The new law moves the United States to a territorial system. It creates a dividend-exemption system for taxing U.S. corporations on the foreign earnings of their foreign subsidiaries when the earnings are distributed. The foreign tax credit rules are modified, as are the Sub-part F rules. The look-through rule for related controlled foreign corporations are made permanent, among other changes. Specifically, repatriation, which is a portion of deferred overseas-held earnings and profits of subsidiaries, will be taxed at a reduced rate of 15.5 percent for case assets and 8 percent for illiquid assets. Foreign tax credit carry forwards will be fully available and foreign tax credits triggered by the deemed repatriation would be partially available to offset the U.S. tax. The lower corporate tax rate may also provide an incentive for businesses to not shift operations overseas in the future. GOP leaders in Congress have signaled that a technical corrections bill may be necessary in 2018 to “fix” drafting mistakes in H.R.1. It is unclear at this time how extensive those technical corrections could be or if they could move under the reconciliation process and not require a super-majority for passage in the Senate.
Morrison Foerster will discuss the prior law, current law, and focus on the following areas:
- Deemed repatriation
- Move to territorial taxation and the participation exemption
- GILTI subpart F inclusion
- GILTI/FDII deductions
- Base Erosion Anti-Abuse Tax (“BEAT”)
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Impact on U.S. subsidiaries of foreign corporations
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