Cloud Computing: U.S. Tax Compliance Complexity for Foreign Subsidiaries

Transcription

1 Cloud Computing: U.S. Tax Compliance Complexity for Foreign Subsidiaries By James Carr, Jason Hoerner, Shirish Rajurkar, and Chanin Changtor Introduction In today s technology-driven economy, many multinational enterprises are beginning to take advantage of cloud-computing technology in their global infrastructure and market facing-activities. What is cloud computing? Various definitions of clouding computing exist, perhaps the most concise is the one provided by the research firm Gartner, Inc., which calls it a style of computing where massively scalable and elastic IT-related capabilities are provided as a service using Internet technologies to multiple external customers. 1 Despite its rapid acceptance by the business community, little guidance has been issued on how U.S. federal income tax principles may be applied to businesses operating in the cloud. In addition to creating difficulties in evaluating potential tax issues, the lack of guidance may impede a corporate taxpayer s ability to determine its appropriate U.S. federal income tax return positions and reporting obligations. This challenge may be even more difficult for U.S. multinationals with foreign subsidiaries that enter into cloud computing transactions cross-border. Case Study To illustrate the potential tax return reporting and filing issues faced by taxpayers engaging in cross-border cloud computing, this article posits a case study involving a potential fact pattern in which a U.S. multinational s foreign subsidiary provides cloud computing services. Assume DC, a U.S. corporation, is the parent company of a multinational group engaged in developing proprietary customer service software and marketing the software to its clients. The clients are business vendors who use the software to supplement customer service capacity. The software allows the clients to respond to routine customer service requests and reduces the demands on their physical customer service center. When end-customers submit certain routine customer service requests, the requests are routed to DC software hosted on servers in the United States, which provides customized responses to the requests. The software is fully automated and requires little monitoring or maintenance by employees of DC or its subsidiaries. The software utilizes a proprietary intellectual property developed under a cost sharing arrangement (CSA) between DC and its Country A subsidiary, FC. Under the CSA, DC and FC share the cost of developing the software. DC owns the U.S. rights to the software, whereas FC owns the rights to the software in the rest of the world (ROW). All development activities are conducted by FC s personnel located in Country A. DC is the principal for contracts with business clients in the United States, and FC is the principal for ROW clients. For the sake of simplicity, assume that such U.S. and ROW clients can be identified. By paying a subscription fee, the clients have access to the software that allows customers to submit customer service requests. Under the software terms of use, a client does not have any property rights to the software other than online access and use during the subscription period. Upon the expiration of the subscription, clients lose access, and DC and FC retain all rights with respect to the software. Regardless of the location of the end customers, all submitted requests are processed on servers located in the United States. The fees collected are split between DC and FC based on the geographical location of the end users, with DC functioning as a collection agent for FC. DC and FC do not own the servers on which the software is hosted. Rather, DC entered into an agreement with an unrelated Server Provider (SP), pursuant to which SP agrees to provide the data network, platform infrastructure, and hardware on which the software operates. SP is solely responsible for the operation and maintenance of the servers, and will credit DC for any network downtime suffered. FC does not maintain an office or employees in the United States, and does not have a sales representative in the United States. Both FC and DC are calendar year taxpayers. Country A has an income tax treaty with the United States (Country A Treaty) that is currently in force. The Country A Treaty is similar to the 2006 U.S. Model Income Tax Treaty. General Rules There is no comprehensive set of U.S. guidance specifically governing the tax treatment of cloud computing (e.g., characterization, sourcing, and reporting of income). Instead, the Treasury Department has a policy of adopting or adapting existing principles to the cloud rather than create new or additional tax regimes. 2 A U.S. person is generally subject to U.S. federal income taxation on all of its taxable income, regardless of the source. 3 A foreign corporation, on the other hand, is generally subject to U.S. federal income taxes under one of two regimes: a net basis tax regime on income connected with a U.S. trade or business, 4 and a gross basis tax regime on so-called fixed or determinable annual or periodic income (FDAP income). 5 FDAP income generally includes nearly all types of income, including services income, but does not include gains derived from most sales of property. 6 Foreign corporations are generally subject to 30-percent tax on the gross amount of their U.S. source FDAP income to the extent not effectively connected with a U.S. trade or business. 7 The 30-percent tax rate may be reduced under an applicable tax treaty. Foreign corporations that have a U.S. trade or business at some January-February

2 time during their tax year are subject to tax on their net income effectively connected with the U.S. trade or business (also known as effectively connected income or ECI) at tax rates generally applicable to U.S. corporations. 8 A foreign corporation that earns ECI may also be subject to a U.S. branch profits tax of 30 percent. 9 The amount of U.S. federal income taxes imposed on a foreign corporation, however, may be reduced or eliminated by operation of an applicable income tax treaty. 1. U.S. Trade or Business The term trade or business in the U.S. is not specifically defined apart from services performed in the United States. 10 A foreign corporation will be treated as having a U.S. trade or business if it performs personal services in the United States. 11 In other instances, whether a foreign corporation has a U.S. trade or business is based on the facts and circumstances of the foreign corporation s economic activities in the United States. 12 A foreign corporation s activities in the United States must generally be considerable, continuous and regular to constitute a U.S. trade or business. 13 A foreign corporation can also have a trade or business in the United States through an agent who performs activities on behalf of the foreign corporation that are substantial, regular, and continuous. 14 In determining whether the activities of an agent rise to the level of a U.S. trade or business, the Tax Court has generally focused on the ability of an agent to bind a principal or to conclude contracts on behalf of a principal. 15 For example, U.S. courts have attributed the U.S. trade or business of a dependent agent to a foreign person based on the agent s authority to bind or to conclude contracts on the foreign person s behalf. 16 The authority of an agent to bind or conclude contracts, however, is not necessarily required. Courts have attributed the activities of an independent agent to a foreign person where the business dealings between the independent agent and the foreign person were substantial, regular, and continuous Effectively Connected Income A foreign corporation with a U.S. trade or business is subject to a net basis tax on its effectively connected income. 18 In general, U.S. source income of a foreign corporation is deemed to be ECI, even if the income and the U.S. trade or business are factually unrelated. 19 U.S. source FDAP income, however, is ECI only if (i) it is derived from assets used or held for use in the conduct of the United States business (the asset use test) or (ii) the activities of the U.S. business were a material factor in the production of the income (the business activities test). 20 Foreign source income of a foreign corporation will generally not be ECI unless it is attributable to a U.S. office or fixed place of business that is a material factor in the production of income, and the office or fixed place of business regularly carries on activities of the type from which such income is derived. 21 For ECI purposes, an office or fixed place of business is defined as a fixed facility that is a place, site, structure, or other similar facility through which a foreign person engages in a trade or business. 22 This would also include an office or fixed place of business of a dependent agent who has the authority to negotiate and conclude contracts in the name of the foreign corporation and regularly exercises that authority. 23 A foreign corporation is not considered to have an office or fixed place of business, however, merely because the foreign corporation uses another person s office or other fixed place of business, if the foreign corporation s trade or business activities in that office or fixed place of business are relatively sporadic or infrequent. 24 If the corporation generating ECI is also a controlled foreign corporation (CFC) under the Subpart F anti-deferral regime, 25 careful consideration should be made to determine what amount, if any, of the CFC s income may be includible in its U.S. shareholder s gross income as subpart F. ECI is generally excluded from treatment as Subpart F income unless the item of income is exempted from taxation by operation of the treaty Application of an Income Tax Treaty An income tax treaty may override or reduce the amount of income tax that would otherwise be due under U.S. domestic laws. A U.S. income tax treaty generally applies to persons who are residents of the United States or the contracting country. 27 Benefits under the treaty may be denied, however, if the person claiming the benefits fails to meet the requirements under Article 22, Limitation of Benefits. 28 The Limitation on Benefits Article is intended to prevent treaty-shopping, and generally limits benefits under an income tax treaty only to a foreign person who is a resident of the treaty partner s jurisdiction and can establish that it has sufficient economic connections with the treaty country. 29 The business profits of a foreign person that qualifies for treaty benefits may be subject to income tax in the United States only if the company carries on business through a permanent establishment (PE) located in the United States and the profits are attributable to the PE. 30 Article 5 of the U.S. Model Tax Treaty generally defines a PE as a fixed place of business through which the business of an enterprise is wholly or partly carried on. 31 A fixed place of business can include a place of management, a branch, an office, a warehouse, or a factory. 32 The use of a facility for certain specified activities, such as using the facilities solely for purposes of storage or display of goods, will not constitute a PE. 33 An agency relationship can also create a U.S. PE for a foreign corporation. A foreign corporation may be treated as having a U.S. PE if its agent habitually exercises the authority to conclude contracts on its behalf in the United States. 34 This agency imputation provision, however, generally does not apply to activities performed by an independent agent. 35 An agent is generally considered independent if (1) it is both legally and economically independent from the enterprise; and (2) it acts in the ordinary course of business when acting on behalf of the enterprise. 36 An agent is legally independent if it has discretion over how to conduct business and is not subject to comprehensive control from his or her principal. 37 An agent is generally economically independent of its principal if it bears entrepreneurial risk (i.e., its income and profits were not guaranteed and its risk of loss was not protected). 38 For this purpose, an agent who is otherwise independent but acts in such capacity exclusively or almost exclusively for one principal may be considered dependent The Tax Executive

3 U.S Income Tax Analysis 1. Character of Income Earned The character of the income earned drives the tax determinations that are relevant to both DC and FC return filing obligations, such as how income is sourced, whether and to what extent the income will be effectively connected with a U.S. trade or business or subject to the anti-deferral rules of Subpart F, and the extent to which the income may be subject to a U.S. or foreign withholding tax. The character of income derived from hosted software offerings under U.S. tax rules is not always immediately clear. The tax rules tend to lag the evolution of software business models. A taxpayer s income from providing clients with access to software over the internet in exchange for a subscription fee generally could be characterized either as a transfer of a computer program or a service generating service income, depending on the specific facts of the arrangement. Treas. Reg provides guidance for the classification of a transfer of a computer program. Transfers involving computer programs are generally characterized either as licenses generating royalty income, leases generating rental income, or sales generating sales income. 40 Under these rules, the character of FC s income will depend on whether FC is treated as having transferred a copyright right or copyrighted article and whether FC has transferred all substantial rights or all benefits and burdens of ownership in the software. 41 In general, FC would be treated as transferring a copyright right in connection with allowing end consumers to access its software if its clients receive any of the following four rights: 42 to make copies for purposes of distribution to the public; to prepare derivative computer programs based upon the software; to make a public performance of the software; and to publicly display the software. FC s clients only have access to the software for the limited purpose of using it to respond to routine customer service requests. Neither the clients nor their customers have the right to make copies or derivative computer programs without infringing on FC s IP. The regulations do not define what constitutes the right to public display and performance. In the context of the right to make copies for purposes of distribution, the regulations exclude from the definition of the term public distributions to persons who are related or specifically identified. 43 FC may reasonably argue that it did not transfer the right to public display and performance because the ability to access the software is limited to customers of FC s client. Should the transaction between FC and its client then be treated as a transfer involving a copyrighted article? Under Treas. Reg , a transfer of software is treated as the transfer of a copyrighted article when a transferee acquires, among other things, only a copy of the software without any copyright rights. 44 A copyrighted article is defined for this purpose as a copy of a computer program from which the work can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. 45 FC s business clients obtain the right to use FC s proprietary customer service software but without any of the attending copyright rights. This supports characterizing the transaction as a transfer involving copyrighted articles. If the transaction is treated as a transfer of copyrighted article, FC may be earning income from either (1) sales of copyrighted articles, or (2) leases of the software applications under Treas. Reg principles. Generally, a transfer of a copyrighted article will be treated as a sale if the transferee in question receives the benefits and burdens of ownership. 46 Otherwise, the transfer will be treated as a lease or license. 47 The term benefits and burdens of ownership is not defined in the regulations. The regulations do, however, provide examples illustrating the facts and circumstances under which a transfer of the benefits and burdens of ownership in a copyrighted article could occur. 48 For example, a transfer that is perpetual in nature favors a sale rather than a license treatment. 49 Where, such as in the case study, there is a substantial restriction on rights to sublicense and any interest in the software terminates at the end of the subscription period, the terms of the access may more closely resemble those of a lease of a copyrighted article. 50 Treas. Reg does not extensively describe the characterization of income as services. Those regulations seemingly contemplate services primarily in the context of software development activity. Where transactions involve the use of property (such as software), however, and also have elements that resemble the provision of services, section 7701(e) may be instructive. Section 7701(e) provides guidance on whether the transaction would be more properly characterized as services rather than a lease or rental. Section 7701(e) provides a non-exclusive list of six factors to be applied in the determination: 51 Physical Possession: A transaction where the customer does not take physical possession of the software generally supports characterizing the transaction as a service. Control: A transaction where the customer does not have control over access to the software generally supports a service characterization. Economic or Possessory Interest: A transaction where the customer is not responsible for costs associated with maintaining the software, or where the customer s risk of loss is limited to its ability to access the software generally supports a service characterization. Substantial Risk of Non-Performance: If the customer does not bear the risk of non-performance (i.e., software malfunctions), the fact generally supports a service characterization. Concurrent Use: A transaction where the customer does not have exclusive access to the software generally supports a service characterization. Contract Price in Excess of Rental Value: If the payments for accessing the software substantially exceed the rental value of the software without any charge for services, such fact generally supports a service characterization. In the case study, FC s clients do not appear to have physical possession or exclusive control of the computer program; their cus- January-February

4 tomers may only access the program through the internet and other users may access the program concurrently. If the server on which the software is hosted is not functional, the customers would not be able to access the software. Finally, the customers do not have control or bear the cost of maintaining the software or the server on which the software is hosted. These facts support characterizing the transaction between FC and its customers as a provision of services Source of Income Generally, income derived from the provision of services is sourced to where the services are performed. 53 The analysis, however, is not as straightforward when considering a highly automated service offering, such as with cloud offerings. Guidance on this point is scant. In such a case, the IRS and courts might look either to the location of use of the software by users or to the location of capital assets and associated activities. For example, it is possible that the location of execution of the software (e.g., the server on which the software runs) would be considered. In Commissioner v. Piedras Negras, 54 the Fifth Circuit Court of Appeals held that a foreign taxpayer who provided broadcasting services earned all foreign source income even though more than 95 percent of the income was from advertisers in the United States. 55 The court reasoned that the income should be sourced at the location where the capital assets and labor inputs of the taxpayer were located, regardless of the location of its listeners or advertisers. 56 Analogizing Piedras Negras to the facts in the case study, FC s services income associated with the subscription-based service offerings should arguably be U.S. source income because the service income is derived from assets (e.g., servers) operating in the United States. On the other hand, an argument may also be made that the focus should be less on where the servers reside. Focusing the analysis solely on the location of the server may allow taxpayers to manipulate the source of income rules to their advantage without necessarily reflecting the economic reality of the transaction, particularly since a server can be located anywhere in the world and separated from valuable people functions. Perhaps the location of the servers should be one of the factors that taxpayers need to take into account in their source of income analysis. It may be appropriate, however, to take into account other bases, such as ancillary services necessary for the business or the place of consumption. 57 This line of argument was explored in the Piedras Negras dissenting opinion, which argued that the transmission service should not be viewed individually, but rather in context with other facts and activities that were essential to the taxpayer s business. 58 The opinion argued that factors such as the use of a U.S. address and mailbox to receive correspondence and advertising payments, the fact that taxpayer s agent traveled daily to the United States to collect and divide the payments, and that the venue for contract disputes would be in the United States, favored finding that the taxpayer operated its business in the United States, and the income should therefore be U.S. source. Thus, to the extent that FC s business operation involves ancillary activities in a different jurisdiction than the location of the server, one may argue that, (e.g., despite the holding in Piedras Negras) the income should be sourced in such jurisdiction. Alternatively, only the portion of the income attributable to the ancillary activities should arguably be allocated to the jurisdiction of performance U.S. Trade or Business The Internal Revenue Code and Treasury Regulations do not define the term trade or business in the U.S. In general, a foreign corporation s activities in the United States must be considerable, continuous, and regular to constitute a U.S. trade or business. By operating its business over the Internet, a foreign person may engage in extensive and significant transactions with U.S. customers without having to physically enter the United States. 60 A foreign person may also limit its presence in the United States to maintaining and conducting business transactions through a server in the United States. 61 There is no clear authority on whether a foreign corporation should be treated as having engaged in a trade or business in the United States as a result of its software being hosted on a server in the United States. In the case study, FC s software is fully automated and only minimal external human functions are required to administer the software. Because the servers which are critical to FC s business operation are located in the U.S., the IRS may argue that services are performed at the location of, and in connection with, the servers. The regular performance of services in the United States would ordinarily constitute a U.S. trade or business, generating U.S. source services income. 62 Given the evolution of cloud computing business models and the lack of judicial precedent on U.S. trade or business issues in this context, whether the IRS could successfully argue that FC is engaged in a U.S. trade or business based on the location of primary capital assets is uncertain. This uncertainty puts FC in a difficult position because its return filing obligations will differ depending upon whether it has a U.S. trade or business. FC s U.S. Tax Return Filing Obligations A key determinant of FC s return filing requirements is whether it is engaged in a U.S. trade or business. 1. FC s Return Filing Obligation if It Does Not Have a U.S. Trade or Business Treas. Reg (g)(1) generally requires a foreign corporation that is engaged in a trade or business in the United States at any time during the taxable year to file a return on Form 1120-F. The regulation requires a foreign corporation with a U.S. trade or business to file a Form 1120-F even if it does not have any effectively connected income, has no income from sources within the United States, or its income is exempt from income tax by reason of an income tax treaty or any section of the Internal Revenue Code. 63 If it is determined that FC does not engage in a U.S. trade or business, FC is generally not required to file Form 1120-F. 64 It may nonetheless be advisable for FC to file a protective tax return if it has some limited business activities in the United States that it believes do not rise to the level of a U.S. trade or business. Such a protective return will protect FC s right to claim deductions, should it later be determined that it did have a U.S. trade or business. Section January-February

5 882(c) and related regulations provides that a foreign corporation is allowed deductions from income only if the deductions are connected with ECI and the income and deductions are reported on a timely filed return. 65 If FC does not file Form 1120-F because it concludes that its activities in the United States are not sufficient to constitute a U.S. trade or business, it would not be able to claim deductions against income in the event the IRS disagrees with FC s position and concludes that FC has a U.S. trade or business. In such case, FC generally will not be able to claim any credits or deductions to offset its income because it failed to timely file its tax return. 66 To preserve its right to claim credits and deductions, FC may choose to file a timely protective return. The foreign corporation filing a protective return is not required to report any gross income or include documentation supporting its tax calculation. The foreign corporation is required to attach a statement to the return indicating that the return is being filed to preserve the corporation s right to claim deductions. 67 To file a protective return, FC would need to check the box indicating that it is filing a protective tax return on page 1 of the Form 1120-F, complete the identifying information section (name, address, and employer identification number), and provide the information required in items A through M FC s Return Filing Obligation if It Has a U.S. Trade or Business As discussed previously, if FC has a U.S. trade or business, it will generally be required to annually file a corporate income tax return Form 1120-F, even if (a) it has no income which is effectively connected with the conduct of a trade or business in the United States, (b) it has no income from sources within the United States, or (c) its income is exempt from income tax by reason of an income tax convention or any section of the Code. 69 FC is generally required to report its ECI on a completed Form 1120-F, which includes calculating not only its net ECI subject to tax, but also income subject to branch level taxes. 70 If FC does not have gross ECI for the taxable year, however, it is not required to complete the return schedules, but must attach a statement indicating the nature of any exclusions claimed and the amount of the exclusions to the extent readily determinable. 71 FC would also be required to provide its balance sheet and reconciliation of income, though it may elect to limit the reporting obligations only to assets of the corporation located in the United States and other assets used in the U.S. trade or business. 72 The due date for Form 1120-F depends on whether FC has a U.S. office or other fixed place of business. If FC has a U.S. office or place of business in the United States, the return will be due on or before the fifteenth day of the third month following the close of FC s taxable year, not including extensions. 73 Otherwise, the return will be due on the fifteenth day of the sixth month following the closing of the taxable year, not including extensions. 74 A foreign corporation that fails to timely file its tax return will be subject to a penalty of $10,000 for each taxable year in which the failure to file occurs. 75 The corporation will also not be allowed to claim deductions and tax credits as a result of the failure to supply the required information. 76 Because it is engaging in a U.S. trade or business, FC is also required to maintain specific records that would allow the Service to determine FC s liability pursuant to section 6038C. 77 The regulations list seven categories of documents required to be maintained: (1) original entry books and transaction records; (2) profit and loss statements; (3) pricing documents; (4) foreign country and thirdparty filings; (5) ownership and capital structure records; (6) records of loans, services, and other non-sales transactions; and (7) anti-conduit financing documentation. 78 Failure to comply with the record maintenance requirement under section 6038C may subject FC to a $10,000 penalty for each taxable year in which the failure occurs. 79 The IRS may also disallow certain deductions as a result of the failure to comply with the reporting requirement. 80 Effect of an Income Tax Treaty on FC s Returns If FC is treated as having a U.S. trade or business and ECI, its tax return filing and reporting obligations may change substantially depending on if it qualifies for benefits under an income tax treaty with the United States. FC will qualify for benefits under Country A treaty only if it meets the requirements of the Limitation on Benefits Article. 81 While the specifics of the tests vary from treaty to treaty, a foreign corporation generally may qualify for benefits if it meets one of the following tests: (1) test based solely on ownership; (2) ownership/ base erosion test; and (3) active trade or business test. 82 A foreign corporation that fails to meet the requirements of these tests may also request a ruling from a competent authority. 83 If FC does not qualify for treaty benefits, provisions of Country A Treaty will not apply and FC will have to file a U.S. tax return as required under U.S. domestic tax laws. If FC qualifies for treaty benefits, however, FC will be subject to tax on its U.S. source business profits only to the extent that they are attributable to a U.S. PE. 84 There is no direct U.S. authority, and little outside guidance, analyzing whether a person s activities constitute a permanent establishment in situations involving electronic commerce. The Organization of Economic Co-Operation and Development (OECD) has published a number of commentaries addressing various aspects of taxation of income from electronic commerce. 85 The OECD addressed the application of the PE Article in the context of e-commerce in a commentary published in December According to the commentary, an enterprise may be considered to have a PE at the location where it maintains a server. Such server, however, may constitute a permanent establishment only if the enterprise has the server at its own disposal. 87 The commentary does not specifically define what constitutes having a server at one s own disposal; it merely provides an example where a taxpayer would be considered as having a PE at the location of the server if the taxpayer owns (or leases) and operates the server. 88 The OECD has suggested that, where an enterprise operates computer equipment at a particular location, a PE may exist at the server location even though no personnel of the enterprise are required at the location of the server. 89 In the OECD view, human intervention is therefore not required for a PE to exist. Fixed, automated equipment that can perform important and essential busi- 32 The Tax Executive

6 ness functions is sufficient to create a permanent establishment at the equipment location. 90 In the case study, FC does not have significant presence in the United States outside the software hosted on servers within the country. Applying guidance from the OECD clarification, whether FC has a U.S. PE depends on whether the servers are at FC s disposal. Under the definition of disposal in the OECD commentary, FC may not be treated as having a PE as a result of its use of the servers provided by SP, an unrelated party. While FC may be considered to have leased the servers based on FC s use of the servers being leased by DC under the agreement between DC and SP, it should not be treated as the operator of the servers for PE purposes in our facts. Under the terms of the agreement for the use of servers, SP has sole responsibility in ensuring that the servers function properly. FC does not have any obligation to maintain or operate the servers and would be compensated (indirectly through DC) in the event the servers malfunction, causing downtime. These facts therefore may arguably insulate FC to a certain extent from having a U.S. PE based on its usage of the servers. If FC is treated as not having a U.S. PE, its return filing burden may be less compared to its obligations under U.S. domestic tax law. FC may still be required to file form 1120-F if it has a U.S. trade or business. 91 It may, however, complete only the identifying information on page 1 of Form 1120-F if it does not have any gross income for the tax year because it is claiming a treaty exemption. 92 If FC is claiming that it has no gross income subject to U.S. federal income tax because it does not have a U.S. PE and qualifies for the benefit of a U.S. income tax treaty, FC must also attach a statement to the return indicating the nature of the exclusion claimed, 93 or complete Item W on Form 1120-F and attach Form 8833, Treaty- Based Return Position Disclosure to explain the nature of the treaty exemptions claimed. 94 On the other hand, if FC has income from a U.S. trade or business and is also treated as having a U.S. PE from the use of the server, FC would be required to file form 1120-F to report the income attributable to such PE. In the case of treaty-based reporting, the instructions modify the general reporting rule and provide that the amount reported on Form 1120-F, Schedule L (Balance Sheet per Books) must reflect the books of the PE determined by analogy under the principles of the OECD Transfer Pricing Guidelines. 95 Generally, the OECD attributes profits to a PE based on the nature of the functions (taking into account the assets involved and risks assumed) performed by the PE. This general principle applies in the context of a server PE. Consequently, if the server is shown to perform only routine functions and is reliant on other parts of the enterprise to provide the valuable intangible assets, the server PE should not be attributed with a substantial share of the profit associated with the activities of the enterprise conducted through the server. Further, the discussion paper suggests that in most cases, the server PE should be treated as either a contract service provider or an independent service provider, where all substantial assets and risks remain with the remainder of the enterprise. In either case, taxpayer would have to take into account the arm s length value of the tangible and intangible property used by the server PE that were contributed to it from other parts of the enterprise. 96 The instructions also provide that similar OECD rules may be applied to determine the interest expense attributable to the business profits of the U.S. PE. 97 Reporting Obligations of Income Subject to Withholding 1. Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, and Form 1042-S, Foreign Person s U.S. Source Income Subject to Withholding To the extent that FC generates income that is subject to withholding in the United States (such as royalty or interest income), the withholding agent for such income must provide Forms 1042 and 1042-S to the IRS. 98 Form 1042 and 1042-S are meant to provide the Service with information regarding income of foreign persons that are subject to withholding. 99 Both forms are required to be filed by March 15, not including extensions, of the year following the taxable year Form W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding If FC is claiming an exemption from or a reduced U.S. withholding tax under an income tax treaty, FC must also provide Form W-8BEN upon request to the withholding agent or payer to notify them whether it is claiming a reduced rate of, or exemption from, withholding Form 8833, Treaty-Based Return Position Disclosure A foreign corporation is required to submit Form 8833 for each treaty-based return position taken. 102 A foreign corporation is treated as taking a treaty-based return position if it maintains that a treaty of the United States overrules or modifies its tax treatment under U.S. federal income tax laws. 103 Form 8833 is submitted along with the taxpayer s annual income tax return or, if the taxpayer is not required to file a tax return, filed separately by the due date of the return. 104 Because a Form 8833 is required to be submitted for each treatybased return position, FC would also be required to submit a separate Form 8833 if, for example, it claims an exemption or a reduction from withholding tax under Country A income tax treaty. 4. Form 1099-MISC, Miscellaneous Income Taxpayers are required to file Form 1099-MISC for each person to whom they have paid at least $10 in royalties or at least $600 in payments for rents and other specifically defined services. 105 There is an exception, however, for payments made to a corporation. Form 1099-MISC is generally not required for payments made to a corporation unless they are specifically listed in the instructions as reportable payments. 106 Pursuant to the instructions to Form 1099-MISC, rents and royalties payments made to a corporation are not required to be reported on Form 1099-MISC. 107 Consequently, FC should not be required to report its payments to DC for the use of the servers because they are payments made to a corporation. January-February

7 DC s Tax Return Filing Obligations 1. Filing Obligations Relating to DC s Ownership of FC As a U.S. corporation, DC is subject to U.S. federal income tax on its worldwide income, 108 and is required to file a federal income tax return Form 1120 regardless of whether it has taxable income. 109 DC must also consider additional filing obligations that may arise as a result of its ownership of FC. In particular, section 6038 requires that DC files Form 5471 to report the information relating to the activities of FC, a foreign corporation, because it owns more than 10-percent ownership interest. 110 Although the information required on Form 5471 may overlap with the information reported by FC on its Form 1120-F, the filing of Form 1120-F by FC does not relieve DC s obligation to file Form 5471, and vice versa. One piece of information that DC is required to report on Form 5471, Schedule I, is the amount of Subpart F inclusion. Because FC is a wholly owned foreign subsidiary of DC, a U.S. shareholder within the meaning of section 951(b), FC should qualify as a CFC under Subpart F. As a U.S. shareholder of a CFC, DC may be required to include in its gross income FC s Subpart F income. 111 If FC has Subpart F income, the profits from foreign sales or services may be currently subject to U.S. income tax. Assuming FC s income producing activities are properly characterized as the provision of services, FC s income should be analyzed under the rules relating to foreign base company services income (FBCSvcI). In simplified terms, FBCSvcI arises when a foreign subsidiary performs services outside of its country of incorporation for or on behalf of a related party. Services performed by a CFC, however, are considered rendered for or on behalf of its U.S. parent if the U.S. parent contributes substantial assistance to the performance of such services. 112 Notice provides that substantial assistance is deemed rendered by a U.S. affiliate if 80 percent or more of the costs of performing the services are provided by the U.S. affiliate. Examples of substantial assistance are direction, supervision, services, know-how, financial assistance (other than contributions to capital), equipment, material, or supplies. 113 FC may be treated as earning income from the provision of services performed at the location of the servers. Thus, FC would therefore be deriving income from the performance of services outside its country of incorporation (Country A) and would generate FBCSvcI if the services are performed for, or on behalf of, a related person. Based on the examples provided in the regulations, FC may be considered as performing services for, or on behalf of, a related person in one of two ways: (1) performing services which a related person is obligated to perform, or (2) receiving substantial assistance furnished by a related person. FC may be considered to perform services which a related person is obligated to perform in instances where DC contracts with a client that has customers both within and outside of the United States. FC may be treated as the person performing services for customers outside of the United States due to its ownership of ROW IP rights. Therefore, FC may be treated as performing certain services on behalf of a related person (DC), generating FBCSvcI. Alternatively, FC may also be treated as generating FBCSvcI because it receives substantial assistance from a related person. FC will be treated as receiving substantial assistance by related U.S. persons if the cost of the assistance provided by related parties is greater than 80 percent of the total cost of providing the services. 114 Assistance for this purpose includes, but is not limited to, direction, supervision, services, financial assistance, and equipment, material, or supplies. 115 FC uses the servers leased by DC to host the software it uses in its business. The cost of using the servers will be taken into account in the substantial assistance calculation, but only to the extent of the difference between the amount actually paid and the arm s-length charge for the use. 116 If such cost exceeds 80 percent of the total cost of providing the service, FC will be deemed to receive substantial assistance from a related party, and therefore the income earned from the software will be FBCSvcI. The determination whether FC generates any Subpart F income should be made in conjunction with the ECI and treaty exemption analysis. A CFC s ECI is excluded from Subpart F unless the income is exempted from taxation by operation of an income tax treaty. 117 Therefore, if FC determines that its earnings from cloud operations are ECI subject to a net basis tax in the United States, the amount would not be treated as Subpart F. If FC takes a position that the ECI is not subject to tax in the United States, however, because FC qualifies for the benefits of an income tax treaty and does not have a U.S. PE, FC will have to carefully analyze if the earnings should be treated as Subpart F. 2. Form 1118, Foreign Tax Credits If DC is required to include FC s income as a deemed dividend under Subpart F, it may consider claiming foreign tax credits for foreign taxes deemed paid on the Subpart F earnings by filing Form The amount is reported on Form 1118, Schedule A, and DC will have to show the supporting earnings and foreign tax information on Form 1118, Schedule C. A recent change to Form 1118 could affect taxpayers in situations similar to DC. Schedule K, Foreign Tax Carryover Reconciliation Schedule, has been added to the form. The Schedule was introduced in 2009 to allow the IRS to keep track of foreign tax carryovers of the taxpayer. 118 The schedule is filed separately for each separate category of income and is attached to Form Schedule UTP Certain corporations that have assets that equal or exceed $100 million and that have issued audited financial statements reporting the corporation s operations for the taxable year may be required to disclose certain tax positions on the new Schedule UTP and attach the schedule to its corporate income tax return (1120 for DC and 1120-F for FC). 120 The assets threshold for corporations that may be required to complete a schedule UTP will be reduced to $50 million for 2012 and to $10 million beginning in A particular tax position is required to be reported on schedule UTP if the corporation or a related party has recorded a reserve with respect to such tax position in its audited financial statements, or if the corporation did not record a reserve for the tax position because the corporation expects to litigate the position. 122 The taxpayer will be required to rank all of the reported tax positions based on January-February

8 the amount of reserves (including interest and penalties) recorded for the position taken in the return. 123 Any position the reserve of which exceeds 10 percent of the amount of the total reserves must be specifically designated to the attention of the IRS. 124 Given the uncertainties surrounding various aspects of the analysis of the tax exposures and the resulting compliance obligations, taxpayers may be required to record a reserve on tax positions relating to cloud business operations and transactions. In light of the lowered asset threshold starting in 2012 and 2014, Schedule UTP may apply to more and more corporations and create an additional layer of compliance obligations for taxpayers. Conclusion Cloud-based businesses are developing new and innovative business models that were not contemplated when most of the existing guidance on software-based transactions was written. For example, the software regulations of Treas. Reg gave little attention to the provision of services using computer software. The regulations really only address services in the context of software development services. Taxpayers operating in the cloud face uncertainty in determining the appropriate compliance obligations due to the age of existing guidance on software-based transactions, the facts-based nature of the technical issues, and the lack of clear guidance on how traditional tax principles are to be applied in the context of a cloud businesses. This may be even more difficult for U.S. multinationals with foreign subsidiaries that enter into cloud computing transactions cross-border. Given the level of uncertainty involved in the analysis, taxpayers with foreign subsidiaries operating in the cloud should carefully analyze their facts in the context of what little guidance exists regarding the character of software transactions, whether such transactions rise to the level of a U.S. trade or business, and whether such activities rise to the level of a PE. Those technical determinations will then drive the reporting and compliance obligations for the cloud-based business operations of U.S. taxpayers foreign subsidiaries. James Carr is a partner in KPMG LLP s Silicon Valley office in Santa Clara, California. Serving clients in the technology sector, Mr. Carr focuses on international tax matters, including transfer pricing issues, international structuring, intangibles planning, withholding taxes, advance pricing agreements, international financing, foreign tax credit planning, international market entry/expansion, international supply chain management, and international trade and customs. Mr. Carr has been with KPMG for 19 years. He received both a B.S. degree in Commerce and an M.S. degree in Accounting from the University of Virginia. His address is jamescarr@kpmg.com. Jason Hoerner is a principal in KPMG LLP s Silicon Valley office in Santa Clara, California, and has been with the firm since Mr. Hoerner is responsible for advising multinational companies on outbound and inbound tax related issues, including international structuring, withholding taxes, transfer pricing, cross-border financing, foreign tax credit planning, and intangible property planning. He serves clients in the technology, manufacturing, and services sectors. Mr. Hoerner received an LL.M. in Taxation from New York University, a J.D. degree from University of Washington, and a B.A. degree from Williamette University. His address is jhoerner@kpmg.com. Shirish Rajurkar is a director in KPMG LLP s Silicon Valley office in Santa Clara, California. Mr. Rajurkar has advised large multinational companies for 14 years in a variety of industries, including the software, semiconductor, financial services, manufacturing, and services sectors; the subjects of his advice include international structuring, intangible planning, transfer pricing issues, withholding taxes, foreign tax credit planning, and domestic production deduction. Mr. Rajurkar received a B.S. degree in Business Administration from Norfolk State University. His address is smrajurkar@kpmg.com. Chanin Changtor is an associate in KPMG LLP s Silicon Valley office in Santa Clara, California. He joined KPMG in 2010 and provides international compliance and consulting services to clients in the Bay Area and Silicon Valley. He has experience with various aspects of U.S. taxation of cross-border transactions, including the areas of operational restructuring, corporate reorganization, and mergers and acquisitions. Mr. Changtor received an LL.M. degree in Taxation from Georgetown University, a J.D. degree from University of California at Davis School of Law, and a B.A. degree from Amherst College. His address is cchangtor@kpmg.com. The authors thank Thomas Zollo, a principal with KPMG LLP s Washington National Tax office, for his insightful comments on an earlier version of this article. 1. Brown, Peter, Cloud Computing: The Business of SAAS, PAAS, and IAAS, 1055 PLI/Pat 343 (2011). 2. U.S. Department of the Treasury, Office of Tax Policy, Selected Tax Policy Implications of Global Electronic Commerce (Nov. 1996) [hereinafter the Treasury White Paper] at I.R.C. 11 (a corporation is subject to income tax on its taxable income), 63(a) (taxable income is defined as gross income minus deductions allowed under the Internal Revenue Code); see I.R.C. 61(a) (gross income is defined as all income from whatever source derived). 4. I.R.C I.R.C. 881(a). 6. Id. 7. Id. 8. I.R.C..882(a). 9. I.R.C Foreign corporations conducting business within the U.S. through a branch operation are subject to a tax of 30 percent under section 884 when the earnings and profits attributable to the branch are withdrawn from the branch. 10. See I.R.C. 864(b). 11. Id. 12. Treas. Reg (e); Rev. Rul. 88-3, C.B. 268, See Pinchot v. Commissioner, 113 F.2d 718, 719 (2d Cir. 1940); Spermacet Whaling & Shipping Co. v. Commissioner, 30 T.C. 618, 634 (1958). 14. Inez de Amodio v. Commissioner, 299 F.2d 623 (3d Cir. 1962). See also Commissioner v. Balanovski, 236 F.2d 298 (2d Cir. 1956) (a taxpayer s solicitation of orders, inspection of merchandise and purchase and sale 36 The Tax Executive

9 of merchandise constituted a U.S. trade or business). 15. See e.g., Lewenhaupt v. Commissioner, 20 T.C. 151 (1953) (Swedish resident gave a U.S. agent authority to buy and sell real property, execute leases, collect rents, etc., on his behalf, which rose to the level of a trade or business in the U.S. because the activities were considerable, continuous, and regular). 16. See Inverworld, Inc. v. Commissioner, T.C.M. (CCH) 3231, 1996 Tax Ct. Memo LEXIS 291 at *83-85 (1996) (U.S. subsidiary of a foreign parent corporation was found to be a dependent agent because it acted almost exclusively for the foreign parent principal, performed most of its work for the foreign parent principal, did not market itself to unrelated parties and consistently earned more than 90 percent of its income from parent principal). 17. Handfield v. Commissioner, 23 T.C. 633, 637 (1955) (foreign person that manufactured postal cards in Canada and sold them in the U.S. through an independent distributor held to have U.S. trade or business because the terms of the agreement between the parties indicated the distributor was the foreign person s agent and its activities were continuous, regular, and substantial); De Amodio v. Commissioner, 34 T.C. 894, 905 (1960), aff d, 299 F.2d 623 (3d Cir. 1962) (Swiss nonresident alien was found to have engaged in U.S. trade or business because his agents looked for and managed investment real properties on his behalf). 18. See I.R.C. 881(a), 882(a). 19. I.R.C. 864(c)(3); Treas. Reg See I.R.C. 864(c)(2); Treas. Reg (c)(2)(i), (3)(i). 21. I.R.C. 864(c)(4); 864(c)(5). 22. See Treas. Reg Treas. Reg (d). 24. Treas. Reg (b)(2). 25. I.R.C. 957(a) (a controlled foreign corporation is defined as any foreign corporation if more than 50 percent of the total combined voting power of all classes of stock or the total value of the stock of such corporation is owned by U.S. persons that hold, directly, indirectly, or through attribution, at least 10 percent of the voting power of such corporation). 26. I.R.C..952(b) U.S. Model Treaty, Art. 1(1). 28. Id. Art U.S. Treasury Technical Explanation to the 2006 U.S. Model Treaty, Art U.S. Model Treaty, Art. 7(1). 31. Id., Art. 5(1). 32. Id., Art. 5(2). 33. Id., Art. 5(4). 34. Id., Art. 5(5). 35. Id., Art. 5(6). 36. U. S. Treasury Technical Explanation to the 2006 U.S. Model Treaty, Art Taisei Fire & Marine Insurance Co. Ltd. v. Commissioner, 104 T.C. 535 (1995) (U.S. subsidiary that was authorized by its Japanese parent insurance to act as an agent of the company for purposes of underwriting insurance policies qualified as an independent agent because the U.S. subsidiary was legally and economically independent to the extent it was not subject to comprehensive control by the Japanese parent and bore entrepreneurial risk). 38. Id. 39. Treas. Reg (d)(3)(iii); Inverworld, Inc. v. Commissioner, T.C. Memo (1996) (U.S. subsidiary of a foreign parent corporation was found to be a dependent agent because it acted almost exclusively for the foreign parent principal, performed most of its work for the foreign parent principal, did not market itself to third parties and consistently earned more than 90 percent of its income from parent principal). 40. Treas. Reg (b)(1). 41. Id.; see Treas. Reg (c), (d) & (e). 42. Treas. Reg (c)(2). 43. Treas. Reg (g)(3). However, in the preamble to the regulations, the Internal Revenue Service said it may follow copyright law regarding these rights. See T.D. 8785, 63 Fed. Reg. 52,971, 52,974 (1998). 44. Treas. Reg (c)(1). 45. Treas. Reg (c)(3). The copy may be fixed in any medium. Id. 46. Treas. Reg (f)(2). 47. Id. 48. See generally Treas. Reg (h). 49. See, e.g., id., Exs. 8 & See, e.g., id., Exs A recent case law that applied these factors is Tidewater v. United States, 565 F.3d 299 (5th Cir. 2009). The court held that the particular transaction involving time in time-chartered vessels where the customer had (i) physical possession of the property, (ii) control of the property, and (iii) exclusive use of the property, should be treated as a lease by applying the factors listed under section 7701(e). 52. See, e.g., 565 F.3d at I.R.C. 861(a)(3), 862(a)(3) F.2d 260 (5th Cir. 1942). 55. Id. at Id. 57. For example, in the context of software royalties that are sourced to place of use of the underlying copyrights, there is an issue whether place of use is the location of software duplication or where the product is consumed. See e.g., Field Service Advice (February 26, 2001). Prior to FSA , IRS rulings on the sourcing of income from sales of copyrighted articles focused on the place where such products were consumed and where the copyright was legally protected (in contrast to where the products were produced). See e.g., Rev. Rul , C.B F.2d at See, e.g., Tipton & Kilbach, Inc. v. United States, 480 F.2d 1118, 1120 (10th Cir. 1973). 60. Treasury White Paper, at Id. 62. I.R.C. 864(b). 63. Treas. Reg (g)(1). 64. See Treas. Reg (g); Form 1120-F Instructions at I.R.C. 882(c)(1)(A), (c)(2); Treas. Reg (a)(1), (2). 66. Id. 67. Treas. Reg (a)(3)(vi). See also Swallows Holdings v. Commissioner, 515 F.3d 162 (3rd Cir. 2008) (holding that Treasury has authority to issue regulations relating to the timing of when a taxpayer is required to file a tax return to claim deductions). January-February

10 68. Form 1120-F Instructions, at Treas. Reg (g)(1)(i). 70. Form 1120-F Instructions. 71. Treas. Reg (g)(1)(i). 72. Treas. Reg (g)(1)(iii). 73. Treas. Reg (a). 74. Treas. Reg (b). Taxpayers may file Form 7004 to apply for an automatic six-month extension of time to file an income tax return. Form 7004 must be filed on or before the due date of the applicable tax return required for the return to be valid. 75. I.R.C. 6038A(d), 6038C(c). 76. Treas. Reg (a)(2). 77. I.R.C. 6038C(b). Section 6038C imposes a record maintenance requirements by reference to the provisions of section 6038A(b) and related regulations. 78. Treas. Reg A-3(c)(2). 79. Treas. Reg A-4(a)(3). Section 6038C(c) imposes a penalty on failure to maintain sufficient records by reference to the penalty provisions of section 6038A. 80. Treas. Reg A-7(a) U.S. Model Treaty, Art. 22(1). 82. Id., Arts. 22(2)-(4). 83. Id., Art. 22(4). 84. Id., Art. 7(1). 85. The Treasury Department has previously expressed its opinion on certain tax issues that conflict with the approach taken by the OECD. See, e.g., Treasury White Paper, at 26. Nonetheless, given that the U.S. Advisory Commission later released a report recommending that Congress affirm support for the principles of the OECD s framework conditions for taxation of e-commerce, Treasury may defer to the OECD to promote conformity and global cooperation. Advisory Commission on Electronic Commerce, Report to Congress 42 (Apr. 2000). 86. OECD, Clarification on the Application of the Permanent Establishment Definition in E-Commerce: Changes to the Commentary on Article 5 (Dec. 22, 2000). 87. Id. at Id. 89. Id. at Id. at 4-5. The implications that this may have for the U.S. trade or business determination were discussed previously. The threshold for a U.S. trade or business is generally thought to be lower than that for a PE. Any OECD commentary, of course, would not be a binding interpretation of U.S. law. 91. Treas. Reg (g)(1)(i). 92. Form 1120-F, Instructions, at 2 (2010). 93. Treas. Reg (g)(1)(i). 94. Form 1120-F, Instructions, at 2 (2010). 95. Form 1120-F, Instructions, at See generally OECD, Attribution of Profit to a Permanent Establishment Involved in Electronic Commerce Transactions (Feb. 2001). 97. Form 1120-F, Instructions, at. 19. Certain U.S. income tax treaties expressly provide the right to apply OECD profit attribution principles and transfer pricing guidelines. As of 2011, treaties containing this provision include treaties between the United States and the United Kingdom, Japan, Germany, Belgium, Canada, Bulgaria, and Iceland. Id. 98. Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, Instructions, at 1 (2011); Form 1042-S, Foreign Person s U.S. Source Income Subject to Withholding, Instructions, at 1-2 (2012). 99. Id Id Form W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding, Instructions (2006) Treas. Reg (a)(1)(i) Id Treas. Reg (a)(1)(ii) Form 1099-MISC, Miscellaneous Income, Instructions (2012), at 1. Failure to file the return can result in penalties ranging between $30-$100 per information return, with a maximum penalty of $1,500 per taxable year. General Instructions for Certain Information Returns (2011), at Form 1099-MISC, Instructions, at 2. Payments to corporations that must be reported on Form 1099-MISC include: medical and health car payments, fish purchase for cash, attorney s fees, gross proceeds paid to an attorney, substitute payments in lieu of dividends or tax exempt interest, and payments by a federal executive agency for services. Id Id I.R.C. 11, 61 & Treas. Reg (a)(1) I.R.C. 6038(a)(1) I.R.C. 951(a)(1) Treas. Reg (b) (1) (iv) See Treas. Reg (b) (2) (ii)(a) Notice , I.R.B Treas. Reg (b)(2)(ii)(a); see Notice Treas. Reg (b)(2)(ii)(c) I.R.C. 952(b) Form 1118, Schedule K, Foreign Tax Carryover Reconciliation Schedule, Instructions, at 1 (2009) Id Schedule UTP, Instructions, at 1 (2010) Announcement , I.R.B Schedule UTP, Instructions, at 1 (2010) Id. at Id. at 4. January-February