On April 2nd, the IRS and US Treasury issued more guidance on the US Transition Tax enacted by the Tax Cuts and Jobs Act (“TCJA”) in December 2017. As the US moves to a territorial tax system for profits earned outside the US, this provision assesses a tax rate on accumulated earnings and profits in specific non-US corporations owned by certain US corporations and US individuals. Our previous blog entries explaining the tax and IRS/US Treasury updates can be found at the two links below:
As the April 17th filing and payment deadline approaches for both US individuals and corporations with calendar year ends, IRS Notice 2018-26 provides a welcome update to assist taxpayers and professionals to comply with the law. Its 43 pages provided:
- limited relief for US partners of limited partnerships owning interests in non-US corporations. The repeal of Internal Revenue Code Section 958(b)(4) in TCJA removed exemptions for attribution of ownership of certain non-US corporations, resulting in more US taxpayers being subject to US Transition Tax than may have been anticipated by lawmakers. The guidance’s relief is limited to partners owning less than a 5% interest in a partnership;
- clarity that an individual US taxpayer can make an election under Internal Revenue Code Section 962 to be treated as a corporation for purposes of determining their liability to US Transition tax;
- comfort that the US Transition Tax won’t also increase a taxpayer’s obligation to pay increased 2018 and future years estimated tax payments or face interest and penalties. Generally, taxpayers can base their future years estimated tax payments on their US tax liability excluding any US Transition tax liability without interest or penalty;
- confirmation that taxpayers outside the US that would normally have until June 15th to file a US federal income tax return will still have the same deadline to file their US tax return, make any desired elections for US Transition Tax and pay the first instalment due. Previous comments suggested that all taxpayers had only until their original tax filing deadline without extension to comply with US Transition Tax requirements;
- direction that foreign income tax liabilities can accrue to November 2, 2017, the first testing date. Commentators were concerned that since income taxes don’t accrue until the end of the fiscal year that one could not accrue income tax liabilities to a date mid-year, resulting in higher Earnings and Profits and potentially higher US Transition Tax liability. The Guidance corrects this and effectively treats accrued foreign income taxes as a reduction of Earnings and Profits at both November 2 and December 31 testing dates.
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