Stephen C. Fox, CPA
U.S. International Tax
Stephen C. Fox, CPA, CMA
PO Box 880695
Port Saint Lucie,  FL  34988
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Foreign Tax Credit

Income tax systems that tax residents on worldwide income generally offer a '''foreign tax credit''' to mitigate the potential for double taxation. The credit may also be granted in those systems taxing residents on income that may have been taxed in another jurisdiction. The credit generally applies only to taxes of a nature similar to the tax being reduced by the credit (i.e., taxes based on income). This credit is often limited to the amount of tax attributable to foreign source income. This limitation may be computed by country, class of income, overall, and/or another manner. Most income tax systems therefore contain rules defining source of income (domestic, foreign, or by country) and timing of recognition of income, deductions, and taxes, as well as rules for associating deductions with income. For systems that separately tax business entities and their members, a deemed paid credit may be offered to entities receiving income (such as dividends) from other entities, with respect to taxes paid by the payor entities with respect to the income underlying the income recognized by the member. Systems with controlled foreign corporation rules may provide deemed paid credits with respect to deemed income inclusions under such rules. Some variations on the credit provide for a credit for hypothetical tax to encourage foreign investment (sometimes known as tax sparing).

 

Detailed rules vary among taxation systems.   

 

Credit for Foreign Income Taxes

A reduction of tax (credit) is often provided in income tax systems for similar income taxes paid to other countries (foreign taxes).  See, e.g.  26 USC 901-907UK ICTA 88, beginning at section 788,   Canada ITA section 126, Singapore ITA sections 50-51.    This is generally referred to as a foreign tax credit (FTC).  Amounts in excess of income tax are usually nonrefundable.  

 

The credit is generally limited to those taxes of a nature similar to the tax against which the credit is allowed (e.g., taxes on net income after allowance of deductions).  ( 26 USC 901 and 26 CFR 1.901-2)   Rules defining taxes eligible for credit may refer to one or more of the following characteristics of such tax:

  • Nature of the foreign levy (compulsory, payment for services, optional, discretionary as to rate, etc.),
  • Whether the foreign country allows a similar credit,
  • Whether the two countries have a tax treaty,
  • Nature of the base on which the levy is imposed (gross receipts, income net of deductions, deemed profits, property or other basis),
  • Form in which payments are made (withholdings, payment by check or giro, payments in kind),
  • Political considerations (boycotts by taxing country, etc.),
  • Conditions imposed by levying body on taxpayers (information disclosure, etc), or
  • Services or property provided by levying body or related persons as a result of the tax.

 

The U.S. system allows FTC, subject to limitations, for foreign compulsory levies based on net income or withheld from gross receipts.  It also denies FTC for taxes paid to countries requiring participation in certain  boycotts or taxes paid in exchange for goods or services provided by the taxing authority for services.  The UK allows FTC, subject to limitations, for foreign taxes of a nature similar to the income or corporation tax.  This is allowed under  tax treaties or as a  unilateral credit.  Canada similarly  allows credits allows credits, but limits the portion of foreign tax subject to deduction with respect to an oil or gas business.

 

Some countries do not tax persons whether resident of that country or not except on income considered to be from sources in that country or remitted to that country.  Those countries tend to allow FTC only to residents and only with respect to taxes imposed on the income subject to tax in the home country.  Singapore grants  FTC only to residents and only with respect to income taxed in Singapore.

 

Many systems specify the time at which a foreign levy meeting the requirements for FTC becomes eligible for such credit, such as when the levy is withheld from income or otherwise paid or settled in cash or property. See  26 USC 905(a) and 26 CFR 1.905-1Some systems (e.g., UK) allow a credit when the tax would be properly chargeable under the domestic system.   Others (e.g.,  India) allow FTC by reference to the time the foreign item of income is chargeable to home country income tax.  Some systems allow the credit with the tax would be recognized in financial statements.  Some systems base the timing of recognition on the method of accounting of the taxpayer, possibly with an election by a cash basis taxpayer to recognize the tax at the time properly accrued.  The U.S. allows such  election.

 

Many income tax treaties require that the governments party to the treaty grant FTC even where the domestic law of such party do not grant such credit.

 

Note that federal systems, such as the Canada, Switzerland, and the U.S., may have different rules for allowing a credit for extra-jurisdictional credits at the federal and state levels.  Such rules may differ among sub-federal (provincial, cantonal, state) jurisdictions. Thus, for example, Canadian and U.S. Federal governments allow credits from all foreign levels while Canadian provinces and U.S. states tend to allow a credit for income taxes paid to other provinces and states, but not for taxes paid to sovereign jurisdictions (countries).  See, e.g., New York State personal income tax form IR-112-R.  Sub-federal taxes may or may not be covered by income tax treaties.  Note:  Taxes covered by the treaty tend to be explicitly defined in each treaty.  For instance, the US/Switzerland treaty, Article 2, defines Swiss covered taxes as "the federal, cantonal, and municipal taxes on income…" but limits U.S. taxes to taxes under the Internal Revenue Code, which does not include state taxes.

 

Limitation on Foreign Tax Credit

Most systems limit FTC in some manner.  The U.S.  foreign tax credit limitation is based on the domestic income tax considered generated by the foreign source income subject to tax.  This limitation may be applied overall or at one or more of the following subsets:

  • By country Canada ITA section 126(6)(b), but mitigated by section 126(2.3). 
  • By type of income, as does the U.S.  See  26 USC 904, especially section 904(d) differentiating various categories of income (currently just passive and general baskets) and ; [ Canada ITA section 126(1) and (2), differentiating business from non-business income.
  • By member of a group.  See, e.g., UK  group relief, which excludes foreign tax credits.  Contrast to U.S. consolidated return rules which treat all group members as a single entity for determining FTC, at 26 CFR 1.1502-4(d).
  • By sub-type of domestic tax

 

Amounts in excess of this limitation may be allowed to reduce prior period taxes (and thus potentially subject to refund) or future taxes.  This period of carryover may be limited to a period of years or unlimited.  For example, the U.S. system in 2009 permitted taxpayers to apply excess FTCs to reduce U.S. Federal income tax for the first prior year (carry back) and then successively for each of the next succeeding 10 years (carry forward). The German system in 2007 permitted unlimited carry forward but no carry back.

 

Various countries have, at one point or another, limited FTC based on type of income.  UK individual income tax limits FTC by the types of income taxed separately in the UK system.  Thus, foreign taxes incurred with respect to trading income are limited separately from foreign taxes incurred with respect to investment income.   From 1987 through 2006 the U.S. limited FTC according to different categories or “baskets” of income, generally described as nine such baskets but in reality occasionally substantially more.   26 USC 904(d) as enacted by the Tax Reform Act of 1986, prior to amendments in 2004 by  PL 108-357 .  The definitions of such baskets were collapsed into two baskets (with exceptions) beginning 2007.  The U.S. baskets are currently passive, consisting of foreign personal holding company income (interest, dividends, rents, royalties, and certain gains, with significant exceptions) and all other (general limitation), with some exceptions generally not applicable per 26 USC 904(d), not yet fully reflected in regulations.  However, see 26 CFR 1.904-4 et seq. for definitions related to categories of income, which definitions still apply to the extent not repealed.

 

Countries having alternative tax regimes imposing certain minimum income taxes may modify the rules for computing FTC for those minimum taxes.  In the U.S. the alternative minimum tax  foreign tax credit (26 USC 59(a)) is modified based on differences between regular and alternative minimum taxable income.

 

Generally, where foreign taxes have been deducted or deemed deducted from income, and a credit or reduction of tax is claimed, the amount of income subject to tax is the amount before the reduction by foreign tax.  See, e.g., UK ICTA 88/s795  and US IRC sections 61  and 78.

 

Defining Foreign Source Income (FSI)

Where a system imposes limits on FTC based in some manner on foreign source income (FSI), the system generally provides rules for determining whether income is foreign or domestic source.  These rules may be relatively simple or quite complex.  (For simplicity of wording below, the phrase “sourced to” specifies in the target the place (foreign or domestic) constituting the source of the income in the object for computing FTC limitation.)  The following discussion explains U.S. and Canadian rules and certain other variations on one of these rules to illustrate the manners in which systems define FSI and the potential level of complexity.  These rules vary highly by country. 

 

U.S. rules are the same for individuals and entities, and for residents and nonresidents.  (Note, however, that foreign persons may be subject to U.S. tax on foreign source income effectively connected with the conduct of a U.S. trade or business.)  Under U.S. rules at 26 USC 861 and 862, source is determined for gross income (sales plus other income less cost of goods sold), then expenses and deductions are allocated and apportioned to such income (see below).  The source of income is determined separately for each type of income.

  • Interest and dividends are sourced to the tax residence of the payor of the income.  Exceptions are provided for income effectively connected with a trade or business, which is sourced to the place of such trade or business. The U.S. provides exceptions for certain interest and dividend income.
  • Income from the use of property (rents and royalties) is sourced to the place the property from which the income is derived is used.
  • Income from performance of services is sourced to the place the services are performed.  This may require allocation of income where services are partly performed in one place and partly in another.  See 26 USC 863(b)(1)   providing for regulations, including  1.861-4 requiring allocation on facts and circumstances including days worked.
  • Foreign exchange gains and losses are generally sourced foreign under section 988.
  • Gains from disposition of foreign assets, including shares of companies, may be sourced either foreign or domestic, or such sourcing may depend on other factors.  Under the U.S. system, such gains may also be  recharacterized as dividends in certain cases.
  • Deemed income under  controlled foreign corporation rules is generally sourced the same as dividends from those corporations would be sourced.  However, see  26 CFR 1.952-1(b)(2) which effectively expands the sourcing of dividends for this purpose to full look-through.
  • Gains from realty are generally sourced to the situs of the realty.
  • Income from sale of non-inventory property other than realty is generally sourced to the taxpayer's residence.
  • See below for source of income from sale of inventory (whether purchased or produced)

 

Canadian Approach

Canada follows a somewhat different approach than that above for business income. For an explanation of the non-statute provisions, see IT270R3. Both individuals and entities may have both business and non-business income.  The source of business income is determined differently for each type of business based on where the business is predominantly conducted. Such determination is based on different considerations based on the nature of different businesses.  For example, income from merchandise trading is sourced to where the sales are habitually completed, but other relevant factors may be considered.  By contrast, income from trading intangible property such as stocks and bonds is sourced to where the decisions related to such trading are normally made. (citations needed) 

 

For Canadian tax purposes, the source of non-business income varies by type of income and is determined similarly to the U.S. approach.  Non-business interest and dividends is generally sourced to residence of the payor. However, the source of dividend income is relevant only for individuals, as corporations are not eligible for FTC with respect to dividend income.  Non-business income from use of property is sourced to where the property is situated, used, or exploited. (citations needed)

 

Canadian individuals determine the source of income from employment under three different approaches. Note that individuals not resident in Canada are taxable in Canada on income from employment carried out in Canada, subject to modification under treaties, independently of the source rules.  The default approach is such income is sourced to the primary place of employment.  However, if the employment income is subject to tax in another country, the income is sourced based on the ratio of days worked in that country to total days worked. Both approaches are subject to modification under treaties.

 

Source of income for Canadian tax purposes, like Canadian FTC, is by country.

 

Source of Inventory Property Sales Income

There are several other approaches in use to source income from sale of inventory property.  In the UK, such income is sourced to the location of the trading activity giving rise to the income.  In the U.S., the source follows one of two rules under  section 863(b) and  Reg, §1.863-3 . Income from inventory produced by the taxpayer or certain related parties is sourced 50% to place title to the inventory passes to the purchaser and 50% based on the situs of assets used in production and distribution of the inventory.   Income from sale of purchased inventory is sourced to place of title passage.  Also see my articles in Journal of Taxation.  However, purchases from certain related parties are effectively ignored and the inventory may be considered produced by the taxpayer.  Various other systems have rules for determining what portion of income from inventory produced domestically and sold foreign or vice versa is sourced foreign.

 

Associating Deductions with Income

Where a system limits the credit based on domestic tax generated by foreign source net income, it must provide a mechanism for determining net income subject to home country tax, including associating deductions or exclusions with income for such purpose.  Such mechanisms tend to be very (complexNote that under UK rules a company tax return is submitted to HMRC by the Chartered Accountant who has audited the financial statements of that company, and is thus implicitly certified by such accountant.)  The process of associating deductions with income is referred to allocation and apportionment in some jurisdictions.  This is not to be confused with apportionment for state income tax purposes.

 

The U.S. and most other rules rely to some extent on factual relationships between deductions and income produced by incurring the deduction.  Thus, all deductions related to producing a set of income would be allocated to that set of income  To the extent a particular set of income includes both foreign and domestic income, the deductions so allocated are then be apportioned in some manner in some systems.  Canadian rules at  ITA section 4(1) require that deductions reasonably regarded as wholly allocable to income form a particular place be allocated thereto, as well as that portion of other deductions reasonably regarded as applicable to that income.  U.S. rules at 1.861-8T(c)(1)  require apportionment of most deductions may be done based on relative sales, gross income (sales less cost of goods sold), space used, headcount, or some other rational and systematic basis.

 

The U.S. has rules requiring that certain deductions be apportioned among all income on a formulary basis.  These rules are quite complex.  Interest expense must be apportioned on a consolidated return basis under section 863(e) based on relative adjusted tax basis of assets that produce or could produce the particular type of income.  See Reg. § 1.861-9 to 14Research and experimentation expenses must be apportioned based on either relative sales or relative gross income. Taxpayers must elect which base to use, and such election applies for five years.  See Reg. § 1.861-17.  State income taxes must be apportioned based on complex formulae.(Note, however, that the author of these regulations and I have had discussions regarding the constitutionality of the regulations, both citing the same cases.) Stewardship and supportive expenses must each be allocated and apportioned under one of several methods.  See Reg. §1.861-8T(b)(3) and (4), Young and Rubicam, and PLR 8806002. Few other countries have developed rules to this level of complexity and specificity.

 

Refunds and Adjustments

Most systems require corrective action by taxpayers if the amount of tax previously claimed as FTC changes.  Such changes could occur, e.g., because of carryback of deductions, losses, or credits in the foreign country, changes on examination of returns, etc.  The form of corrective action varies by jurisdiction, and may vary within a jurisdiction by type of adjustment. 

 

U.S. section 905(c) differentiates three forms of adjustment to foreign taxes:  adjustments to taxes paid by the taxpayer which did reduce actual U.S. taxes paid, adjustments to taxes deemed paid which did not exhaust the pool of deemed paid taxes, and adjustments which did not reduce U.S. taxes yet.  Taxpayers with the first type of adjustment must amend tax returns and pay or claim a refund for the difference in tax.  Only corporate taxpayers can have the second type of adjustment.  Those taxpayers must reduce the pool of taxes going forward and advise the government of the change.  Taxpayers with the third type of adjustments must advise the government of the change and make appropriate adjustments to unused FTC carried over.

 

Deemed Paid Foreign Tax Credit

Some countries, including the U.S., grant FTC to corporations owning shares of a foreign corporation when the shareholder receives a dividend or other deemed income (e.g., under  controlled foreign corporation  provisions) based on the dividend payor's taxes and income. See  section 902 and UK ICTA88/s801.  Under such systems, generally the amount of credit is the foreign taxes paid by the foreign corporation times the fraction of earnings distributed to the shareholder as a dividend.  Generally, the amount of dividend is "grossed up" for the amount of available credit, before limitations, effectively charging the shareholder with home country tax for the income on a pre-tax basis.  See 26 USC 78   The deemed paid credit mechanism may be applied up the chain of corporate distributions, and may be subject to ownership limitations.  UK currently law limits this to three tiers with a control or 10% ownership requirement, as the U.S. formerly did.  The U.S. now limits this to six tiers with a 10% total and 5% intermediate ownership requirements. Pooling or tracking requirements, deficits, and foreign tax adjustments can make calculations related to deemed paid taxes quite complex.     

 

Examples

1.  Effect of FTC on worldwide tax burden

Facts:  Carpet Ltd is a UK resident company publicly traded company which buys and sells carpets through offices in UK and Germany. Carpet Ltd's tax rate in the UK is 33% on its business net income of £1 million.  JoeCo is also subject to tax in Germany on the equivalent of £100,000 at a tax rate of 37%, or £37,000.  The UK limits FTC to the amount of UK tax that would be on the foreign (non-UK) source income.  If Carpet Ltd has no other foreign source income under UK concepts, Carpet Ltd's UK tax is £330,000 less FTC of £33,000, or £297,000.  Total taxes would be £297,000 + £37,000 or £334,000.  On the other hand, if Carpet Ltd had additional foreign source trading profits of £20,000, the FTC limit would be sufficient to use all of the German tax as credits, and UK tax after FTC would be £293,000.  Thus, worldwide tax rate with FTC tends to be at a minimum the home country tax rate and at a maximum a foreign country tax rate, if higher.

 

2.  Effect of expense allocation

Differences in expense allocation rules and transfer pricing can impact this result.  If, in the base example above, Carpet Ltd had £10,000 of expenses of the Germany operation which Germany disallowed as not allocable to German income under German concepts, the German tax would increase to £40,700 while the UK FTC limitation would remain £33,000.  This would increase worldwide taxes by the German tax on the disallowed expenses, to a total of £337,300.

 

3.  Deemed paid credit

Assume a German 100% subsidiary of a U.S. company has earned ,000 of pre-tax income and paid 0 of German taxes over its history.  If the Germany company pays a dividend of 0, the U.S. company will, subject to limitations, be entitled to of FTC.

 

Tax Sparing

Tax sparing refers to granting a home country foreign tax credit for specific foreign taxes that would have been payable but for tax exemption in the foreign country.  The concept of tax sparing was once fairly widespread, but has been reconsidered by many countries.  See, e.g., the book  Tax Sparing: A Reconsideration  published by the OECD.  The apparent intent of the provisions was for developed nations to provide economic incentives for enterprises in such nations to invest in developing nations.  Under the Germany/Indonesia tax treaty of 1977 (a typical provision), Germany allowed a credit with respect to dividends, interest and royalties for Indonesian taxes that would have been paid but for provisions of Indonesian law designed to promote economic development in Indonesia.  U.S. treaties and tax law do not follow the tax sparing concept.

 


 


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