Category Archives: International – Corporate Tax Planning

Cryptocurrencies and Investment Funds – Tax Uncertainty Abounds

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The IRS has announced its intent to beef up enforcement efforts against tax noncompliance relating to transactions in cryptocurrencies. Despite this effort, various tax aspects of cryptocurrency transactions remain uncertain. Our International Tax and Blockchain & Distributed Ledger groups team up to explain how this uncertainty affects cryptocurrency funds. Cryptocurrencies are treated as property, not currency, for tax purposes (but the certainty largely ends there) Can cryptocurrencies and their derivatives qualify as commodities for tax purposes? Read the full advisory here. [...]Read more

PATH Act Brings FIRPTA Changes

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The Protecting Americans from Tax Hikes Act of 2015 (the “PATH Act”), signed December 18, 2015, introduces significant changes to the Foreign Investment in Real Property Tax Act (FIRPTA), particularly concerning REITs. The reforms are generally intended to make foreign investment in U.S. real estate more attractive, though some revenue-raising measures are thrown in the mix. Among the PATH Act's taxpayer-friendly FIRPTA updates: The ownership threshold for foreign “portfolio investors” in publicly traded REITs increases from 5% to 10%. These investors are exempt from FIRPTA tax [...]Read more

Proposed Sec. 367 Regs Say Goodbye to Goodwill Exception

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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

Second Inversion Notice

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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

Déjà Vu All Over Again – The Recurring Saga of Expiring Tax Provisions

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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

Final Anti-Inversion Regulations Keep Strict 25 Percent Tests for Substantial Business Activities

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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

IRS Private Letter Ruling Holds that Pass-Through Interests in Mortgages Can Qualify as Registered Form Obligations

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In late January, the IRS issued a private letter ruling (P.L.R. 201504004) dealing with whether interests in a non-grantor trust and a partnership are considered to be in registered form, a precursor to qualification for payments thereon to the portfolio interest exemption. Although the ruling answers in the affirmative, it does not ultimately state whether the particular payments addressed in the ruling would be eligible for the portfolio interest exemption. To qualify for the portfolio interest exemption, and avoid U.S. withholding tax on payments of U.S.-source interest to a foreign person, [...]Read more

Few Changes in Final Rules on Foreign Tax Credit Splitters

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On February 9, 2015, the U.S. Treasury released final regulations on foreign tax credit (FTC) splitting arrangements (the “2015 Regulations”). The final rules, released the same day that the 2012 temporary and proposed regulations were set to expire, offer some definitional and other clarifications and add useful illustrations. But for the most part, the 2015 Regulations adopt the prior proposed and temporary regulations, including the exclusive list of FTC splitter arrangements. Notably, the final rules fail to address several “mechanical issues” (i.e., issues concerning the tracking [...]Read more

International Tax ADVISORY: Taxpayer Settles for Less than 150 Percent FBAR Penalty after Jury Found Willful Failure to File

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This advisory discusses United States v. Zwerner, which raised important questions not only about the FBAR penalties at issue, including their constitutionality, but also about the IRS’ administration of the Offshore Voluntary Disclosure Program.

The advisory is provided in PDF on the Alston & Bird website: http://www.alston.com/advisories/june-intl-tax/

International Tax ADVISORY: The Treasury and IRS Ease up (a Little) as FATCA Approaches

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The Foreign Account Tax Compliance Act (FATCA), enacted by the 2010 HIRE Act, generally requires foreign financial institutions (FFIs) and non-financial foreign entities (NFFEs) to report certain information about their U.S. account holders and substantial U.S. owners, respectively, or be subject to a 30 percent withholding tax on “withholdable payments.” With the July 1, 2014, effective date for withholding under FATCA less than three months away, the U.S. Treasury and IRS are working to patch up holes in the compliance framework. This advisory is provided on the Alston & Bird website: [...]Read more