Subpart F Income- Traps for the Unwary
Under the IRS “Subpart F” rules (26 USC Part III, Subpart F), certain categories of income of controlled foreign corporations (“CFCs”) must be included in the gross income of specified U.S. shareholders, even though the income may not have been distributed.
In this article, we will explain the basics of Subpart F income. It is not intended to constitute tax or legal advice. Subpart F income is an extremely complex area of international tax law and U.S. taxpayers may face significant tax liabilities if they do not have proper tax planning for their CFCs. It is advisable to seek an experienced attorney. Sherayzen Law Office, Ltd. can assist you in all of your tax and legal needs, and help you avoid making costly mistakes.
Subpart F Income
Subpart F income is defined in Internal Revenue Code Section 952 to include numerous categories of income of a CFC. Specifically, it consists of insurance income (as defined in IRC section 953), IRC section 954 “foreign base company income”, income as determined under IRC section 952(a)(3) (amounts subject to the International Boycott rules of IRC section 999), illegal bribes, kickbacks, or other payments unlawful under the Foreign corrupt Practices Act of 1977, and income derived from any foreign country when IRC section 901(j) applies to such country.
Foreign base company income is comprised of the following items: foreign personal holding company income, foreign base company sales income, foreign base company services income, foreign base company shipping income, and foreign base company oil-related income.
Let’s analyze in slightly more detail one of the most common types of subpart F income for U.S. shareholders of a CFC- foreign personal holding company income.
Foreign Personal Holding Company Income
In general, foreign personal holding company income (FPHCI) includes the following items: dividends (or payments in lieu of dividends), rents, royalties, annuities, interest (and income equivalent to interest); net gains from the sale and exchange of certain properties (including gains from the sale or other disposition of any interest in a partnership or trust); gains from commodities transactions; net currency gains from nonfunctional transactions; and income from notional principal contracts.
Certain specific items are excluded from being treated as FPHCI. For example, dividends and interest received may be excluded if they are received from corporations that are related persons and organized in the same country with a substantial part of assets (more than 50 percent) used in its trade or business in that country. Another set of importance exclusions includes: rents and royalties received from unrelated persons in the ordinary conduct of business of the CFC or from related persons for use of property in country of organization; gains from the sale or exchange of inventory; dealer property; property that gives rise to active rent or royalty income; and property that was used in the CFC’s trade or business. In general, exclusions also exist for various insurance and banking business-related activities.
De Minimis Exclusion of Subpart F Income
IRC Section 954 sets forth the de minimis rule for exclusion of Subpart F income. This rule excludes all gross income for the taxable year from being treated as foreign base company income or insurance income if the sum of the CFC’s gross foreign base company income and gross insurance income is less than the lower of 5% of gross income or $1 million. On the other hand, it should be noted that, if the sum of foreign base company income and gross insurance income for the taxable year exceeds 70 percent of gross income, subject to certain provisions, then the entire gross income of the CFC will be treated as foreign base company income or insurance income.
Contact Sherayzen Law Office for Help With Subpart F International Tax Issues
If you own a foreign corporation, you may be subject to Subpart F rules with complex compliance tax issues. These issues are so complex that you should approach them only with an experienced tax professional.
Our international tax firm is highly experienced in dealing with Controlled Foreign Corporations and Subpart F issues. Contact Sherayzen Law Office for professional help with Subpart F tax compliance and tax planning.