such time as FC2 makes a distribution of such income to USP. This appears to be the result even though FC2 is managed and controlled, and therefore resident in Malta, a jurisdiction that has an effective corporate income tax rate that is approximately 25 percentage points less than the effective corporate income tax rate in Spain. Furthermore, because FC2 is treated as a tax resident of Malta (instead of Spain), under the Spain-Malta treaty-tie breaker provision, Spain will not tax the income earned by FC2 when it collects on the note from X.27 This clearly puts USP and FC2 in a much better position, both from a U.S. and a foreign income tax perspective.
As noted above, one of the primary categories of subpart F income consists of FPHCI. FPHCI includes most forms of passive income, such as dividends, interest, royalties, rents, annuities, and the excess of gains over losses from the sale or exchange of property that gives rise to passive income.28 Significant exclusions from FPHCI, however, are dividends29 and interest30 received from a related person who (A) is a corporation created or organized under the laws of the same foreign country under the laws of which the CFC is created or organized, and (B) has a substantial part of its assets used in its trade or business located in such same foreign country.31
For example, assume a U.S. corporation (USP) owns 100 percent of the stock of FC1, which in turn owns 100 percent of the stock of FC2. FC1 is formed in the U.K. but managed and controlled in Cyprus and, therefore, treated as a resident of Cyprus under the U.K.-Cyprus income tax treaty.32 FC2 is both formed in the U.K. and managed and controlled in the U.K. In order to expand the business operations of FC2 in the U.K., FC1 lends money to FC2 at market rates. Assume the interest paid by FC2 does not reduce FC2’s subpart F income or create (or increase) a deficit in FC2’s earnings and profits (E&P) that may reduce FC2’s subpart F income. The interest paid by FC2 to FC1 will be exempt from subpart F income under the same-country exception. Thus, USP will have the ability to defer paying U.S. federal income tax on this income until such time as it is distributed to USP. These rules should apply regardless of whether FC1 is considered to be a tax resident of Cyprus and, therefore, subject to corporate income tax at a 10 percent rate, as opposed to the 30 percent corporate income tax rate currently in existence in the U.K.33
While planning to take advantage of the same-country exception clearly provides significant tax benefits, the question is whether it makes sense to engage in this type of planning since §954(c)(6) became effective in 2006. Section 954(c)(6) provides that dividends, interest, rents, and royalties received or accrued by a CFC from a CFC which is a related person will not be treated as FPHCI to the extent attributable or properly allocable to income of the related CFC that is neither subpart F income nor ECI. Clearly, §954(c)(6) has several advantages over the same-country exception, especially the fact that it is irrelevant where the related CFCs are created or organized. Furthermore, the same-country exception only applies to dividends that are paid out of E&P that accumulated during the period that the recipient CFC held the stock of the paying CFC. Section 954(c)(6), on the other hand, applies regardless of when the E&P of the distributing CFC was accumulated.34 The key requirement under §954(c)(6) is that the relevant CFCs are related persons at the time the dividend is received.35
The problem with relying on §954(c)(6), however, is that it is currently scheduled to expire at the end of 2008. While there has been a push to make §954(c)(6) permanent,36 as it currently stands, payments made between related CFCs that occur after December 31, 2008, will no longer be eligible for look-through treatment. Therefore, unless the same-country exception applies for payments made after that date, taxpayers will have to rely on the entity classification regulations (which may not always apply)37 to convert the paying CFC into a disregarded entity (that is, branch of the recipient CFC) for U.S. federal income tax purposes, resulting in the payment being disregarded from a U.S. federal income tax perspective as well.
Avoiding FBC Services Income
Another category of subpart F income that focuses on where the CFC is created or organized is FBC services income. In general, FBC services income is any income (whether in the form of compensation, commissions, fees, or otherwise) derived in connection with the performance of technical, managerial, engineering, architectural, scientific, skilled, industrial, commercial, or like services which (A) are performed for or on behalf of any related person, and (B) are performed outside the country under the laws of which the controlled foreign corporation is created or organized.38
For purposes of this provision, “services which are performed for, or on behalf of, a related person” include services performed by a CFC for an unrelated person in a case where “substantial assistance” contributing to the performance of such services has been furnished by a related person or persons.39 According to the IRS, the purpose of the substantial assistance rules is to treat as FBC services income, income received by a CFC from rendering services to an unrelated person where in rendering those services a related person substantially contributes to the CFC’s performance of such services “in a manner that suggests that the CFC, rather than the related party, entered into the contract to obtain a lower rate of tax on the service income.”40
For example, assume a U.S. citizen (UST) decides to relocate to the United Arab Emirates (UAE) to provide investment management services for a hedge fund operating in Dubai. If UST receives the investment management fees directly, those fees will be subject to current U.S. federal income tax at ordinary income rates. Instead, however, UST forms a CFC in the UAE41 and has the CFC contract with the hedge fund with respect to the performance of services. UST also signs an employment contract with the CFC to agree to provide services to clients of the CFC. In this scenario, the income earned by the CFC should not be treated as FBC services income, because the services will not be performed outside the country in which the CFC is created or organized. This should be the result even though UST will provide substantial assistance that will contribute to the performance of such services.
Similar planning may be achieved by moving the management and control of a CFC from the jurisdiction where the services will be performed to a more favorable taxing jurisdiction. For example, instead of relocating to Dubai, assume UST has an opportunity to provide consulting services in Spain for a brief period of time. Rather than receive the consulting services directly, UST forms a CFC in Spain that contracts with various third parties with respect to the consulting services. UST also signs an employment contract with the CFC, agreeing to perform services for clients of the CFC. UST then moves the management and control of the Spanish CFC to Malta by appointing a local director in Malta and holding annual board of directors meetings in Malta.42 Under the Spain-Malta treaty tie-breaker provision, the CFC will be treated as a resident of Malta (and not subject to tax in Spain on the services income, unless the activities in Spain rise to the level of a “permanent establishment”).43 The income derived by the CFC should not be treated as FBC Services Income, because the services will be performed in Spain, the jurisdiction in which the CFC is created or organized, even though the CFC will be treated as a tax resident of Malta under the respective treaty.
In both factual scenarios described above, UST eventually may be able to repatriate the service fees earned abroad to the United States at a 15 percent rate44 under the qualified dividend income provisions, if the ownership of the respective CFC is structured correctly.45 This may be accomplished in one of two manners, either of which should avoid subpart F income: 1) taking advantage of the §954(c)(6) look-through rule; or 2) using tiered entities to take advantage of the same-country exception.
Part two of this article in the November issue will address additional foreign income tax provision planning.
1 Subpart F generally consists of Code §§951-965. All references to “Section” refer to sections of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
2 In general, a CFC is defined as a foreign corporation that is more than 50 percent owned (by vote or value) by U.S. shareholders. Section 957(a).
3 Section 954(c)(3)(A)(i).
4 Section 954(e)(1)(B).
5 Section 7701(a)(4).
6 Section 7701(a)(5).
7 See Section 904.
8 The PFIC regime is contained in §§1291-1298 of the Code. In general, a PFIC is any foreign corporation if 1) 75 percent or more of its gross income for the taxable year is passive income; or 2) the average percentage of assets held by such corporation during the taxable year which produce passive income or which are held for the production of passive income is at least 50 percent. Section 1297(a).
9 Section 952(a)(2).
10 Section 954(a).
11 Section 881(a).
12 Section 882(a). In addition, a foreign corporation with ECI may also be subject to a 30 percent branch profits tax (subject to reduction or elimination under an applicable income tax treaty), to the extent that the profits are not reinvested in a U.S. trade or business. Section 884(a).
13 If a foreign corporation is resident in a treaty jurisdiction, whether such foreign corporation is subject to U.S. federal income tax on its ECI will be subject to a higher threshold. Specifically, a foreign corporation will be subject to U.S. federal income tax only if such income is attributable to a “permanent establishment” in the United States.
14 Other relevant factors in determining where a company’s management and control is located may include 1) the jurisdiction where a local office or address exists, 2) the jurisdiction that maintains a local bank account, and 3) the location where the company’s books and records are maintained. In addition, in certain jurisdictions a company will be considered a resident only if the day-to-day management activities occur in such jurisdiction, which obviously makes it more difficult to engage in the type of planning discussed in this article.
15 See, e.g., Article 4(3) of the U.K.-Spain income tax treaty.
16 Of course, the foreign tax credit provisions generally would provide relief from double taxation. The United States also has special rules for “dual-chartered” entities (i.e., those entities that are treated as formed in more than one jurisdiction). See Treas. Reg. §301.7701-2(b)(9) (treating dual-chartered entities as per se entities under the entity classification regime). Similar to dual-resident companies, dual-chartered entities that are formed in the United States continue to be taxed as domestic corporations.
17 The FBC sales income provisions are also focused on where a CFC is created or organized. Namely, a CFC will generate FBC sales income if the CFC derives income (whether in the form of profits, commissions, fees, or otherwise) in connection with the purchase of personal property from a related person and its sale to any person, the sale of personal property to any person on behalf of a related person, the purchase of personal property from any person and its sale to a related person, or the purchase of personal property from any person on behalf of a related person where (A) the property which is purchased (or in the case of property sold on behalf of a related person, the property which is sold) is manufactured, produced, grown, or extracted outside the country under the laws of which the controlled foreign corporation is created or organized, and (B) the property is sold for use, consumption, or disposition outside such foreign country, or, in the case of property purchased on behalf of a related person, is purchased for use, consumption, or disposition outside such foreign country. Section 954(d) (emphasis added). Because of the existence of the branch rule, however, it is likely that if a CFC is formed in one jurisdiction (a high-tax jurisdiction), but managed and controlled in another jurisdiction (a low-tax jurisdiction), the CFC will be treated as having a branch in the low-tax jurisdiction. Section 954(d)(2). Assuming that is the case, and the low-tax jurisdiction has an effective tax rate that is less than 90 percent of, and 5 percentage points less than, the effective tax rate where the CFC is created or organized, the hypothetical branch may be treated as a separate corporation potentially triggering FBC sales income. See Treas. Reg. §1.954-3(b). As a result, the type of planning discussed in this article may not be practical to avoid FBC sales income.
18 Section 864(d).
19 Section 904. In general, §904 limits a U.S. taxpayer from claiming a foreign tax credit in excess of the amount of foreign source income earned by such taxpayer multiplied by the U.S. federal income tax rate imposed on such income.
20 Sections 951 through 964.
21 Section 954(c)(1). It should be noted that while FPHCI includes “income equivalent to interest,” which consists of “factoring income,” related party factoring income that is characterized as interest under Section 864(d)(1) is excluded from this category of FPHCI. See Treas. Reg. §1.954-2(h)(4)(ii)(A).
22 For purposes of this provision, a substantial part of the assets of the payor will be considered to be used in a trade or business located in the payor’s country of incorporation for a taxable year only if the average value of the payor’s assets for such year that are used in the trade or business and are located in such country equals more than 50 percent of the average value of all assets of the payor (including assets not used in a trade or business). Treas. Reg. §1.954-2(b)(4)(iv); Treas. Reg. §1.864-8T(d)(1).
23 Section 864(d)(7) (emphasis added).
24 See Section 954(c)(1)(B) (which excludes from FPHCI gain from the sale or exchange of any property which, in the hands of the CFC, is property described in Section 1221(a)(1)).
25 While Malta has a corporate income tax rate of 35 percent, under its refund system, “trading income” effectively is taxed at a 5 percent rate and passive income effectively is taxed at a 10 percent rate. Moreover, dividends and capital gains from certain participating holdings are completely exempt from corporate income tax. See Malta Reforms Tax System, 2007 WTD 59-3 (March 23, 2007). In addition, resident but nondomiciled Maltese entities are not taxed on active (i.e., trading) income that is not remitted to Malta (i.e., paid to a Maltese bank account). It is possible that the related party factoring income could be exempt from tax under these rules if not remitted to Malta.
26 Article 4(3) of the Spain-Malta income tax treaty.
27 If FC2 has a permanent establishment in Spain, however, Spain would have the ability to tax the income derived by FC2 if such income is attributable to such permanent establishment. Article 7(1) of the Spain-Malta income tax treaty. It should also be noted that Spain has an antiabuse rule under its local law that potentially can cause a Spanish domiciled entity that is managed and controlled (and therefore resident) in another jurisdiction to be treated as a resident of Spain, if such entity’s main assets and/or activities are located in Spain. Finally, Article 27 (Limitation on Benefits) of the Spain-Malta income tax treaty contains a broad antiabuse provision that needs to be carefully analyzed.
28 Section 954(c)(1).
29 Any dividend with respect to any stock which is attributable to earnings and profits of the distributing corporation accumulated during any period during which the person receiving such dividend did not hold such stock either directly, or indirectly, will not be eligible for the same-country exception. Section 954(c)(3)(C).
30 To the extent the interest payment reduces the payor’s subpart F income or creates (or increases) a deficit which under Section 952(c) may reduce the subpart F income of the payor or another CFC, such payment will not be eligible for the same country exception. Section 954(c)(3)(B).
31 Section 954(c)(3)(A) (emphasis added). For purposes of this provision, a substantial part of the assets of the payor will be considered to be used in a trade or business located in the payor’s country of incorporation for a taxable year only if the average value of the payor’s assets for such year that are used in the trade or business and are located in such country equals more than 50 percent of the average value of all assets of the payor (including assets not used in a trade or business). Treas. Reg. §1.954-2(b)(4)(iv).
32 Article 4(3) of the U.K.-Cyprus income tax treaty.
33 The interest payment also should give rise to a deduction in the U.K. and, under the U.K.-Cyprus income tax treaty, subject to a 10 percent withholding tax, which should be creditable by FC1 under the terms of such treaty. See Articles 12 and 24 of the U.K.-Cyprus income tax treaty.
34 Notice 2007-9, 2007-5 I.R.B. 401.
36 For example, Senate Finance Committee member Jon Kyl, R-Ariz., introduced S. 1273, which would make Section 954(c)(6) permanent. 2007 TNT 122-79.
37 If the paying CFC is a “per se” entity under the entity classification rules, it will not be possible to engage in this type of planning. Treas. Reg. §301.7701-2(b).
38 Section 954(e) (emphasis added).
39 Treas. Reg. §1.954-4(b)(1)(iv).
40 Notice 2007-13, 2007-5 I.R.B. 410. In Notice 2007-13, the IRS indicated that the FBC Services Income regulations will be amended to provide that “substantial assistance” will consist of assistance furnished (directly or indirectly) by a related United States person or persons to the CFC if the assistance satisfies an objective cost test. The cost test will be satisfied if the cost to the CFC of the services furnished by the related United States person or persons equals or exceeds 80 percent of the total cost to the CFC of performing the services. Under these new regulations, taxpayers will no longer have to satisfy the subjective “principal element” test to determine whether substantial assistance has been provided. See Treas. Reg. §1.954-4(b)(2)(ii)(b). In addition, under these new regulations, only a related U.S. person or persons can provide substantial assistance, not related CFCs.
41 There is no corporate income tax in the UAE.
42 Maltese resident companies that are not domiciled (i.e., formed) in Malta are only taxed on active (trading) income that is remitted to Malta (i.e., paid to a Maltese bank account). Thus, it may be possible to avoid Maltese tax by not remitting the service income to Malta.
43 If the CFC is deemed to have a permanent establishment in Spain, any income attributable to such permanent establishment will be taxed in Spain. See Article 7(1) of the Spain-Malta income tax treaty.
44 This structure may be especially useful for investment fund managers who receive a significant portion of their compensation as incentive fees (i.e., “carried interests”), particularly if pending legislation is enacted that would cause such income to be taxed at ordinary income rates instead of long-term capital gain rates. See 2007 TNT 122-1 (6/25/07) for a description of the proposed legislation. This is because the structure allows taxpayers to repatriate service fees at a 15 percent rate under the qualified dividend income provisions, which currently is taxed at the same rate as long-term capital gains. Of course, to take advantage of this planning, the services need to be performed outside of the U.S.
45 Section 1(h)(11). It should be noted that the qualified dividend income provisions are currently scheduled to expire at the end of 2010. It should also be noted that a U.S. taxpayer also may be able to rely on Section 911 to exclude from its gross income a portion of the income earned abroad, if certain conditions are satisfied.
Jeffrey L. Rubinger is a tax partner in the Miami office of McDermott Will and Emery. He received his J.D. from the University of Florida and an L.L.M. in taxation from New York University. Mr. Rubinger is admitted to the Florida and New York bars and is a certified public accountant.
This column is submitted on behalf of the Tax Section, Edward E. Sawyer, chair, and Michael D. Miller and Benjamin A. Jablow, editors.