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GILTI and FDII

August 26, 2021

The concepts of Global Intangible Low-Taxed Income (“GILTI”) and Foreign-Derived Intangible Income (“FDII”) were introduced with the Tax Cuts and Jobs Act (“TCJA”) of 2017. We have received several inquiries on those regulations, so in this newsletter, we made a summary of the acts as below. Although they may appear lengthy, this is considered a “brief” summary of the lengthy and complex regulations.


Further to note, President Biden has a plan to change GILTI and FDII to increase the tax burden for the taxpayers with foreign operations. We made a brief note of his plans.


Global Intangible Low-Taxed Income


Under the TCJA of 2017, beginning the tax year 2018, U.S. shareholders are subject to tax on GILTI received from a controlled foreign corporation (“CFC”). In general, GILTI is income that is earned abroad by CFC and is subject to special treatment under the U.S. Internal Revenue Code (“IRC”) section 951A. GILTI calculation is discussed in the below section. GILTI was designed to discourage corporations from keeping their intangible assets in low-tax countries.


Definitions:


  • U.S. shareholder is any U.S. person that owns (directly, indirectly, or constructively) at least 10% of a foreign corporation’s voting stock or 10% of a foreign corporation’s value.

  • U.S. person includes U.S. citizens, U.S. residents, U.S. C-corporation, S-corporation, partnerships formed in the U.S., estates taxable in the U.S., and non-foreign trust.

  • CFC is a foreign corporation with U.S. shareholders who cumulatively own more than 50% of the stock (vote or value) on any day during a taxable year.


GILTI tax is imposed on a U.S. 10% shareholder’s pro-rata share of a CFC’s intangible income when it is earned, even though it may not actually be distributed and may not actually be income from intangibles. The term “intangible income” is defined broadly for GILTI purposes.


Example 1: A foreign corporation with a U.S. shareholder who owns 10% of its voting stock, and the remaining voting stock is owned by non-U.S. persons. This foreign corporation is not a CFC because cumulative ownership of U.S. shareholders is not more than 50%. Therefore, the U.S. shareholder is not subject to GILTI.


Example 2: U.S. person A owns 5% of a foreign corporation FC’s voting stock, U.S. person B owns 10% of FC’s voting stock, U.S. person C owns 40% of FC’s voting stock, and a foreign person owns 45% of FC’s voting stock. In this scenario, only U.S. persons B and C are considered U.S. shareholders because they own 10% or more of FC’s voting stock. However, since cumulative ownership of all U.S. shareholders (B% and C%, or 10% + 40% = 50%) of the FC’s voting stock is NOT more than 50%, this FC is not a CFC. Therefore, all U.S. persons A, B, and C are not subject to GILTI.


Example 3: U.S. person A owns 5% of a foreign corporation FC’s voting stock, U.S. person B owns 10% of FC’s voting stock, U.S. person C owns 45% of FC’s voting stock, and a foreign person owns 40% of FC’s voting stock. In this scenario, only U.S. persons B and C are considered U.S. shareholders because they own 10% or more of FC’s voting stock. Since cumulative ownership of all U.S. shareholders (B% and C%, or 10% + 45% = 55%) of the FC’s voting stock is more than 50%, this FC is a CFC. Therefore, U.S. persons B and C are subject to GILTI, while U.S. person A is not subject to GILTI because U.S. person A is not a U.S. shareholder.


While IRC section 951A requires the company to include income of the CFC, IRC section 250 provides a GILTI standard deduction to reduce the tax burden for the U.S. corporation. In general, the section 250 deduction excludes 50% of the company’s GILTI. Starting in 2026, section 250 GILTI exclusion reduces from 50% to 37.5%.


GILTI Calculation


The calculation can be complicated when determining the CFC’s earnings and profit allocated to the company. In simple form, GILTI calculation starts from net income of the CFC, prorated and allocated to U.S. company based on voting stock percentage, then reduced by 10% of the CFC’s qualified business asset investment (“QBAI”) (investment in machinery, equipment, and buildings). Any remaining income is considered as net tested income or GILTI income inclusion. 50% of net tested income is excluded under the section 250 deduction. The remaining 50% of net tested income is taxed at the current federal corporate income tax rate of 21%. Thus, overall, current GILTI effective tax rate is 10.5% (or 21% x 50%).


Foreign Tax Credit


Under IRC section 960(d), domestic C corporations can claim up to 80% foreign tax credit (“FTC”) against GILTI tax. In general, the higher the foreign tax paid by CFC, the less GILTI tax incurred for the U.S. corporation. The credit is not available to individuals or pass-through entities unless they make an IRC section 962 election. Section 962 election allows individuals or pass-through entities to have their GILTI or repatriation income taxed at corporate rates and to apply the FTC available to corporate shareholders.


Impact of President Biden’s tax plan:

· Section 250 GILTI exclusion reduces from 50% to 25%

· 10% of QBAI exemption is eliminated

· Federal corporate income tax rate increases from 21% to 28%.

· Overall, Biden’s GILTI effective tax rate is 21% (or 28% x 75%)


In addition, GILTI is currently calculated based on profits, losses, and taxes in all foreign countries combined; however, under President Biden’s tax plan, GILTI is calculated based on profits, losses, and taxes in each individual country. For U.S. shareholder who owns CFCs in multiple countries, the U.S. shareholder can be taxed under GILTI for having a profitable operation in one country even if the U.S. shareholder had an overall loss in worldwide operations.


Foreign-Derived Intangible Income


IRC section 250 also allows U.S. corporations to claim a 37.5% deduction (reduced to 21.875% for the tax year 2026 and after) from FDII, effective for taxable years beginning after December 31, 2017.


FDII is income derived from services or the sale, lease, licensing, exchange, or other disposition of property to any foreign nonrelated person for foreign use.


Exception for sales of property to a foreign-related person that the sales can be treated as foreign sales and qualified for FDII deduction:

  • Property is sold to a foreign-related party, then, the property is sold to a foreign nonrelated party, and

  • The property is for foreign use

Limitation: FDII is limited up to taxable income before FDII deduction. The FDII amount is reduced (or phased out) by the excess if any.


Under President Biden’s tax plan, FDII deduction is eliminated.


State Tax Impact


In general, states do not deal much with foreign income, however, in regard to GILTI and FDII, while most states, including California, do not conform to Federal tax provisions for GILTI and FDII, many states take an aggressive approach and fully conform, some partially conform, and others only conform to the GILTI treatment and not conform to FDII deduction.


Conclusion


For U.S. corporations that have operations in multiple states and countries, the coming changes to tax laws, if any, under President Biden’s tax plan will not only increase income tax burden at the federal level but also at the state level. Owners, investors, and management should be well informed in making important business decisions in multistate and multinational operations.