Controlled Foreign Corporation - United States Subpart F Rules

United States Subpart F Rules

Enacted in 1962, these rules incorporate most of the features of CFC rules used in other countries. Subpart F was designed to prevent U.S. citizens and resident individuals and corporations from artificially deferring otherwise taxable income through use of foreign entities. The rules require that:

• A U.S. Shareholder
• of a Controlled Foreign Corporation ("CFC")

must include in his/its income currently his/its share of Subpart F Income of the CFC and his/its share of earnings and profits ("E&P") of the CFC that are invested in

• United States Property,

and further exclude from his/its income any dividends distributed from such previously taxed income.

Each of the capitalized terms above is defined:

• A Controlled Foreign Corporation is any corporation organized outside the U.S. (a foreign corporation) that is more than 50% owned by U.S. Shareholders.
• A U.S. Shareholder is any person (individual or entity) that owns 10% or more of the foreign corporation. Complex rules apply to attribute ownership of one person to another person.
• United States Property specifically includes obligations of or investments in related parties, tangible property with a physical situs in the U.S., and stock of a domestic corporation. It does not include bank deposits or obligations of unrelated persons.

Subpart F income includes the following:

• Foreign Personal Holding Company Income (FPHCI), including dividends, interest, rents, royalties, and gains from alienation of property that produces or could produce such income. Exceptions apply for dividends and interest from related persons organized in the same country as the CFC, active rents and royalties, rents and royalties from related persons in the same country as the CFC, and certain other items.
• Foreign Base Company Sales Income from buying goods from a related party and selling them to anyone or buying goods from anyone and selling them to a related party, where such goods are both made and for use outside the CFC's country of incorporation. A branch rule may cause transfers between a manufacturing branch of a CFC in one country and a sales branch in another country to trigger Subpart F income.
• Foreign Base Company Services Income form performing services for or on behalf of a related person. A substantial assistance rule can cause services performed for unrelated parties to be treated as performed for or on behalf of a related party.
• Foreign Base Company Oil Related Income from oil activities outside the CFC's country of incorporation.
• Insurance Income from insurance or annuity contracts related to risks outside the CFC's country of incorporation.

but it does not include:

• items of income which (after considering deductions, etc., under U.S. concepts) were subject to foreign income tax in excess of 90% of the highest marginal U.S. tax rate for the type of shareholder;
• de minimis amounts of Subpart F income in absence of other Subpart F income in the period;
• such income if the CFC has a deficit in E&P, in which case it is deferred from recognition until the CFC has positive E&P.
• any dividend received which is considered paid from amounts previously taxed under Subpart F.

Corporate U.S. shareholders are entitled to a foreign tax credit for their share of the foreign income taxes paid by a CFC with respect to E&P underlying a Subpart F inclusion.

To prevent avoidance of Subpart F, U.S. shareholders of a CFC must recharacterize gain on disposition of the CFC shares as a dividend. In addition, various special rules apply.