Final rules coordinate Sec. 245A and Sec. 951A

The IRS on Friday issued final regulations that coordinate the Sec. 245A extraordinary disposition rule with the Sec. 951A disqualified basis and disqualified payment rules (T.D. 9934). The regulations also contain rules under Sec. 6038 on information reporting. The regulations finalize rules that were proposed in August (REG-124737-19) and about which the IRS received only one comment.

Sec. 245A, which was added to the Code by the law known as the Tax Cuts and Jobs Act (TCJA), P.L. 115-97, was enacted on Dec. 22, 2017, and provides a 100% deduction to domestic corporations for certain dividends received from foreign corporations after Dec. 31, 2017.

Sec. 951A, the global intangible low-taxed income (GILTI) provision, was also added by the TCJA and requires 10% U.S. shareholders of controlled foreign corporations (CFCs) to include in their gross income their share of the CFC’s GILTI for that tax year.

The Sec. 245A extraordinary disposition rule and the Sec. 951A disqualified basis rule generally address certain transactions involving related CFCs of a Sec. 245A shareholder that were not subject to current U.S. tax because they occurred during the disqualified period. A Sec. 245A shareholder is a domestic corporation that is a U.S. shareholder with respect to a specified 10%-owned foreign corporation (SFC) and that owns directly or indirectly stock of the SFC. The SFC’s disqualified period is the period beginning on Jan. 1, 2018, and ending as of the close of the tax year of the SFC, if any, that begins before Jan. 1, 2018, and ends after Dec. 31, 2017.

For the Sec. 245A shareholder, the extraordinary disposition rule ensures that earnings and profits generated by those transactions are subject to U.S. tax when distributed as a dividend, and the disqualified basis rule ensures that basis generated by the transaction does not offset or reduce income that would otherwise be subject to U.S. tax at the Sec. 245A shareholder level under Sec. 951(a)(1)(A) or 951A(a), or at the CFC level under Sec. 882(a) (that is, income effectively connected with the conduct of a trade or business in the United States) (Regs. Secs. 1.245A-5 and 1.951A-2(c)(5)).

The IRS noted that without coordination, the extraordinary disposition rule and the disqualified basis rule could give rise to excess taxation for a Sec. 245A shareholder because the earnings and profits to which the extraordinary disposition rule applies and the basis to which the disqualified basis rule applies are generally a function of a single amount of gain.

The final regulations apply to tax years of foreign corporations beginning on or after the date they are published in the Federal Register and to tax years of Sec. 245A shareholders in which or with which the tax years of the foreign corporations end. Taxpayers may also choose to apply the final regulations to tax years beginning before they are published and to tax years of Sec. 245A shareholders in which or with which such tax years end, provided that the taxpayer and all related taxpayers adopt the rules in their entirety.