U.S. Tax Reform Legislative Updates

Transcription

1 U.S. Tax Reform Legislative Updates Fred Gander 12 May 2014

2 Notice ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY KPMG TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials. The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser. 1

3 Agenda 1 U.S. business tax reform drivers 2 Tax reform proposals Past and present 3 Recent legislative proposals 4 How BEPs relates to U.S. international tax reform 5 Wrap-up 2

4 U.S. Business Tax Reform drivers

5 Business Tax Reform drivers The United States has the highest nominal corporate tax rate Current corporate income tax rate is 35% 35% corporate tax rate discourages direct foreign investment and encourages off-shoring But - average effective rate is 27% - roughly the same as the OECD Many U.S. multinationals have effective tax rates below 25%; many U.S. companies that are purely domestic pay the 35% nominal rate Efficiency goal should be to have income taxed at same effective rate no matter the industry or the source 4

6 Business Tax Reform drivers Competitiveness System for taxing non-u.s source income is out of step with the rest of the developed world. No question that U.S. companies may be at a competitive disadvantage in countries with tax rates lower than the U.S. Trade competitors have moved to territorial systems Taxes as a percentage of GDP are 3rd from the bottom in the OECD No question that current system provides an incentive to keep money off-shore Lock-out effect can be cured by taxing off-shore income at U.S. rate currently The Obama Administration believes territoriality leads to domestic job loss and base erosion The Obama Administration concludes that domestic detriment offsets whatever benefit U.S. multinationals could get from territoriality 5

7 U.S. Tax Reform proposals: Past and present

8 U.S. Tax Reform proposals Past and present Overview Chairman Camp s 2011 Proposals (10/11) 25% corporate tax rate Territorial System, 95% exemption Tax passive & mobile earnings President Obama s Framework Proposals (2/12) 28% corporate tax rate Enhance Sec. 199 Min Tax on foreign earnings Follows budget proposals Sen. Enzi Proposals (2/12) 35% corporate tax rate Territorial taxation, 95% exemption CFC reforms Tax foreign IP profits 7

9 U.S. Tax Reform proposals Past and present Overview Senator Baucus s Proposals (11/13) Tax rate not specified Territorial system (Option Y) or current taxation with 40% exemption (Option Z) CFC reforms Obama Administrations 2015 Budget Proposals (_/14) Tax rate not specified Pooled foreign tax credits Defer interest deductions Tax excess IP profits Chairman Camp s 2014 Proposals (2/14) Phased tax rate reduction: 25% rate starting % exemption CFC reforms Thin cap rule for excess U.S. debt. 8

10 U.S. Tax Reform proposals Past and present Common themes Many of the U.S. tax reform proposals released: Anticipate a reduction in the U.S. corporate rate (Camp 25%, Administration Framework 28% (25% for manufacturing), Baucus unspecified) Contemplate a mandatory tax on unrepatriated foreign earnings (Administration has not specifically stated that but has said it would be on the table in the context of overall reform). Contemplate some form of limitation of interest deductions at the corporate level Include significant base erosion provisions (e.g., modify reach of U.S. CFC rules). This should put U.S. based multinationals on notice. Include changing cost recovery to economic depreciation Require capitalization of R&E expenses and part of advertising (Baucus and Camp) 9

11 U.S. Tax Reform proposals Past and present Why consensus is hard of find? Obstacles to revenue-neutral Corporate tax reform Redistribution of tax burden creates winners and losers Revenue-neutrality constraints U.S. vs. foreign Individual vs. business Individual income levels Effect on U.S. manufacturing and small business Absence of agreement on taxation of foreign income: territorial vs. modified worldwide Coordination with individual rates partnerships Transition costs Long-term revenue impact (most tax expenditures are timing provisions) 10

12 Recent U.S. legislative proposals

13 The Administration s FY2015 budget International tax proposals FY2014 budget proposals included in FY2015 budget Defer deduction for interest related to deferred income of foreign subsidiaries Determine foreign tax credit on a pooling basis Tax currently excess returns on intangible property transferred offshore Limit shifting of income through intangible property transfers Disallow deduction for untaxed reinsurance premiums paid to affiliates Modify tax rules for dual capacity taxpayers Tax gain from sale of partnership interests on look-through basis Prevent use of leveraged distributions from related foreign corporations to avoid dividend treatment Extend section 338(h)(16) to asset acquisitions Remove foreign taxes from section 902 corporation s foreign tax pool when earnings are eliminated 12

14 The Administration s FY2015 budget International tax proposals New proposals in FY2015 budget Restrict deductions for excessive interest of members of financial reporting groups New Subpart F category for transactions involving digital goods and services Prevent avoidance of foreign base company sales income through manufacturing service arrangements Restrict use of hybrid arrangements that create stateless income Limit application of Subpart F exceptions to reverse hybrid transactions that create stateless income Limit the ability of domestic entities to expatriate 13

15 Current proposal comparisons 2014 Camp territorial proposal Top marginal tax rate reduced to 25% by 2019, with phased approach: 33% in 2015, 31% in 2016, 29% in 2017, 27% in Territorial System: 95% DRD against foreign-source portion of a dividend received from a foreign corporation. - In case of foreign corporation stock dispositions, basis reduction by amount of DRD, but only for purposes of calculating loss on such stock disposition. - Permanently extend section 954(c)(6) look-through rule for related CFCs. 954(h) active finance exception extended for 5 years for active financing income that is subject to a foreign effective tax rate of 12.5% or higher. FTC Considerations: - Repeal of section 902; - Section 960 credit must be determined on a current-year basis (thus, section 902 pooling approach no longer permissible). - FTC limitation applied by allocating only directly allocable deductions to foreign source income. - Expand passive category to include other mobile income. (Proposed change appears to adopt a lowtax / high-tax approach). Mobile category income would include current-law passive income, foreign base company sales income, and foreign base company intangible income. 14

16 Current proposal comparisons Thin cap rules: 2014 Camp territorial proposal - Denial of interest expense deductions of U.S. shareholders that are members of worldwide affiliated groups with excess domestic indebtedness. Reduces threshold for excess interest expense to 40% of adjusted taxable income. No carryforward for excess limitation. Base Erosion: - Amend section 894 to deny treaty benefits with respect to certain deductible payments made to a related party. - Treat intangible income as Subpart F income. - New U.S. tax deduction incentive for a percentage of foreign intangible income earned directly by U.S. corporation. (When fully phased in, deduction expected to result in a 15% tax rate on income from the foreign exploitation of IP. - New limitations on interest expense deductibility Transition Rules: Subpart F income increased by amount of deferred foreign income for taxable year beginning prior to 1/1/2015. DRDs of 70% and/or 90% calculated based on cash position. 15

17 Current proposal comparisons Other provisions: 2014 Camp territorial proposal - All of a CFC s FBCSI is excluded from Subpart F if the CFC is eligible as a qualified resident for all benefits provided under a comprehensive U.S. income tax treaty. - Subpart F high-tax kick out revised to be mandatory and with significant modifications. FBCI is not Subpart F income unless income subject to less than 25% foreign tax rate (assuming reduction in corporate tax rate fully phased in). FBCSI is not foreign base company income unless income subject to less than a 12.5% foreign tax (assuming reduction in corporate tax fully phased in). FBCII not FBCI unless income subject less than a specified rate calculated on a phased approach. 16

18 Current proposal comparisons Baucus proposal Senate Finance Committee discussion draft Tax rate not specified Option Y proposes territorial system (100% DRD for 10% shareholders); Option Z proposes complete elimination of deferral and provides for a 40% exemption for active foreign market income. - Neither Option Y s DRD nor Option Z s 40% exemption available for 10/50 company dividends. Repeal of section 902 and section 909 splitter rules. Permanent disallowance for interest expense allocated to exempt foreign active income. Base Erosion: Both Option Y and Option Z retain Subpart F regime for certain income types. If enacted, both Options Y and Z would significantly revise application of Subpart F. For example, Baucus Option Y imposes no residual tax on foreign earnings but creates a new category of Subpart F income for low-taxed income. Partial repeal of check-the-box rules Repeal of section 956 Repeal of DCL rules Transition Rules Specifics to be determined. Option Z would repeal current administrative position that positive section 316 E&P is necessary for PTI distributions (i.e., PTI can be distributed even if there is an overall E&P deficit.) Option Z would repeal section 1248 ordinary treatment for CFC stock sales. 17

19 How BEPS relates to U.S. tax reform

20 OECD BEPS action plan How does it relate to U.S. tax reform? The OECD BEPS Action Plan adds weight to the push for legislation as it validates and reinforces the concerns expressed by the Obama Administration, Camp and various others regarding tax planning involving base erosion / profit shifting. U.S. legislators are aware of the OECD BEPS Action Plan. A number of recent U.S. tax reform proposals propose new rules to curtail base erosion and profit shifting to low-tax jurisdictions. Some of these proposals were introduced before publication of the OECD BEPS Action Plan (published on July 19, 2013) while other proposals were introduced after publication. The United States is a very active OECD member. 19

21 Wrap-Up

22 How likely is U.S. international tax reform? International tax changes can still happen even if the U.S. Congress takes no action. This is because: Much of the international tax regime is regulatory; The United States can incorporate new standards / rules into its tax treaty negotiations (e.g., rules concerning hybrid mismatches and conduit financing). Interpretations of rules could change. 21

23 Preparing for U.S. tax reform What should companies do now? Understand the direction of proposed law changes in order to: Assess the impact to the company s ETR and cash tax position Assess the impact of common themes among proposals on existing or potential structures Update key U.S. (e.g., FTC, E&P, and basis) and non-u.s. tax and legal attributes (distributable reserves) Adopt, refresh or continue baseline best practices by focusing on tax planning that: Is sensible under current law in light of business objectives; Allows for flexibility in reacting to international tax reform; and Mitigates the taxpayer s transition cost to a new international tax regime Understand how the OECD BEPS initiative relates to U.S. tax reform. Illustrative best practices E&P deficit/management planning FTC planning Repatriation planning (for example through PTI or internal reorgs) Same country planning 22

24 Contact FRED R. GANDER Washington National Tax, Principal-in-Charge, Europe and Middle East KPMG LLP 15 Canada Square London E14 5GL Tel 44 (0) Fax 44 (0) Cell 44 (0)

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