Updates & Developments Ron Mazurik, Senior Tax Manager Alon Sherer, Senior Tax Manager
Agenda Recent Legislation Recent Cases Proposed Legislation Points for Attention State Tax Developments 2
Recent Tax Legislation Medicare Tax From 2013 up to 3.8% Medicare tax Applies only to U.S. citizens / tax residents Applies to Net Investment Income and QDI of U.S. high income earners (>US$ 200k) Illustration of Tax Rates Applicable to Long Term Capital Gains: 20% Federal + 3.8% Medicare tax + ~7.8% State tax (NY) 31.8% 20% Federal + 3.8% Medicare tax 23.8% Israel 25%/30% Generally creditable against Israeli tax (but Israeli tax is not creditable against the 3.8% Medicare tax) 3
Treaty Qualification for Qualified Dividend Income (QDI) Purposes Qualified Dividends received by U.S. citizen / resident are eligible under certain conditions for a reduced tax rate (currently 15/20% + Medicare tax 3.8%) In case of a foreign company, QDI treatment applies only if either: - Publicly traded; or - Good treaty resident IRS recently published a ruling agreeing to apply QDI to dividends from a Cyprus company where facts indicated that the Cyprus company s establishment was not driven by treaty benefits. Note: LOB under other treaties(including Israel) is much less relaxed than the Cyprus treaty! 4
Subpart F Income Subpart F Income = Ordinary Income - Tax Court recently confirmed that so-called Subpart F Income inclusions are treated for U.S. tax purposes as Ordinary Income - Result - marginal rates apply - no QDI treatment Income inclusion under Subpart F U.S. Citizen / Resident Interest Foreign Subsidiary Certain Sales Income Dividends Certain Service Income 5
Recent Cases Classification of Income Sergio Garcia The Golfer Case Characterization by Garcia (a Swiss resident): 15% personal services (ordinary tax rates), 85% royalties (no withholding under the U.S.- Swiss Treaty) Court 35% personal services, 65% royalties Sale / License classification should be considered (exclusivity, restrictions on use, etc)! Services? Payments Royalties 6
Recent Cases Step Transaction Doctrine & Economic Substance STARS Transaction (BB&T) Barnes Group Case Repatriation of cash was held to be a dividend Application of Inter-dependence Test of the Step Transaction Doctrine Barnes (US) $ Singapore U.S. $ Bermuda $ 7
Recent Cases Creditable Windfall Profits Tax PPL Case Special tax imposed by the U.K. government (Windfall Profits Tax) is creditable for U.S. tax purposes, even though it is technically levied on a gross basis! U.S. / Israel Treaty creditability of Profit Tax under the VAT regime. Creditable Windfall Profits Deemed Sale price Purchase price 8
Recent Cases Transfer Pricing - Secondary Adjustments BMC Software Case Secondary Adjustment due to Transfer Pricing compliance might have adverse implications TP Adjustment Royalties Israel IP Secondary TP Adjustment U.S. 9
Legislation (Pending & Proposed) Transparency and Fairness Initiatives 1) Dodd Frank Act U.S. (currently in legislation process) Oil, gas and mining (Extractive Industries) Listed companies (SEC) Disclosure of payments to governments by project (e.g. royalties, dividends, etc.) 2) Stop Tax Haven Abuse Act 2013 - U.S. (proposed legislation) Senator Levin Applicable to SEC registrants Public disclosure of taxes paid per legal entity 3) Other major transparency initiatives worldwide BEPS Action Plan (by OECD) 10
Recent Tax Legislation IRC Section 304 - Anti-abuse Regulations Re-characterization of sales transactions between related corporations as a redemption of stock => often treated as equivalent to a dividend distribution Intended as an anti-abuse provision but often serves as a powerful planning tool! Potential abuse: Israel Positive Earnings and Profits (E&P) No E&P Subsidiary #1 (U.S.) New Co (U.S.) sale Distribution (dividend) Subsidiary #2 (U.S.) No E&P Subsidiary #2 (U.S.) 11
Points for Attention Transfer Pricing Considerations Deferred Revenue Stock Option Compensation Alternative #1: Distribution Functions Israel Alternative #2: Services Stock Options Customer Cash U.S. Employees / Executives 12
Points for Attention FBAR Electronic filing FATCA update New IDR Increase audit to partnerships 13
www.pwc.com State Tax Developments
State Tax Developments Amazon Law - Sales Tax 15
Trends Click-Through Nexus Amazon Law Overstock.com vs. New York Department of Taxation & Finance - New York Appeals Court upheld Amazon decision Solicitation vs. advertising? Roughly 20 states have proposed similar type laws, so NY s ultimate decision can have a significant impact U.S.Tax Seminar 16
Trends Higher Rates, Higher Burden Sales Tax Rate Increase The city rate increased from 1.68 percent to 1.75 percent. The county rate rose from 1.15 percent to 1.245 percent. The state rate went from 5.48 percent to 5.615 percent. Marketplace Fairness Act Sales tax collection requirement for remote (i.e. out of state) sellers Major impact on internet sales Passed by Senate, awaiting House review 17
Sales and Use Tax Technical Aspects: Acquisitions Stock Purchase Generally, the term tangible personal property shall not include stocks, bonds, notes, insurance or other obligations or securities. Asset Purchase - Sales and use tax is imposed on the retail sale of tangible personal property and certain enumerated services. 338(h)(10) election Florida, New York, Virginia, Wisconsin are the only states to date which have explicitly exempted the transaction from tax 18
Income Tax Trends - Market-Based Sourcing WA AK CA* OR NV ID UT AZ HI MT WY CO NM ND SD NE KS OK TX MN IA MO AR LA WI IL MS IN MI TN AL KY OH GA WV SC FL PA VA NC NY VT NH DC C T NJ DE ME MA Benefit Received Services Received Services Delivered Other States are gradually moving towards market-based sourcing Double Taxation 19
Popular State Tax Credits New Hire Credits California, New Jersey, New York, North Carolina Investments in qualified property New Jersey, New York, North Carolina R&D Credits Massachusetts, New Jersey, New York Enterprise Zone Credits California, New York, North Carolina 20
State of the States Proposed Legislation Business Activity Tax Simplification Act of 2013 Expand definition of Public Law 86-272 Protected activities would include services (currently only tangible property is covered) Restrictions would be expanded to include business activity taxes (currently only net income taxes are included) 21
Points of Attention Points to consider when determining PE vs. nexus: State adoption of U.S. income tax treaties Worldwide Income vs. Water s-edge Income Example: Co. ABC domiciled in Israel holds inventory on consignment in NY Israel Co. Israel Co. Federal Tax Effectively Connected Income NY/NYC Tax Worldwide Income 22
Local Taxes to Consider Many companies overlook taxes imposed by local jurisdictions as well as other non-income based (i.e. transaction taxes): New York City Commercial Rent Tax (tax on rented office space in Manhattan) San Francisco Gross Receipts Tax (replacing the city payroll tax which is being phased out beginning in 2014) City Income Taxes in Ohio (several hundred taxing jurisdictions), Kentucky, Michigan, and Oregon Use Tax due on purchases made from companies which are not required to charge sales tax 23
Tips & Considerations Be prepared for audits! Sales Tax compliance (reseller/exemption certificates on file) Minimize franchise taxes! Par-Value Capital Method allowed for Delaware Franchise Tax (gross assets-based instead of authorized shares) Avoid worldwide profits from being taxed in California! Does Israel Co. generate revenues from sales to U.S.? Israeli Co. may not have nexus in the U.S. but it might be taxable in California if all of its sales are to the U.S. 24
Scope and Limitations The information contained in this presentation is for general guidance on matters of interest only. As such, it should not be used as a substitute for consultation with professional tax advisors. This document was not intended or written to be used, and it cannot be used, for the purpose of avoiding any U.S. federal, state or local tax penalties. Circular 230: this document was not intended or written to be used, and it cannot be used, for the purpose of avoiding U.S. federal, state or local tax penalties that may be imposed on the taxpayer. 25
Thank you! Ron Mazurik, Senior Tax Manager, Israel 03-7954471 Ron.mazurik@il.pwc.com Alon Sherer, Senior Tax Manager, Israel 03-7954520 Alon.sherer@il.pwc.com firms provide industry-focused assurance, tax and advisory services to enhance value for their clients. More than 162,000 people in 154 countries in firms across the network share their thinking, experience and solutions to develop fresh perspectives and practical advice. See www.pwc.com for more information. is the brand under which member firms of PricewaterhouseCoopers International Limited (IL) operate and provide services. Together, these firms form the network. Each firm in the network is a separate legal entity and does not act as agent of IL or any other member firm. IL does not provide any services to clients. IL is not responsible or liable for the acts or omissions of any of its member firms nor can it control the exercise of their professional judgment or bind them in any way. This publication has been prepared for general guidance on matters of interest only,and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Kesselman & Kesselman, its members, employees and agents do not accept or assume any liability,responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it. 2013 Kesselman & Kesselman. All rights reserved. In this document, Israel refers to Kesselman & Kesselman, which is a member firm of PricewaterhouseCoopers International Limited, each member firm of which is a separate legal entity.