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7SEPTEMBER–OCTOBER 2018 © 2018 CCH INCORPORATED AND ITS AFFILIATES. ALL RIGHTS RESERVED.

Choice Of Entity Corner S Corporations and the New International Tax Provisions of the TCJA

By Joseph E. Tierney III

O ver the course of the years, many of my clients have operated as S cor-porations. Where they have had international operations, my primary concern has been to make sure that their foreign subsidiaries are organized in the countries in which their principal manufacturing or production operations are located. In short, I’ve tried to be sure that these subsidiaries haven’t generated subpart F income. None of this has engaged choice of entity considerations.

But the new foreign tax provisions of the Tax Cuts and Jobs Act of 2017 (the “TCJA”) now very directly engage choice of entity issues. The purpose of this col- umn is to explore some of the implications of these provisions for S corporations and whether a domestic C corporation should be introduced into the group headed by an S corporation to hold the shares of controlled foreign corporations (“CFCs”).

Let’s use an example to work our way through these issues. Assume XYZ is an S corporation. It owns all the stock of several CFCs incorporated and operating in The Peoples Republic of Shangri-La. These entities have not generated subpart F income up to now because their principal production and sales operations are located in Shangri-La and they are incorporated in Shangri-La. We’ll assume that these CFCs have on November 5, 2017, and December 31, 2017, $10,000,000 of earnings and profits (“E&P”) that has not been taxed under subpart F and are not “effectively connected” to a U.S. trade or business.

So, how is XYZ affected by the provisions of the TCJA? The basic concept underlying the new law is the establishment of a territorial tax system. The key notion is that, in the future, earnings of our Shangri-La subsidiaries would be taxed only in Shangri-La, and when earnings are “repatriated” through dividends, those dividends will not be taxed in the United States.1 To achieve this, the TCJA created Code Sec. 245A. It establishes a 100% deduction for dividends received by a “specified shareholder” from the foreign source E&P of a foreign corporation (called the “participation deduction”). A “specified shareholder” is a domestic C corporation that owns 10% or more of a foreign corporation other than a “passive foreign investment corporation”—an exception I’ll ignore in this column. Code Sec. 246(c)(5) creates a holding period rule (366 days of a 731-day period hav- ing the ex-dividend date in the middle) that wouldn’t be a problem for us. But, unfortunately, this deduction is not available to S corporations or their shareholders.

To help pay for this new approach, under new Code Sec. 965, each 10% shareholder of a “specified foreign corporation” (generally, a CFC or a foreign corporation having a domestic corporation as a shareholder) having “deferred

JOSEPH E. TIERNEY III is a Shareholder of Meissner Tierney Fisher & Nichols S.C. in Milwaukee, Wisconsin.

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foreign income” (essentially, post-86 E&Ps that weren’t taxed under subpart F or “effectively connected” to a U.S. trade or business) must include in the shareholder’s 2017 return an amount equal to the shareholder’s pro rata share of “accumulated deferred post 1986 foreign income” of such corporations. These corporations are called “deferred foreign income corporations” (“DFICs”) in the statute. The required inclusion is through the mechanics of subpart F. In effect, the amount that is to be taxed under Code Sec. 965 becomes subpart F income included under Code Sec. 951. This inclusion is required of all types of shareholders of DFICs, including C corporations and S corporations, as well as individuals, partnerships and trusts. So, XYZ’s shareholders must pick up $10,000,000 as taxable income for 2017 through subpart F (specifically Code Sec. 951).

There are two ironies for my S corporation clients in this. First, all the good work done to make sure that their foreign subsidiaries did not generate subpart F income seems wasted because the shareholders of these corpora- tions must include all the deferred income accumulated over the course of the years in their respective 2017 tax returns—a feature shared with all other types of sharehold- ers of DFICs. Second, they won’t have the benefit of the participation dividend deduction going forward because the dividends that would otherwise constitute participa- tion dividends are taxable to S corporations—which is not the case for C corporation shareholders.

There are, however, three important relief provisions at work in Code Sec. 965, and one significant benefit from its application. Let’s start with the relief provisions. First, reduced tax rates are applicable. The rates are scaled down to 15.5% for the “cash position” of the foreign subsidiary corporations and 8% for other assets (the balance), and the foreign tax credit (to the extent available) is similarly scaled down. But this scale down is measured against the maximum corporate rate for 2017 (35%), and so, for S corporation shareholders, this translates to reduced rates of roughly 17.5% for cash assets and roughly 9.1% for non- cash assets.2 There are extensive provisions dealing with the distinction between a foreign corporation’s cash posi- tion and its non-cash assets. And notice that the “blocked currency” rules under Code Sec. 964(b) could operate to convert what are “cash assets” into “non-cash assets.”

Second, under Code Sec. 965(h), each taxpayer may elect an eight-year deferred payout of the tax attributable to the Code Sec. 965 inclusion (8% for each of the first five years, then 15% in the sixth year, 20% in the 7th year and 25% in the 8th year). See new Proposed Reg. §1.965-7(b) for details, including provisions for a “consent agreement,” a description of “acceleration events” that will terminate deferral, and an exception that will forestall acceleration for certain events

if there is a “section 965(h) eligible transferee” who signs a “transfer agreement.” Heads up estate planners; death is an acceleration event and the exception does not seem available.

Third, under Code Sec. 965(i), shareholders of S cor- porations may elect permanent deferral until a “triggering event.” The statute imposes joint liability for the deferred tax on the S corporation and requires annual reporting. The triggering events include (i) loss of S status (though reinstatement where the termination is inadvertent will apparently forestall the triggering event), (ii) sale of “sub- stantially all the assets” (presumably 70% of gross assets and 90% of net assets), liquidation of the S corporation or cessation of business, or ceasing to exist, or (iii) disposi- tion of stock, including by gift or death (inclusion is pro rata). Code Sec. 965(i)(4) goes on to say that upon any triggering event, the eight-year deferral under Code Sec. 965(h) can be elected, provided that, for a triggering event is described in (ii) above, the consent of the Commissioner will be needed. But Code Sec. 965(i)(2)(C) also provides an event described in number (iii) above, a disposition of stock, won’t be a triggering event if the transferee assumes the remaining net tax liability of the transferor.

Proposed Reg. §1.965-7(c) provides rules for the Code Sec. 965(i) permanent deferral election for S corporation shareholders. It provides the structure for the rules relat- ing to electing the eight-year deferral after a triggering event, requiring the filing of a “consent agreement” and specifies that, in the case of a triggering event described in (ii) above, filing this agreement automatically gives rise to the necessary IRS consent to use the eight-year deferral.

Proposed Reg. §1.965-7(c) also specifies rules under which a disposition of stock will not constitute a triggering event. What is required is an “eligible transferee” (someone other than a “domestic passthrough entity” such as a trust), and that transferor and eligible transferee file a “transfer agreement” with the Service. It specifies a form of “transfer agreement” to affect the assumption of the net tax liability, and makes clear that the transferor remains jointly and severally liable also. Again heads up estate planners: these new regulations give you just a 30-day window after the death of an S corporation shareholder to file the transfer agreement to preserve the permanent deferral election. But how the transfer agreement works in a death setting seems unclear.3

Notice also that the permanent deferral with respect to a particular DFIC will be available only if the S corporation has sufficient ownership of the DFIC that qualifies under Code Sec. 958(a); and if it does, then all of the DFIC’s income passing through to the S corporation (even income from domestic partnerships) will be protected by the elec- tion under Code Sec. 965(i). However, if the S corpora- tion is not a “U.S. shareholder” under Code Sec. 951(b),

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the permanent deferral election will not be available. For example, if the S corporation’s ownership of shares in the DFIC is entirely through a domestic passthrough entity (e.g., a domestic partnership) that is a U.S. shareholder of the DFIC, but its percentage interest in the domestic partnership pulls up less than 10% of the interest in the DFIC so that the S corporation itself will not be a “U.S. shareholder” of the DFIC, the domestic partnership’s K-1 will pass through income under Code Sec. 965(a) and deduction under Code Sec. 965(c) to the S corporation, but the 965(i) election will not be available to the S cor- poration’s shareholders with respect to that DFIC to defer the related tax. See Notice 2018-26, section 3.05(b) and the VIII. D. of the Preamble to the proposed regulations.4

Section 3.04(b) of Notice 2018-26 promised us regula- tions providing that any change in a non-corporate entity’s status under Reg. §301.7701-3 after November 2, 2017, will be disregarded in the application of Code Sec. 965 if it reduces the tax otherwise due under Code Sec. 965. Proposed Reg. §1.965-4(c)(2) fulfills this promise. This will be true even if the election would properly relate back to a date before November 5, 2017. However, suppose our S corporation acquires 100% of a C corporation on October 1, 2017 and which makes a QSub election on November 30, 2017 to be effective on October 1, 2017. This election shouldn’t be vitiated by this regulation because this election is not made under Reg. §301.7701-3, but rather under Reg. §1.1361-3.

As noted above, there is a significant benefit to the shareholders of our S corporation from the application of Code Sec. 965, which has otherwise caused them to endure inclusion of substantial accumulated deferred income (in our hypothetical, $10,000,000). These amounts (in effect all of the remaining foreign source E&P of these corporations) immediately become previously taxed E&P under Code Sec. 959.5 Thus, when XYZ does repatriate these earnings as distributions, they will not be included in gross income, not even as dividends.6 So, while our S corporation share- holders won’t have available the participation deduction under Code Sec. 245A, they will have protection for these distributions to our S corporation hereafter up to the total amount of the earnings brought into taxation by Code Sec. 965. This is true even though our S corporation shareholders may not pay the Code Sec. 965 tax for many years into the future because of their permanent deferral election under Code Sec. 965(i). Of course, once distributions from these foreign corporations to our S corporation have exceeded this amount, those distributions will be dividends and will give rise to tax at the shareholder level at the 23.8% rate.7

Moreover, under Code Sec. 961(a), all of the income taken into account by virtue of Code Sec. 965 adds to

the basis of the shareholders in their stock even though a portion of that income is deductible under Code Sec. 965(c). Under Code Sec. 965(f )(2), the deductible por- tion is treated as tax-exempt income under Code Sec. 1366(a)(1)(A) and Code Sec. 1367(a)(1)(A). Proposed Reg. §1.965-3(f )(2)(ii) confirms this. But S corporations that have had a prior C corporation life catch a break; the amount of the Code Sec. 965(c) deduction is not treated as “exempt income” under Code Sec. 1368(e)(1) and will therefore be added to the Accumulated Adjustment Account under Code Sec. 1368(e)(1)(A).8 See Code Sec. 965(f )(2)(B) and Proposed Reg. §1.965-3(f )(2)(ii) and (iii) which confirms this and give us an example.

Before we leave the subject of Code Sec. 965, there is an additional point to make regarding the Code Sec. 962 election. Code Sec. 962 provides an election that may be made by an individual to have his tax calculated on income coming to him under Code Sec. 951 (together with a gross- up of the foreign taxes paid by the CFC) at Code Sec. 11 rates (21% now) which would also give him the foreign tax credit available under Code Sec. 960. We’ll see that this election may be helpful in dealing with the GILTI tax for 2018 and subsequent years. But, if the includible amount under Code Sec. 965 is sizable, it may be very unwise to make this election for 2017. It is true that the 962 election would operate to reduce the effective rates of tax imposed under Code Sec. 965 on the shareholders by up to two percentage points.9 However, the Code Sec. 962 election would cause subsequent repatriation of these earnings to be taxed as dividends (hopefully) because of Code Sec. 962(d), thus vitiating the significant benefit provided to our S corporation shareholders under Code Sec. 959(a)(1)!

As we move on from Code Sec. 965, we will see that our travails as an S corporation are not ended. For 2018 and thereafter, we must contend with new Code Sec. 951A (the “GILTI” tax). Code Sec. 951A includes in the gross income of a 10% shareholder of a foreign corporation that is a CFC an amount defined as the CFC’s GILTI (essentially the shareholder’s pro rata share of the excess of (i) net foreign source taxable income earned by the owned foreign corporation, over (ii) a 10% return on the adjusted basis of business-related tangible personal property within these foreign corporations, determined under ADS (for XYZ, let’s say $100,000)). This tax is a big hit; for our S corporation shareholders, the tax is at 37%, and they will also have paid the foreign tax without credit, though they seem to be able to deduct those taxes.10 The only good thing here is that they end up with previously taxed E&P under Code Sec. 959.11

Code Sec. 951A(c)(2)(A)(i)(III) specifically excludes from “tested income” any income excluded from foreign

9SEPTEMBER–OCTOBER 2018 © 2018 CCH INCORPORATED AND ITS AFFILIATES. ALL RIGHTS RESERVED.

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base company income under Code Sec. 954(b)(4). That provision excludes income that the taxpayer establishes is taxed at not less than 90% of the Code Sec. 11 rate (“high-tax income”). Given the new Code Sec. rate (21%), the applicable rate is 18.9%, and we may well be able to establish that given Shangri-La’s corporate tax rate. Unfortunately, it appears that such “high-tax income” must be within foreign base company income before it can be excluded under Code Sec. 951A. If so, then this exception won’t help us. That would be too bad and inconsistent with the statutory purpose. Indeed, it sug- gests that XYZ might be better off if its CFCs re-organized in different countries so that its earnings in Shangri-La would be foreign base company income! For if its CFCs produced foreign base company income within Code Sec. 954(a), that income would be excluded both from subpart F income and from GILTI because of the application of Code Sec. 954(b)(4).12

So, what can be done about GILTI? Understand, if XYZ were a C corporation, GILTI would not be too serious a matter. That’s so because a C corporation U.S. shareholder is entitled to reduce GILTI by 50% (under new Code Sec. 250), is subject to a 21% base tax rate and can use the for- eign tax credit to the extent of 80% of the foreign taxes paid or accrued by the CFC on the GILTI. [If you have sales of U.S. manufactured goods abroad for use abroad, Code Sec. 250 also offers you an additional deduction of 37.5% for that income (called “foreign-derived intangible income”). But the deductions provided by Code Sec. 250 are apparently not available to S corporation shareholders. So there are two things you can do: (1) you can pitch the CFCs into a C corporation, or (2) elect Code Sec. 962 treatment.

As noted above, Code Sec. 962 provides an election that may be made by an individual to have his tax calculated on income coming to him under Code Sec. 951 (together with a gross-up of the foreign taxes paid by the CFC) at Code Sec. 11 rates (21% now) which would also give him the foreign tax credit available under Code Sec. 960. Presumably, an individual who is a shareholder of an S corporation can elect this treatment as to his pass-through income.13

Thus, our individual shareholder can apply Code Sec. 11 rates and the foreign tax credit is available to him. And he can make this choice year-by-year because this election is annual. However, the two deductions provided in Code Sec. 250 are not made available by the election and the previously taxed E&P treatment is likewise not available (see Code Sec. 962(d)). (I’ve been exposed to a contrary argument on Code Sec. 250 … that the 250 deductions would be available by reason of the Code Sec. 962 election, though that is not the consensus.) And, of course, the new

participation deduction under Code Sec. 245A will not be available with respect to the dividend treatment we hope that results from Code Sec. 962(d).14

But we may not care. Assuming we haven’t made the Code Sec. 962 election for 2017, the 21% rate and the foreign tax credit may be enough for two reasons. First, because our S corporation has the benefit of $10,000,000 of previously taxed E&P by reason of Code Sec. 965, the first $10,000,000 of corporate distributions from the CFCs will be exempt from tax under Code Sec. 959(a). Thus, the loss of previously taxed E&P treatment because of Code Sec. 962(d) for earnings in 2018 and subsequent years may be less important. In effect, XYZ may have covered its potential dividend needs for some time into the future given the stacking rules of Code Sec. 959(c). Appreciate that the regulations under Code Sec. 962 fol- low the same stacking rules as are imposed in Code Sec. 959(c). See Reg. §1.962-3(b). Second, given the relatively high rates of Shangri-La income taxes, the FTC may reduce the shareholder’s rate to very small numbers even without the deductions provided in new Code Sec. 250. Finally, use of the Code Sec. 962 election in 2018 or later years preserves direct use of the PTI account arising out of the Code Sec. 965 inclusion because the 962 election only applies to amounts included under Code Sec. 951 for the year of the election, and preserves our S corporation’s direct ownership of its CFCs.

I’m hearing that specialists in foreign tax are looking to create C corporation holding companies. In our setting, doing so should engage the successor rule contained in Code Sec. 959(a) and Reg. §1.959-1(d) with respect to XYZ’s $10,000,000 PTI account resulting from the Code Sec. 965 inclusion. So, when the CFCs distribute their earnings that have been previously taxed under Code Sec. 965 to the new holding company, the holding company can exclude them. But when the holding company, in turn, makes a distribution to XYZ out of amounts the holding company excluded under Code Sec. 959(a), is that distribu- tion a dividend? I don’t think Code Sec. 959(d) applies to protect XYZ, and I do think the excluded amounts received by the holding company add to its earnings and profits.

If we nonetheless do decide to use a C holding company to hold XYZ’s CFCs, we can simply create a new domestic subsidiary corporation and transfer the stock into it. But I’ve encountered resistance to this on the basis that doing so might have Shangri-La tax and regulatory implications. Where the CFCs are currently owned by a QSub, elimi- nating the QSub election would do the job.

On the other hand, it might be possible to restructure XYZ in what is being called an “S inversion” transaction,

Continued on page 52

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Entity Choice Continued from page 10

essentially an F reorganization in which the shareholders contribute their S corporation stock into a new holding company and file a QSub election so that the existing XYZ becomes a QSub of the new hold- ing company. In effect, the existing S election automatically migrates to the holding company.15 We could then move any of our domestic assets and operations into LLCs and distribute the interests in these LLCs up to the holding company so that existing XYZ holds only the CFCs, and then terminate the QSub election leaving existing XYZ as a C corporation holding only the CFCs. Presumably, all this could be treated as an “F Reorganization.” The new holding company would be the same S corporation but with a new EIN and the old EIN would remain with XYZ, now a C corporation.16

Recall our prior discussion of section 3.04(b) of Notice 2018-26, which tells us about coming regula- tions that will make classification elections under Reg. §301.7701-3 ineffective for purposes of Code Sec. 965 if made after November 5, 2017. These concepts were incorporated into Proposed Reg. §1.965-4 entitled “disregard of certain transactions.” I don’t think I care for two reasons: (i) the changes in the status of entities are being made by the QSub elec- tion, not under Reg. §301.7701-3, and (ii) more importantly, here I’m looking to put the holdings of our S corporation into a corpora- tion to reduce the GILTI tax, not to defeat Code Sec. 965 … there should be no effect on the Code Sec. 965 tax at all and no applica- tion for either 3.04(b) of the Notice or for Proposed Reg. §1.965-4. Moreover, there is no policy reason

for the Service to be grouchy about this transaction.

Finally, the new law creates a struc- ture that operates to tax “base erosion” and other abuses. It is set out in Code Sec. 59A. Here we do catch a break. This provision does not apply to S cor- porations or to other corporations that have less than a three-year average of annual gross sales of $500,000,000. No more need be said.

ENDNOTES 1 This, in turn, means that there won’t be a

foreign tax credit given for taxes paid by the subsidiaries in Shangri-La when those dividends are paid. The gross-up and credit structure embodied in Code Sec. 78 and Code Sec. 902 has been repealed. Indeed, Code Sec. 78 survives only to gross-up a subsidiary’s foreign taxes where subpart F causes the subsidiary’s income to be directly taxed to a domestic corporation, and Code Sec. 960(a) then permits a foreign tax credit for the domes- tic corporation. This, of course, won’t help XYZ, our S corporation, because XYZ is not treated as a corporation for purposes of subpart A (the foreign tax credit) and subpart F (controlled foreign corporations) under Code Sec. 1373.

2 The calculations are (i) for non-cash assets, 39.6/35 = 1.131 × 8% = 9.051% and (ii) for cash assets, 39.6/35 = 1.131 × 15.5% = 17.537%. The deduction that achieves this rate reduction is created in Code Sec. 965(c), and the IRS tells us in section 3.06 of Notice 2018-26 that regula- tions under Code Sec. 965(o) will provide that the Code Sec. 965(c) deduction will not be an itemized deduction for purposes of the 2% floor in pre-2018 Code Sec. 67, disallowance under post-2017 Code Sec. 67, and the AMT. Proposed Reg. §1.965-3(f )(1) confirms this.

3 Assume that death is the transfer event and that the personal representative or trustee is the transferee. Presumably, the personal rep- resentative or trustee would sign the transfer agreement on behalf of both the decedent (see Proposed Reg. §1.965-7(c)(3)(iv)(B)(3)) and the transferee. But there the music stops. Neither the personal representative nor the trustee can qualify as an “eligible transferee” because both the estate and the trust (even with a Code Sec. 645 election) are “domestic passthrough entities.” See Proposed Reg. §1.965-1(f )(19). This suggests that the Service contemplates that the “transfer” on death is not to the personal representative or trustee, but to whomever the S corporation stock is ultimately to be transferred. If so, what happens during admin- istration of the estate or trust? If the stock is to be transferred to a trust, will we be OK if it is a grantor trust? In this context, what is the effect of the grantor trust rules and Code Sec.

1361(c)(2)(A)(i) and 1361(d)(1)(A) making a QSST a grantor trust. Yipes.

4 I’m not sure why the same problem doesn’t exist with respect to the Code Sec. 965(h) eight-year deferral election. See Proposed Reg. §1.965-7(b)(1) which pointedly notes that the domestic pass-through entity must be a Code Sec. 958(a) shareholder for the domestic pass-through owner to have the (h) election available. In my example, the S corporation would not qualify. Ugh!

5 Given the election to defer payment of the tax liability created by the operation of Code Sec. 965 (called “net tax liability” in the statute) under subsections (h) and (i) of Code Sec. 965, it is hard to imagine that the benefits of exclusion under Code Sec. 959 are immediately available. But the mechanics are clear, Code Sec. 965(a) creates immediate inclusion in gross income and Code Sec. 959 provides the exclusion.

6 See Code Sec. 959(d). 7 This assumes that the dividends would be “qual-

ified dividends” under Code Sec. 1(h)(11)(B), which would be so if its foreign corpora- tions are “qualified foreign corporations” within Code Sec. 1(h)(11)(C)(i)(II). For that to be true, Shangri-La must have a qualifying tax treaty with the United States within Code Sec. 1(h)(11)(C)(i)(II). In that regard, see Notice 2011-64 for the latest list of countries with such treaties. Unfortunately, Shangri-La wasn’t listed in the Notice.

8 Id. That treatment is consistent with the treat- ment of tax-exempt income under Code Sec. 1368(e)(1)(A).

9 Because the Code Sec. 962 election would impose the Code Sec. 11 rates, our sharehold- ers would be taxed at 15.5% on cash balances rather than 17.5%, and 8% on non-cash bal- ances rather than 9.1%.

10 S e e t h e p a r e n t h e t i c a l i n C o d e S e c . 951A(c)(2)(A)(ii).

11 See Code Sec. 951A(f )(1)(A). 12 Really? See Code Sec. 951A(c)(2)(A)(i)(III) and

Code Sec. 954(b)(4). 13 The discussion of the Code Sec. 962 election

contained in Notice 2018-26 and the provi- sions in new Proposed Reg. §1.962-2(a) clearly imply this. See also the definitions of “domestic passthrough entity” and “domestic passthrough owner” contained in Proposed Reg. §1.965-1(f ) (19) and (20), and section 3.05(b) and the discus- sion in section 5 of that Notice. Moreover, the conference committee seems to think so, also; see the text of its report at footnote 1513.

14 It is not completely clear that distributions under Code Sec. 962(d) are dividends … they should be and if so, could constitute “quali- fied dividends” under Code Sec. 1(h)(11)(B) if Shangri-La is a treaty country.

15 CCA 200941019 (Apr. 9, 2009). 16 For a more detailed description of the “S

corporation inversion,” see Adam J. Tutaj, Moving the Immovable: Finding Flexibility in an F Reorganization, J. Passthrough Entities, March–April 2016, at 7.

JOURNAL OF PASSTHROUGH ENTITIES SEPTEMBER–OCTOBER 201852

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