Citing aggressive taxpayer positions, recently proposed regulations do away with the foreign goodwill exception to gain or income recognition for outbound transfers under Section 367. The rules also restrict the type of property eligible for the active business exception.
Reasons for Change
Per the preamble, taxpayers interpret Section 367 and the regulations in one of two ways when claiming favorable treatment of foreign goodwill and going concern value. One interpretation argues that goodwill and going concern value are not IP within the meaning of Section 936(h)(3)(B) and thus not subject [...]Read more
The Treasury issued the new Notice 2015-79 to beef up the anti-inversion section 7874. It contains three rules applicable to deals closing after the Notice and two rules that are retroactive to the 2014 Notice’s effective date. Those two rules increase the potential taxability of post-inversion restructurings. The three prospective rules are the most surprising and potentially harmful to taxpayers seeking to invert. They all relate to the use of holding company structures, which are common in cross border tax planning.
Holding company structure rules:
If the foreign acquiring corporation [...]Read more
If you go by what Yogi Berra says, tax policy and baseball have a lot in common. Just as we head toward the end of the regular season of baseball and hope we make it to play-offs, Congress is doing the same. Having returned from the August recess, they are looking ahead at what they need to do to finish strong. As for déjà vu, the atmosphere surrounding expired tax provisions is markedly similar to what it was last year around this time. Will the result be different this year? Maybe. Let’s take a look at the issues and what’s happened so far.
Discussions of tax reform have [...]Read more
On September 14, 2015, the government released Notice 2015-59 and Rev. Proc. 2015-43, both relating to Section 355 spinoffs. They respond to government concerns about spinoff transactions that result in the distributing corporation or the controlled corporation owning a substantial amount of cash, portfolio stock or securities, or other investment assets, in relation to the value of all of its assets and its qualifying business assets. In the Notice, the government states that it has become aware, in part through private letter ruling requests, that these transactions may present evidence of device [...]Read more
Beginning with foreign bank account reports (FinCEN Form 114, known as the FBAR) for the 2016 calendar year, FBARs will be due on April 15 of the following year. A six-month extension to October 15 will be available upon request.
FBARs of U.S. citizens and residents living abroad will be due on June 15 – with an additional four-month extension available to October 15. No additional two-month extension to December 15 will be allowed, however, as is permitted for the tax returns of U.S. persons living abroad.
These changes were part of the Surface Transportation and Veterans Health Care Choice [...]Read more
This month’s federal tax advisory discusses the recent U.S. Tax Court decision, Webber, that limits the extent a life insurance policy owner can direct the policy’s investments. Our Federal Tax Group looks into what the ruling means for practitioners facing this difficult issue.
On July 22, 2015, Delaware Governor Jack Markell signed into law a significant piece of unclaimed property reform legislation, S.B. 141. Alston & Bird issued an advisory on June 23 analyzing the changes brought about by the bill. Our advisory is available here: www.alston.com/advisories/serious-property-reform.
To summarize, S.B. 141 will do the following:
Make permanent the Secretary of State's voluntary disclosure program.
Require the Department of Finance to provide holders with the opportunity to enter into the Secretary of State's VDA program before being subjected to [...]Read more
In June, the IRS and U.S. Treasury released final regulations under the anti-inversion provisions of Section 7874 (T.D. 9720). The final rules, effective for acquisitions completed on or after June 3, 2015, include a few changes from the regulations proposed in 2012. Most notably, the final rules retain the 25 percent bright-line tests for whether an expanded affiliated group (EAG) has “substantial business activities” in a foreign country for the purpose of determining whether the foreign parent of an inverted corporation will be treated as a “surrogate foreign corporation.” The controversial [...]Read more
In Notice 2015-10 (the “Notice”), the IRS announced that it and the Treasury will issue regulations to limit credits or refunds for withholding taxes under Chapter 3 (Sections 1441-1443) and Chapter 4 (Sections 1471-1472, aka FATCA) to the amount actually deposited by withholding agents. The hope is that this “deposit limitation” will lessen the Treasury’s financial risk of crediting or refunding more tax, based on Form 1042-S reporting, than it collects or can collect.
The Notice previews regulatory amendments to provide that a credit or refund for withheld tax is available only [...]Read more