Avoiding U.S. Investment Tax Traps

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1 Avoiding U.S. Investment Tax Traps Structuring Real Estate and Other Fund Investments Presented by: Joseph Gulant and Daniel Blickman

2 Major Categories of Tax to Consider in Planning International Transactions Step 1: Cash investment in stock or debt Transaction Tax, if any Foreign Corp. (Cayman Islands) Step 3: Foreign country corporate tax Repatriation Tax Dividends or interest; U.S. Withholding Tax Repatriation Tax U.S. Corp. Operating income Step 2: U.S. corporate income tax Operational Tax

3 Major Categories of Tax to Consider in Planning International Transaction (con t.) Exit Tax in U.S., if any, and/or Foreign Country Foreign Corp. Step 4: Stock of U.S. Corp. Cash Buyer U.S. Corp.

4 I. Portfolio Investing (FDAP; Non-ECI) Foreign Corp. Foreign Corp. Cash investment in stock or debt Dividends or interest Contract Rent, royalties, payments for services, etc. U.S. Corp. U.S. Corp. The technical term for portfolio income is fixed or determinable annual or periodical income, profit, or gains (FDAP).

5 II. Trade/Business Investing (ECI) Foreign Corp. Foreign Corp. Foreign Corp. U.S. Branch (U.S. T/B) U.S. Partnership (U.S. T/B or U.S. Real Estate) U.S. Real Estate The technical term for income effectively connected with a U.S. trade or business is ECI (effectively connected income).

6 Portfolio Investing Tax Reporting Foreign Corp. Foreign Country corporate income tax Provides Form W-8 Equity or debt Dividends or interest, net of WH Tax; and Form 1042-S U.S. Corp. WH Tax and Forms 1042 and 1042-S IRS Operating income U.S. Corporate income tax

7 Portfolio Investing Tax Reporting (con t) Foreign Corp. Stock of U.S. Corp. Cash Buyer U.S. Corp. Generally no Exit Tax in U.S. on capital gains.

8 Trade/Business Investing Tax Reporting IRS Foreign Corp. files U.S. tax return and pays U.S. branch profits tax Dividend equivalent Foreign Corp. No foreign tax? Foreign Gov t No foreign tax? Foreign Corp. Distributions of dividend equivalent Foreign Corp. files U.S. tax return and pays U.S. corporate income tax and branch profits tax IRS IRS Foreign Corp. files U.S. tax return and pays U.S. corporate income tax U.S. Branch or U.S. Real Estate (U.S. T/B) Operating Income Partnership Partnership Withholding U.S. T/B IRS Operating Income

9 Trade/Business Investing Tax Reporting (con t) IRS Foreign Corp. files U.S. tax return and pays U.S. corporate income tax on gain Foreign Corp. U.S. Branch Assets/ U.S. Real Estate/ U.S. Partnership Interest Cash Buyer U.S. Branch U.S. Real Estate Partnership U.S. T/B Gain on sale of the U.S. T/B will not be subject to the Branch Profits Tax if Foreign Corporation terminates its U.S. T/B activities in year of sale

10 Joint Venture U.S. Blocker Corporation Structure Foreign Corp. Use of U.S. blocker corporation turns ECI into FDAP at the border with respect to foreign corporation. WH Tax responsibility falls on U.S. blocker corporation, not on U.S. partnership. U.S. Blocker Corp. Operating income U.S. Partnership with U.S. Branch or U.S. Real Estate U.S. Partner

11 Foreign Investor in U.S. Fund A Typical Structure Foreign Corp. U.S. Investors Share of dividends or interest from U.S. Portfolio Corporation is FDAP to Foreign Corporation. U.S. blocker corporation required to turn ECI into FDAP with respect to Foreign Partnership for Fund s investment in U.S. Portfolio Partnership. U.S. Portfolio Corporation U.S. T/B (other than primarily holding real estate) U.S. Fund U.S. T/B U.S. Blocker Corp. U.S. Portfolio Partnership

12 Typical Structure for Offshore Fund Investing in U.S. Portfolio Companies Cayman Islands Fund must invest in U.S. Portfolio Partnership through U.S. blocker corporation to avoid ECI from this investment; Investment in U.S. Portfolio Corporation is FDAP. Foreign Corp. U.S. Portfolio Corporation Cayman Islands Fund Other Investors (e.g., U.S. tax exempts) U.S. Blocker Corp. U.S. Portfolio Partnership

13 Lending Funds Foreign Corp. Cayman Islands Fund Loans purchased on secondary market Not engaged in a U.S. T/B FDAP income Generally no WH Tax under Portfolio Interest exemption Loans originated by Fund May be U.S. T/B If U.S. T/B, income is ECI Fund subject to U.S. corporate net income tax and branch profits tax

14 Varieties of IRS Form W-8 Form W-8BEN Form W-8IMY Foreign Individual No Form W-8 Foreign Corp or Foreign Individual U.S. Partner Foreign Corp. Form W-8BEN Form W-8ECI Swiss Bank Corporation U.S. Withholding Agent Foreign Individual Form W-8BEN Form W-8BEN Foreign Partnership U.S. Withholding Agent Form W-9 Form W-8IMY, accompanied by Form W-8BENs and Form W-9s from partners Form W-8ECI U.S. Branch U.S. Withholding Agent (Borrower)

15 Tax Planning For Investments In U.S. Basic Considerations U.S. Estate and Gift Tax U.S. and Foreign Income Tax Considerations Income Tax Filing Obligations

16 Tax Planning For Investments In U.S. Planning for the U.S. Estate/Gift Tax Form of Inheritance Taxes Separate and Apart from Income Taxes General Rule: U.S. situs property held by U.S. nonresident alien at time of death is subject to U.S. estate tax Rates currently up to 45% (subject to legislative change) Results may also be changed by Tax Treaties What types of property are subject to U.S. estate tax? U.S. real property Stock in U.S. corporations and debt obligations issued by U.S. corporations Interests in U.S. investment funds (partnerships) if partnership holds U.S. property Other Nonqualified deposits Partnership Interests?

17 Tax Planning For Investments In U.S. Planning for the U.S. Estate Tax What types of property are not subject to U.S. estate tax? Stock in foreign corporations Most deposits in U.S. financial institutions Deposits in Non-U.S. financial institutions Debt Instruments of U.S. persons eligible for portfolio interest exemptions Other

18 Estate/Gift Tax Planning For Investments In U.S. Treatment of Partnership Interests For U.S. Estate Tax Purposes Treatment unclear Intangible Asset Aggregation or Separate? IRS position (Revenue Ruling ): situs for estate tax purposes is where partnership is doing business Risk of Estate Taxation Transfers of Intangible Property generally not subject to U.S. Gift Tax IRS will not rule on taxability of transfers of partnership interests by Nonresident Aliens for Gift Tax purposes Transfers of Partnership Interests prior to death may avoid U.S. Estate and Gift tax TAX TRAP: Transfers of Partnership Interests with Liabilities in Excess of Tax Basis

19 U.S. Estate/Gift Tax Considerations (cont.) How to minimize risk of U.S. Estate/Gift Taxation? Invest in U.S. through non-u.s. blocker corporation Ownership interest in foreign corporation is not U.S. property for U.S. Estate and Gift tax purposes

20 Basic Income Tax Considerations Nonresident Aliens generally subject to income tax on two types of income: Fixed or Determinable Annual or Periodic Income ( FDAP ) Types (wages, interest, dividend, rents, royalties, etc.); Must be derived from U.S. sources; and Generally subject to withholding (by paying agent) at 30% (subject to reduction under tax treaties). Withholding on Gross Income Income Effectively Connected with a U.S. Trade or Business ( ECI )

21 U.S. Effectively Connected Income What is U.S. ECI? Whether a taxpayer is engaged in a U.S. trade or business is based on facts and circumstances Activities must generally be regular and continuous Key Distinction: business activities of a partnership will be attributed to the partners Tax return filing obligations and income tax withholding by U.S. partnerships

22 U.S. Effectively Connected Income What is U.S. ECI? Treaty protections if no permanent establishment in U.S., but special rules apply to real estate (generally allowed to be taxed under most tax treaties) Key Distinction: Income and Gains from sales of stock and securities for own account or sales through brokers or commission agents are not treated as ECI under Section 864 of the Code Includes income from Investment Partnerships

23 Capital Gain Income Treatment of Capital Gains Under U.S. income tax law, capital gains from U.S. investments are generally not subject to U.S. income tax or withholding tax unless: recipient is in U.S. for 183 days or more in taxable year in which earned Key Distinction: Under the Foreign Investment In United States Real Property Tax Act ( FIRPTA ), capital gains from the sale of U.S. real property will automatically be treated as U.S. ECI and will be taxable in the U.S.

24 Special Considerations Investment In U.S. Real Estate Rents earned by U.S. nonresident alien may be subject to 30% withholding tax on Gross Income No deductions for operating expenses, depreciation, interest expense, etc. If arrangement is U.S. ECI, then nonresident alien taxed on net income Section 871(d): Special election to treat real estate rental income as ECI

25 Special Considerations Investment In U.S. Real Estate If made, Section 871(d) election will allow Nonresident alien to be taxed on net basis Nonresident alien will need to file income tax returns in the U.S. (Form 1040-NR) in order to be taxed on a net basis and satisfy other requirements (e.g., W-8 ECI) As capital gains from sale will generally be subject to FIRPTA tax in U.S. in any event, Section 871(d) election will not impact status of property gains as taxable in the U.S.

26 What types of property are subject to FIRPTA? United States Real Property Interests Includes: Direct ownership interests in real property Interests in U.S. Corporations where more than 50% of assets are U.S. real property interests Interests in U.S. partnerships (to the extent that assets are made up of U.S. real property interests) Interest in U.S. Real Estate unless solely in status as a creditor Debt obligation of U.S. borrower with equity kicker will likely be treated as U.S. Real Property Interest

27 What types of property are not subject to FIRPTA? United States Real Property Interests do not include: Interests in domestically controlled REIT < 50% foreign ownership Ownership interests in certain U.S. corporations 5 Year Rule on Complete Dispositions < 5% ownership interests in publicly traded corporations Ownership Interests in Foreign Corporations Planning to avoid FIRPTA Insurance Wrapped Investments

28 U.S. Effectively Connected Income What if a Foreign Corporation has U.S. ECI? Foreign corporation will be subject to tax on a net basis Taxed at rates up to 35% Foreign corporation will also be subject to second level of income tax (the so-called Branch Profits Tax )

29 U.S. Effectively Connected Income What if a Foreign Corporation has U.S. ECI? Branch Profits Tax is generally imposed on net profits not reinvested in the U.S. trade or business, regardless of whether distributed, at a 30% tax rate (subject to treaty reduction) Branch Profits Tax generally equates to withholding tax on dividends if foreign corporation were operating through a U.S. subsidiary Avoidance of Branch Profits Tax on Sale Complete Dispositions of U.S. Real Property Interests

30 U.S. Income Tax Filing Considerations If U.S. Sourced FDAP income or U.S. ECI, then income tax filing obligations in United States (Form 1040-NR and other forms to claim Treaty benefits, if applicable) Individuals must obtain U.S. taxpayer identification numbers to file returns Loss of anonymity May be non-starter for many non-u.s. tax residents

31 U.S. Income Tax Filing Considerations How to eliminate U.S. income tax filing obligations? Use Foreign Corporations as blocker corporations to hold U.S. investments Blockers usually formed in low or no tax jurisdictions (Cayman Islands, Bermuda, British Virgin Islands, etc.)

32 U.S. Income Tax Filing Considerations (cont.) Filing obligations for income taxes, if applicable, may include state and local income tax returns

33 Advantages/Disadvantages of Advantages: Blocker Corporations Retain anonymity Eliminate U.S. Estate/Gift Tax Issues Always should review situation in home jurisdictions Disadvantages: Income Tax Inefficiencies Direct ownership would generally be the most tax-efficient approach (one level of tax, capital gain rates preservation) Corporate ownership generally creates two levels of tax, subject to special tax planning strategies

34 Structures for Minimizing Income Tax Inefficiencies of Blocker Corp. Cash investment in stock and debt (60/40 Debt/Equity Ratio) Foreign Corp. (No local tax on dividend distributions repatriated to Foreign Corp.) Dividends or interest; U.S. Withholding Tax Repatriation Tax U.S. Corp. Operating income -No withholding tax on principal payments U.S. corporate income tax Operational Tax (reduced by interest expense)

35 Portfolio Interest Exception 0% WH Tax Form W-8 Debt in registered form Foreign Corp. Portfolio Interest U.S. Corporation 0% WH Tax on Portfolio Interest. Portfolio Interest: registered form debt instrument; interest must not be contingent; must receive Form W-8; does not apply to: 10% owners; interest paid to banks in the ordinary course; or interest paid to CFCs by a related person

36 Inbound Investments in U.S. Real Estate Foreign Corp. A Foreign Corp. B U.S. Blocker Corp. 1 U.S. Real Estate Venture 1 U.S. Blocker Corp. 2 U.S. Real Estate Venture 2 U.S. Blocker Corp. 3 U.S. Real Estate Venture 3 U.S. Sub 1 U.S. Real Estate Venture 1 U.S. Holding Corp. U.S. Sub 2 U.S. Real Estate Venture 2 U.S. Sub 3 U.S. Real Estate Venture 3

37 Inbound Investments in U.S. Real Estate (con t) No U.S. Holding Corp. Con: Profits and losses on separate ventures cannot offset each other to reduce U.S. Operational Tax Pro: As each venture is sold, each U.S. Blocker Corp. can liquidate without U.S. WH Tax (no Repatriation Tax in U.S.) More likely to be used if ventures expected to be repatriated at different times U.S. Holding Corp. Pro: Profits and losses on separate ventures can offset each other within U.S. consolidated tax return Con: As each venture is sold, repatriation of proceeds may be subject to U.S. WH Tax More likely to be used for portfolio of assets with longer expected holding periods

38 Tax Treaties Anti-Abuse Rules on Treaty Shopping Less Favorable or No Treaty Benefit, if transaction done directly between Country A and U.S. (15% WH Tax) Foreign Corp. (Country A) Foreign Corp. (Country B) Favorable Treaty Provision (0% WH Tax) Intermediary Corporation Inserted for Treaty Provisions Favorable Treaty Provision (0% WH Tax) U.S. Corporation Anti-abuse rules in U.S. Tax Treaties generally prevent treaty shopping. Code and Treasury Regulations contain more anti-abuse rules (Section 884(f); Treasury Regulations Section anti-conduit regulations; Section 894).

39 Interest Stripping Rules Code Section 163(j) Foreign Corporation $1 MM interest $2 MM equity $8 MM 12.5% Taxable Income $1,000,000 (pre-interest) Interest paid $1,000,000 Interest Deduction (500,000) Net Taxable Income $ 500,000 U.S. Corporation Operating Income $1 MM U.S. Corporation earns $1 MM of taxable income (before interest expense) for the taxable year. U.S. Corporation pays $1 MM of interest to Foreign Corporation (i.e., $8 MM x 12.5% = $1 MM). Code Section 163(j) limits interest deduction for U.S. Corporation to $500K. Formulation of rules generally allows financial institutions not to be affected insofar as rules are directed at interest expense net of interest income and financial institutions have large amounts of interest income.

40 Summary Taxes at Issue Transaction, Operational, Repatriation, Exit Goals Avoid double taxation Tax deferral Reduce overall tax liability Withholding Tax Responsibility Tax filings and information reporting Practicalities Clients generally want to achieve these goals with simplest possible structures substantial tax savings needed for toleration of tax planning extras Need to work with foreign tax and corporate counsel to co-ordinate tax rules in each country Very complicated area of the law, but general uniformity in basic concepts almost everywhere

41 To learn more Daniel R. Blickman Business Tax, Philadelphia Joseph T. Gulant Business Tax, Philadelphia & New York

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