Guidance Under Section 954(b)(4) Regarding Income Subject to a High Rate of Foreign Tax, 44650-44675 [2020-15349]

Agencies

• Internal Revenue Service
• DEPARTMENT OF THE TREASURY

[Federal Register Volume 85, Number 142 (Thursday, July 23, 2020)]
[Proposed Rules]
[Pages 44650-44675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15349]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / 
Proposed Rules

[[Page 44650]]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-127732-19]
RIN 1545-BP62


Guidance Under Section 954(b)(4) Regarding Income Subject to a 
High Rate of Foreign Tax

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document contains proposed regulations under the subpart 
F income and global intangible low-taxed income provisions of the 
Internal Revenue Code regarding the treatment of certain income that is 
subject to a high rate of foreign tax. This document also contains 
proposed regulations under the information reporting provisions for 
foreign corporations to facilitate the administration of certain rules 
in the proposed regulations. The proposed regulations would affect 
United States shareholders of controlled foreign corporations.

DATES: Written or electronic comments and requests for a public hearing 
must be received by September 21, 2020. Requests for a public hearing 
must be submitted as prescribed in the ``Comments and Requests for a 
Public Hearing'' section.

ADDRESSES: Commenters are strongly encouraged to submit public comments 
electronically. Submit electronic submissions via the Federal 
eRulemaking Portal at www.regulations.gov (indicate IRS and REG-127732-
19) by following the online instructions for submitting comments. Once 
submitted to the Federal eRulemaking Portal, comments cannot be edited 
or withdrawn. The IRS expects to have limited personnel available to 
process public comments that are submitted on paper through mail. Until 
further notice, any comments submitted on paper will be considered to 
the extent practicable. The Department of the Treasury (Treasury 
Department) and the IRS will publish for public availability any 
comment submitted electronically, and to the extent practicable on 
paper, to its public docket.
    Send hard copy submissions to: CC:PA:LPD:PR (REG-127732-19), Room 
5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044.

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
Jorge M. Oben or Larry R. Pounders at (202) 317-6934; concerning 
submissions of comments or requests for a public hearing, Regina 
Johnson at (202) 317-5177 (not toll-free numbers).

SUPPLEMENTARY INFORMATION: 

Background

    Section 951(a)(1) of the Internal Revenue Code (the ``Code'') 
provides that if a foreign corporation is a controlled foreign 
corporation (as defined in section 957) (``CFC'') at any time during a 
taxable year, every person who is a United States shareholder (as 
defined in section 951(b) (a ``U.S. shareholder'')) of such corporation 
and who owns (within the meaning of section 958(a)) stock in such 
corporation on the last day, in such year, on which such corporation is 
a CFC must include in gross income, for the taxable year in which or 
with which such taxable year of the corporation ends, the U.S. 
shareholder's pro rata share of the corporation's subpart F income for 
such year. Section 952 provides that subpart F income generally 
includes insurance income (as defined under section 953) and foreign 
base company income (as determined under section 954). Section 
954(b)(4), however, provides that for purposes of sections 953 and 
954(a), insurance income and foreign base company income do not include 
any item of income received by a CFC if a taxpayer establishes to the 
satisfaction of the Secretary that the income was subject to an 
effective rate of income tax imposed by a foreign country greater than 
90 percent of the maximum tax rate specified in section 11. 
Historically, Sec.  1.954-1(d) has implemented section 954(b)(4) by 
providing an election to exclude certain high-taxed income from the 
computation of subpart F income (the ``subpart F high-tax exception'').
    Section 951A, added to the Code by the Tax Cuts and Jobs Act, 
Public Law 115-97, 131 Stat. 2054, 2208 (December 22, 2017) (the 
``Act''), generally requires, for taxable years of foreign corporations 
beginning after December 31, 2017, that each U.S. shareholder of a CFC 
include in gross income its global intangible low-taxed income for the 
taxable year (``GILTI''). Section 951A(b) defines GILTI as a U.S. 
shareholder's excess (if any) of net CFC tested income for a taxable 
year over the U.S. shareholder's net deemed tangible income return for 
such taxable year. Section 951A(c)(1) provides that the net CFC tested 
income of a U.S. shareholder is the excess of the U.S. shareholder's 
aggregate pro rata share of tested income over the U.S. shareholder's 
aggregate pro rata share of tested loss of each CFC. To determine the 
tested income of a CFC, section 951A(c)(2)(A)(i) first determines the 
``gross tested income'' of the CFC, which is the gross income of the 
CFC without regard to certain items, including any gross income 
excluded from foreign base company income and insurance income by 
reason of section 954(b)(4). See section 951A(c)(2)(A)(i)(III). Tested 
income is then determined as the excess of gross tested income over the 
deductions properly allocable to such gross tested income under rules 
similar to the rules of section 954(b)(5). See section 951A(c)(2)(A).
    On June 21, 2019, the Treasury Department and the IRS published 
proposed regulations (REG-101828-19) under sections 951, 951A, 954, 
956, 958, and 1502 in the Federal Register (84 FR 29114) (the ``2019 
proposed regulations''). The 2019 proposed regulations under section 
951A provide an election to apply section 954(b)(4) to certain high-
taxed income of a CFC to which the subpart F high-tax exception does 
not apply, such that it can be excluded from tested income under 
section 951A(c)(2)(A)(i)(III) (the ``GILTI high-tax exclusion''). Rules 
in the 2019 proposed regulations relating to sections 951A and 954, 
including the GILTI high-tax exclusion, are finalized, with 
modification, in the Final Rules section of this issue of the Federal 
Register (the ``final regulations''). For rules in the final 
regulations relating to the GILTI high-tax exclusion, see Sec.  1.951A-
2(c)(1)(iii), (c)(3), (c)(7) and (c)(8).
    Terms used but not defined in this preamble have the meaning 
provided in

[[Page 44651]]

these proposed regulations or the final regulations.

Explanation of Provisions

I. Conforming the Subpart F High-Tax Exception With the GILTI High-Tax 
Exclusion

    As discussed in more detail in parts I and IV of the Summary of 
Comments and Explanation of Revisions in the preamble to the final 
regulations, comments on the 2019 proposed regulations recommended that 
various aspects of the GILTI high-tax exclusion be conformed with the 
subpart F high-tax exception to ensure that the goals of the Treasury 
Department and the IRS in promulgating the GILTI high-tax exclusion are 
not undermined. For example, comments noted that the election for the 
subpart F high-tax exception (other than with respect to passive 
foreign personal holding company income) is made on an item-by-item 
basis with respect to each individual CFC. In contrast, the election 
for the GILTI high-tax exclusion is subject to a ``consistency 
requirement,'' pursuant to which an election must be made with respect 
to all of the CFCs that are members of a CFC group (as discussed in 
part III of this Explanation of Provisions). Comments asserted that the 
consistency requirement would make the GILTI high-tax exclusion less 
beneficial to taxpayers, causing them in certain cases to engage in 
uneconomic tax planning to convert tested income into subpart F income 
to avail themselves of the subpart F high-tax exception, contrary to 
one of the stated purposes of the GILTI high-tax exclusion (to 
eliminate incentives to convert tested income into subpart F income).
    As discussed in the preamble to the final regulations, numerous 
comments recommended that the application of the GILTI high-tax 
exclusion be conformed with the subpart F high-tax exception. The 
Treasury Department and the IRS agree that the GILTI high-tax exclusion 
and the subpart F high-tax exception should be conformed but have 
determined that the rules applicable to the GILTI high-tax exclusion 
are appropriate and better reflect the changes made as part of the Act 
than the existing subpart F high-tax exception. Accordingly, to prevent 
inappropriate tax planning and reduce complexity, these proposed 
regulations revise and conform the provisions of the subpart F high-tax 
exception with the provisions of the GILTI high-tax exclusion in the 
final regulations, as modified by these proposed regulations.
    Another comment on the 2019 proposed regulations suggested that 
section 954(b)(4) should apply consistently to all of a CFC's items of 
gross income. In response to this comment, these proposed regulations 
provide for a single election under section 954(b)(4) for purposes of 
both subpart F income and tested income (the ``high-tax 
exception'').\1\ This unified rule, modeled on the GILTI high-tax 
exclusion in the final regulations, provides for further 
simplification.
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    \1\ As a result, when the rules in these proposed regulations 
are adopted as final regulations, the rules in Sec.  1.951A-2(c)(7) 
(which provide the election specific to the GILTI high-tax 
exclusion) will be withdrawn.
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II. Calculation of the Effective Tax Rate on the Basis of Tested Units

A. In General

    Under Sec.  1.954-1(d), effective tax rates and the applicability 
of the subpart F high-tax exception are determined on the basis of net 
foreign base company income of a CFC.\2\ Net foreign base company 
income generally means income described in Sec.  1.954-1(c)(1)(iii) 
reduced by deductions. See Sec.  1.954-1(c)(1). In general, single 
items of income tested for eligibility are determined by aggregating 
items of income of a certain type. See Sec.  1.954-1(c)(iii)(A) and 
(B). For example, the aggregate amount of a CFC's income from 
dividends, interests, rents, royalties, and annuities giving rise to 
non-passive foreign personal holding company income constitutes a 
single item of income. See Sec.  1.954-1(c)(1)(iii)(A)(1)(i). In 
contrast, under the final regulations, effective tax rates and the 
applicability of the GILTI high-tax exclusion are determined by 
aggregating gross income that would be gross tested income (but for the 
GILTI high-tax exclusion) within a separate category to the extent 
attributable to a tested unit of a CFC. See Sec.  1.951A-
2(c)(7)(ii)(A). For this purpose, the tentative tested income items and 
foreign taxes of multiple tested units of a CFC (including the CFC 
itself) that are tax residents of, or located in (in the case of 
certain branches), the same foreign country, generally are aggregated. 
See Sec.  1.951A-2(c)(7)(iv)(C)(1) and (3). As described further in the 
preamble to the final regulations, applying these rules on a tested 
unit basis ensures that high-taxed and low-taxed items of income are 
not inappropriately aggregated for purposes of determining the 
effective rate of tax, while at the same time allowing for some level 
of aggregation to minimize complexity. Measuring the effective rate of 
foreign tax on a tested unit basis is also appropriate in light of the 
reduction of corporate federal income tax rates by the Act; as a result 
of such lower rates, it is likely that CFCs will earn more high-taxed 
income potentially eligible for section 954(b)(4).
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    \2\ Similar rules apply for insurance income. See Sec.  1.954-
1(d)(3)(i) and Sec.  1.954-1(a)(6).
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    For the same reasons that the GILTI high-tax exclusion applies on a 
tested unit basis, the Treasury Department and the IRS have determined 
that the subpart F high-tax exception should apply on a tested unit 
basis. See proposed Sec.  1.954-1(d)(1)(ii)(A) and (B). In addition, 
the Treasury Department and the IRS have determined that for purposes 
of determining the applicability of section 954(b)(4), it is 
appropriate to group general category items of income attributable to a 
tested unit that would otherwise be tested income, foreign base company 
income, or insurance income. See proposed Sec.  1.954-1(d)(1)(ii)(A). 
By grouping these items of income, taxpayers making a high-tax 
exception election may be able to forego the often-complex analysis 
required to determine whether income would meet the definition of 
subpart F income. For example, taxpayers will not be required to 
determine whether income is foreign base company sales income versus 
tested income if the high-tax exception applies to the income.
    The proposed regulations generally group passive foreign personal 
holding company income in the same manner as existing Sec.  1.954-
1(c)(1)(iii)(B). See proposed Sec.  1.954-1(d)(1)(ii)(C). However, the 
Treasury Department and the IRS may propose conforming changes to the 
income grouping rules in Sec.  1.904-4(c) as part of future guidance. 
Comments are requested on this topic.
    Certain income and deductions attributable to equity transactions 
(for example, dividends or losses attributable to stock) are also 
separately grouped for purposes of the high-tax exception if the income 
is subject to preferential rates or an exemption under the tax law of 
the country of residence of the recipient. See proposed Sec.  1.954-
1(d)(1)(ii)(B) and (iv)(C). The purpose of this separate equity 
grouping is to separately test income or loss that is subject to 
foreign tax at a different rate than other general category income 
attributed to the tested unit and that may be susceptible to 
manipulation through, for example, the timing of distributions or 
losses.

[[Page 44652]]

B. Gross Income Attributable to Tested Units Based on Applicable 
Financial Statement

    The final regulations generally use items properly reflected on the 
separate set of books and records (within the meaning of Sec.  
1.989(a)-1(d)) as the starting point for determining gross income 
attributable to a tested unit. See Sec.  1.951A-2(c)(7)(ii)(B)(1). 
Books and records are used for this purpose because they serve as a 
reasonable proxy for determining the amount of gross income that the 
foreign country of the tested unit is likely to subject to tax and, 
given that this approach is consistent with the approach taken in other 
provisions, it should promote administrability.
    The proposed regulations retain this general approach but replace 
the reference to ``books and records'' with a more specific standard 
based on items of gross income attributable to the ``applicable 
financial statement'' of the tested unit. See proposed Sec.  1.954-
1(d)(1)(iii)(A). For this purpose, an applicable financial statement 
refers to a ``separate-entity'' (or ``separate-branch,'' if applicable) 
financial statement that is readily available, with the highest 
priority within a list of different types of financial statements. See 
proposed Sec.  1.954-1(d)(3)(i). These financial statements include, 
for example, financial statements that are audited or unaudited, and 
that are prepared in accordance with U.S. generally accepted accounting 
principles (``U.S. GAAP''), international financial reporting standards 
(``IFRS''), or the generally accepted accounting principles of the 
jurisdiction in which the entity is organized or the activities are 
located (``local-country GAAP''). See id.
    The Treasury Department and the IRS have determined that this new 
standard will provide more accurate and reliable information and will 
promote certainty in cases where there may be various forms of readily 
available financial information. This standard is also expected to 
promote administrability because it is consistent with approaches taken 
under other provisions. See section 451(b) and Rev. Proc. 2019-40, 
2019-43 I.R.B. 982. Finally, the Treasury Department and the IRS 
anticipate that the type of applicable financial statement will, in 
many cases, be the same from year to year and therefore will result in 
consistency and minimize opportunities for manipulation.

C. Allocation and Apportionment of Deductions for Purposes of the High-
Tax Exception

    As explained in section II.B of this Explanation of Provisions, the 
final regulations generally use items properly reflected on the 
separate set of books and records as the starting point for determining 
gross income attributable to a tested unit. See Sec.  1.951A-
2(c)(7)(ii)(B)(1). In contrast, the final regulations do not allocate 
and apportion deductions to those items of gross income by reference to 
the items of deduction that are properly reflected on the books and 
records of a tested unit. Instead, the final regulations apply the 
general allocation and apportionment rules for purposes of determining 
a tentative tested income item with respect to a tentative gross tested 
income item, such that deductions are generally allocated and 
apportioned under the principles of Sec.  1.960-1(d)(3) by treating 
each tentative gross tested income item as income in a separate tested 
income group, as that term is described in Sec.  1.960-1(d)(2)(ii)(C). 
See Sec.  1.951A-2(c)(7)(iii). Under those principles, certain 
deductions, such as interest expense, are allocated and apportioned 
based on a specific factor (such as assets or gross income) among the 
separate items of gross income of a CFC, such that deductions reflected 
on the books and records of a single tested unit, and generally taken 
into account for foreign tax purposes in computing the foreign taxable 
income, may not be fully taken into account for purposes of determining 
a tentative tested income item.
    The application of this provision of the final regulations may be 
illustrated by the following example. Assume that a CFC owns interests 
in two disregarded entities the interests in which are tested units 
(``TU1'' and ``TU2''), an equal amount of gross income is attributable 
to each of TU1 and TU2, and the CFC has no other activities. TU1's 
income is subject to a 30 percent rate of foreign tax, and TU2's income 
is subject to a 15 percent rate of foreign tax. TU1 accrues deductible 
interest expense payable to a third party that is allocated and 
apportioned to the CFC's gross income using the modified gross income 
method of Sec.  1.861-9T(j)(1), such that interest expense incurred by 
TU1 is allocated and apportioned equally between TU1 and TU2 for 
purposes of the GILTI high-tax exclusion. The foreign countries in 
which TU1 and TU2 are tax residents allow for deductions of interest 
expense only to the extent that resident entities in the country 
actually accrue such interest expenses. Therefore, the foreign country 
in which TU1 is tax resident allows a full deduction for the interest 
accrued by TU1, and TU2's country of tax residence does not allow an 
interest deduction for any interest accrued by TU1. Under the final 
regulations, the allocation of interest expense for federal income tax 
purposes may cause TU1's gross income to fail to qualify for the high-
tax exception and may cause TU2's gross income to qualify for the high-
tax exception, notwithstanding the higher tax rate in TU1's country of 
residence and the lower tax rate in TU2's country of residence.
    The Treasury Department and the IRS have determined that the policy 
goal of section 954(b)(4) is to identify income of a CFC subject to a 
high effective rate of foreign tax and is better served by determining 
the effective foreign tax rate with respect to items of income 
attributable to a tested unit by reference to an amount of income that 
approximates taxable income as computed for foreign tax purposes, 
rather than federal income tax purposes. However, the use of U.S. 
(rather than foreign) tax accounting rules to determine the amount and 
timing of items of income, gain, deduction, and loss included in the 
high-tax exception computation remains appropriate to ensure that the 
computation is not distorted by reason of foreign tax rules that do not 
conform to federal income tax principles. Therefore, these proposed 
regulations generally determine tentative net items by allocating and 
apportioning deductions, determined under federal income tax 
principles, to items of gross income to the extent the deductions are 
properly reflected on the applicable financial statement of the tested 
unit, consistent with the manner in which gross income is attributed to 
a tested unit. Under this method, a tentative net item better 
approximates the tax base upon which foreign tax is imposed than would 
be the case under the allocation and apportionment rules set forth in 
the regulations under section 861.
    The proposed regulations allocate and apportion deductions to the 
extent properly reflected on the applicable financial statement only 
for purposes of section 954(b)(4), and not for any other purpose, such 
as for determining U.S. taxable income of the CFC under sections 
954(b)(5) and 951A(c)(2)(A)(ii), and the associated foreign tax credits 
under section 960. In contrast to section 954(b)(4), under which the 
rules in the proposed regulations are intended to approximate the 
foreign tax base, taxable income and items of income for

[[Page 44653]]

purposes of sections 954(b)(5), 951A(c)(2)(A)(ii), and 960 continue to 
be determined using the allocation and apportionment rules set forth in 
the regulations under section 861. Nevertheless, the Treasury 
Department and the IRS are considering whether for purposes of sections 
954(b)(5), 951A(c)(2)(A)(ii), and 960 it would be appropriate, in 
limited cases (for example to reduce administrative and compliance 
burdens), to allocate and apportion deductions incurred by a CFC based 
on the extent to which they are properly reflected on an applicable 
financial statement, and request comments in this regard. For example, 
a rule could allocate and apportion deductions (other than foreign tax 
expense) only to the extent of the items of gross income attributable 
to the tested unit, and allocate and apportion any deductions in excess 
of such gross income to all gross income of the CFC. In addition, 
applying a method based on applicable financial statements for purposes 
of the high-tax exception could, in certain circumstances, affect the 
allocation and apportionment of deductions for purposes of determining 
the amount of an inclusion with respect to gross income of the CFC that 
is not eligible for the high-tax exception. One approach under 
consideration is to provide that deductions allocated and apportioned 
to an item of gross income based on an applicable financial statement 
for purposes of calculating a tentative net item under the high-tax 
exception cannot be allocated and apportioned to a different item of 
gross income that does not qualify for the high-tax exception for 
purposes of calculating the inclusion under section 951(a) or section 
951A. This approach would be a limited change to the traditional rules 
for allocating and apportioning deductions and would address concerns 
that, if deductions were not allocated and apportioned using a 
consistent method when the high-tax exception has been elected, they 
could be viewed as effectively being ``double counted'' by both 
reducing the tentative net item for purposes of determining whether an 
item of gross income is eligible for the high-tax exception and also 
reduce the amount of a U.S. shareholder's inclusions under sections 
951(a)(1) and 951A(a) with respect to a different item of gross income. 
Comments are requested on this issue.

D. Undefined or Negative Foreign Tax Rates

    In certain cases, the effective foreign tax rate at which taxes are 
imposed on a tentative net item may result in an undefined value or a 
negative effective foreign tax rate. This may occur, for example, if 
foreign taxes are allocated and apportioned to the corresponding item 
of gross income, and the tentative net item (plus the foreign taxes) is 
negative because the amount of deductions allocated and apportioned to 
the gross income exceeds the amount of gross income (plus the foreign 
taxes). The proposed regulations provide that the effective rate of 
foreign tax with respect to a tentative net item that results in an 
undefined value or a negative effective foreign tax rate will be deemed 
to be high-taxed. See Sec.  1.954-1(d)(4)(ii). As a result, the item of 
gross income, and the deductions allocated and apportioned to such 
gross income under the rules set forth in the regulations under section 
861, are assigned to the residual grouping, and no credit is allowed 
for the foreign taxes allocated and apportioned to such gross income. 
Nevertheless, the Treasury Department and the IRS are considering 
whether this result is appropriate in all cases and request comments in 
this regard.

E. Combination of de Minimis Tested Units

    As discussed in the preamble to the final regulations, a comment 
recommended that taxpayers be permitted to aggregate QBUs within the 
same CFC that have a small amount of tested income. Although the final 
regulations did not adopt this recommendation, the proposed regulations 
include a rule that, subject to an anti-abuse provision, combines 
tested units (on a non-elective basis) that are attributed gross income 
less than the lesser of one percent of the gross income of the CFC, or 
$250,000. See proposed Sec.  1.954-1(d)(2)(iii)(A)(2). This de minimis 
combination rule applies after the application of the ``same foreign 
country'' combination rule in proposed Sec.  1.954-1(d)(2)(iii)(A)(1) 
and, therefore, combines tested units that are not residents of (or 
located in) the same foreign country.
    Comments are requested on this de minimis combination rule, 
including whether the rule could be better tailored to reduce 
administrative burden without permitting an excessive amount of 
blending of income subject to different foreign tax rates.

F. Anti-Abuse Rules

    The Treasury Department and the IRS are concerned that taxpayers 
may include, or fail to include, items on an applicable financial 
statement or make, or fail to make, disregarded payments, to manipulate 
the application of the high-tax exception. As a result, the proposed 
regulations include an anti-abuse rule to address such cases if 
undertaken with a significant purpose of avoiding the purposes of 
section 951, 951A, 954(b)(4), or proposed Sec.  1.954-1(d). See 
proposed Sec.  1.954-1(d)(3)(v).
    The Treasury Department and the IRS are also concerned that 
taxpayers may enter into transactions with a significant purpose of 
manipulating the eligibility of income for the high-tax exception. This 
could occur, for example, if a payment or accrual by a CFC is 
deductible for federal income tax purposes but not for purposes of the 
tax laws of the foreign country of the payor. As a result, the 
deduction would reduce the tentative net items of the CFC but would not 
reduce the amount of foreign income taxes paid or accrued with respect 
to the tentative net item, which would have the effect of increasing 
the foreign effective tax rate imposed on the item. Accordingly, the 
proposed regulations include an anti-abuse rule to address transactions 
or structures involving certain instruments (``applicable 
instruments'') or reverse hybrid entities that are undertaken with a 
significant purpose of manipulating whether an item of income qualifies 
for the high-tax exception. See proposed Sec.  1.954-1(d)(7). The 
Treasury Department and the IRS continue to study other transactions 
and structures that may be used to inappropriately manipulate the 
application of the high-tax exception, including transactions and 
structures with hybrid entities, and may expand the application of the 
anti-abuse rule in the final regulations such that it is not limited to 
specific types of transactions or structures.

III. Mechanics of the Election

A. In General

    As described in part I of this Explanation of Provisions, under 
current Sec.  1.954-1(d), the election for the subpart F high-tax 
exception is made separately with respect to each CFC, unlike the GILTI 
high-tax exclusion election, which must be made with respect to all of 
the CFCs that are members of a CFC group. As discussed in the preamble 
to the final regulations, the consistency requirement contained in the 
GILTI high-tax exclusion rules is necessary to prevent inappropriate 
cross-crediting with respect to high-taxed income under section 904. As 
a result of the changes made by the Act, a consistency requirement is 
also appropriate for the subpart F high-tax exception. The benefit of a 
CFC-specific election before the Act was to defer U.S.

[[Page 44654]]

tax with respect to high-tax income items. After the Act, as described 
further in the preamble to the final regulations, the ability to 
exclude some high-taxed income from subpart F, while claiming foreign 
tax credits with respect to other high-taxed income, can produce 
inappropriate results under section 904. As a result, the Treasury 
Department and the IRS have determined that a single high-tax exception 
election applicable to all income of all CFCs that are members of a CFC 
group better reflects the purposes of sections 904 and 954(b)(4) than a 
CFC-by-CFC election. Accordingly, the proposed regulations include a 
single unified election that applies for purposes of both subpart F and 
GILTI, incorporating a consistency requirement parallel to that in 
Sec.  1.951A-2(c)(7)(viii)(A)(1) and (c)(7)(viii)(E). See proposed 
Sec.  1.954-1(d)(6)(v).

B. Contemporaneous Documentation

    Neither current Sec.  1.954-1(d) nor the final regulations specify 
the documentation necessary for a U.S. shareholder to substantiate 
either the calculation of an amount excluded by reason of an election 
under section 954(b)(4) or that the requirements under current Sec.  
1.954-1(d) or the final regulations were met. However, to facilitate 
the administration of the rules regarding these elections, the Treasury 
Department and the IRS have determined that U.S. shareholders must 
maintain specific contemporaneous documentation to substantiate their 
high-tax exception computations. Accordingly, the proposed regulations 
include a contemporaneous documentation requirement. See proposed Sec.  
1.954-1(d)(6)(i)(D) and (d)(6)(vii). In addition, the proposed 
regulations add this information to the list of information that must 
be included on Form 5471 (``Information Return of U.S. Persons With 
Respect to Certain Foreign Corporations''). See proposed Sec.  1.6038-
2(f)(19).

IV. Other Changes to Sec.  1.954-1

A. Coordination Rules

1. Earnings and Profits Limitation
    Section 1.954-1(d)(4)(ii) provides that the amount of income that 
is a net item of income (an input in determining whether the subpart F 
high-tax exception applies) is determined after the application of the 
earnings and profits limitation provided under section 952(c)(1). 
Section 952(c)(1)(A) generally limits the amount of subpart F income of 
a CFC to the CFC's earnings and profits for the taxable year. In 
addition, section 952(c)(2) provides that if the subpart F income of a 
CFC is reduced by reason of the earnings and profits limitation under 
section 952(c)(1)(A), any excess of the earnings and profits of the CFC 
for any subsequent taxable year over the CFC's subpart F income for 
such taxable year is recharacterized as subpart F income under rules 
similar to the rules under section 904(f)(5).
    The Treasury Department and the IRS have determined that this 
coordination rule can lead to inappropriate results. When the section 
952(c)(1) limitation applies, the effective rate at which taxes are 
imposed under Sec.  1.954-1(d)(2) would be calculated on a smaller net 
item of income than if the net item of income were determined before 
the limitation, but the amount of foreign income taxes with respect to 
the net item would be unchanged. See Sec.  1.954-1(d)(4)(iii). This 
could have the effect of causing a net item of income to qualify for 
the subpart F high-tax exception even though the item, without regard 
to the limitation, would not have so qualified. In addition, amounts 
subject to recharacterization as subpart F income in a subsequent 
taxable year under section 952(c)(2) may not qualify for the subpart F 
high-tax exception even if the net item of income to which the 
recapture amount relates did so qualify. See Sec.  1.954-1(a)(7). As a 
result, the proposed regulations provide that the high-tax exception 
applies without regard to the limitation in section 952(c)(1). See 
proposed Sec.  1.954-1(a)(2)(i) and (5). The proposed regulations also 
follow current Sec.  1.951-1(a)(7), which provides that the subpart F 
income of a CFC is increased by earnings and profits of the CFC that 
are recharacterized under section 952(c)(2) and Sec.  1.952-1(f)(2)(ii) 
after determining the items of income of the CFC that qualify for the 
high-tax exception. See proposed Sec.  1.954-1(a)(5).
2. Full Inclusion Rule
    The current regulations generally provide that, except as provided 
in section 953, adjusted gross foreign base company income consists of 
all gross income of the CFC other than gross insurance income (and 
amounts described in section 952(b)), and adjusted gross insurance 
income consists of all gross insurance income (other than amounts 
described in section 952(b)), if the sum of the gross foreign base 
company income and the gross insurance income for the taxable year 
exceeds 70 percent of gross income (the ``full inclusion rule''). See 
Sec.  1.954-1(a)(3) and (b)(1)(ii). Thus, under the current regulations 
the full inclusion rule generally applies before the application of the 
subpart F high-tax exception (which occurs when adjusted net foreign 
base company income is determined). Under a special coordination rule, 
however, full inclusion foreign base company income is excluded from 
subpart F income if more than 90 percent of the adjusted gross foreign 
base company income and adjusted gross insurance company income of a 
CFC (determined without regard to the full inclusion rule) is 
attributable to net amounts excluded from subpart F income under the 
subpart F high-tax exception. See Sec.  1.954-1(d)(6).
    The Treasury Department and the IRS have determined that these 
rules could be simplified if the determination of whether income is 
foreign base company income occurs before the application of the full 
inclusion rule. Current Sec.  1.954-1, for example, requires taxpayers 
to determine whether income is foreign base company income or insurance 
income before applying the full inclusion rule or the high tax 
exception. See Sec.  1.954-1(a)(2) through (a)(5), and (a)(6). Applying 
the high-tax exception first will eliminate the need to perform this 
factual analysis in many cases. Therefore, the proposed regulations 
provide that the high-tax exception applies before the full inclusion 
rule and, consequently, the special coordination rule in Sec.  1.954-
1(d)(6) is eliminated. See proposed Sec.  1.954-1(a)(2)(i). In 
addition, the proposed regulations make conforming revisions to the 
coordination rule for full inclusion income and the high-tax election 
in the regulations under section 951A. Consequently, the proposed 
regulations delete Sec.  1.951A-2(c)(4)(iii)(C) and (iv)(C) (Example 
3).

B. Elections on Amended Returns

    Current Sec.  1.954-1(d)(5) generally provides that a controlling 
U.S. shareholder (as defined in Sec.  1.964-1(c)(5)) may make (or 
revoke) a subpart F high-tax election by attaching a statement to its 
amended income tax return and that this election is binding on all U.S. 
shareholders of the CFC. In conforming the provisions of the subpart F 
high-tax exception with the provisions of the GILTI high-tax exclusion 
in the final regulations (as modified by these proposed regulations), 
the Treasury Department and the IRS have determined that it is also 
necessary to revise the rules regarding elections on amended returns. 
The final regulations require that amended returns for all U.S. 
shareholders of the CFC for the CFC inclusion year must be filed within 
a single 6-month period within 24 months of the unextended due date of 
the

[[Page 44655]]

original income tax return of the controlling domestic shareholder's 
inclusion year with or within which the relevant CFC inclusion year 
ends. See Sec.  1.951A-2(c)(7)(viii)(A)(1)(iii). As stated in the 
preamble to the final regulations, the Treasury Department and the IRS 
determined that the requirement that all amended returns be filed by 
the end of this period is necessary to administer the GILTI high-tax 
exclusion and to allow the IRS to timely evaluate refund claims or make 
additional assessments.
    For this reason, the proposed regulations also provide that the 
high-tax election may be made (or revoked) on an amended federal income 
tax return only if all U.S. shareholders of the CFC file amended 
returns (unless an original federal income tax returns has not yet been 
filed, in which case the original return may be filed consistently with 
the election (or revocation)) for the year (and for any other tax year 
in which their U.S. tax liabilities would be increased by reason of 
that election (or revocation)), within a single 6-month period within 
24 months of the unextended due date of the original federal income tax 
return of the controlling domestic shareholder's inclusion year. See 
proposed Sec.  1.954-1(d)(6)(i)(B)(2). The proposed regulations provide 
that in the case of a U.S. shareholder that is a partnership, the 
election may be made (or revoked) with an amended Form 1065 or an 
administrative adjustment request, as applicable. Further, the proposed 
regulations provide that if a partnership files an administrative 
adjustment request, a partner that is a U.S. shareholder in the CFC is 
treated as having complied with these requirements (with respect to the 
portion of the interest held through the partnership) if the partner 
and the partnership timely comply with their obligations under section 
6227. See proposed Sec.  1.954-1(d)(6)(i)(C).
    The Treasury Department and the IRS are aware that changes in 
circumstances occurring after the 24-month period may cause a taxpayer 
to benefit from making (or revoking) the election, for example, if 
there is a foreign tax redetermination with respect to one or more 
CFCs. The Treasury Department and the IRS request comments on rules 
that would permit a taxpayer to make (or revoke) an election after the 
24-month period in cases where the taxpayer can establish that the 
election (or revocation) will not result in time-barred tax 
deficiencies.

V. Application of Section 952(c)(2) to Transactions Described in 
Section 381(a)

    Section 952(c)(2) generally provides that if subpart F income of a 
CFC for a taxable year was reduced by reason of the current earnings 
and profits limitation in section 952(c)(1)(A), any excess of the 
earnings and profits of such CFC for any subsequent taxable year over 
the subpart F income of such foreign corporation for such taxable year 
is recharacterized as subpart F income under rules similar to the rules 
of section 904(f)(5). Section 1.904(f)-2(d)(6) generally provides, in 
part, that in the case of a distribution or transfer described in 
section 381(a), an overall foreign loss account of the distributing or 
transferor corporation is treated as an overall foreign loss account of 
the acquiring or transferee corporation as of the close of the date of 
the distribution or transfer.
    The Treasury Department and the IRS have determined that, because 
of some lack of certainty whether recapture accounts carry over in 
transactions to which section 381(a) applies, it is appropriate to 
provide clarification. Therefore, the proposed regulations clarify that 
recapture accounts carry over to the acquiring corporation (including 
foreign corporations that are not CFCs) in a distribution or transfer 
described in section 381(a). See proposed Sec.  1.952-1(f)(4). The 
Treasury Department and the IRS believe that this clarification is 
consistent with general successor principles as may be applied under 
current law in certain successor transactions such as transactions 
described in section 381(a).

VI. Applicability Dates

    The proposed regulations under Sec.  1.951A-2, 1.952-1(e), and 
Sec.  1.954-1 are proposed to apply to taxable years of CFCs beginning 
after the date the Treasury decision adopting these rules as final 
regulations is filed with the Federal Register, and to taxable years of 
U.S. shareholders in which or with which such taxable years of foreign 
corporations end.
    The proposed regulations under Sec.  1.952-1(f)(4) are proposed to 
apply to taxable years of a foreign corporation ending on or after July 
20, 2020. See section 7805(b)(1)(B). As a result of this applicability 
date, proposed Sec.  1.952-1(f)(4) would apply with respect to 
recapture accounts of an acquiring corporation for taxable years of the 
corporation ending on or after July 20, 2020, even if the distribution 
or transfer described in section 381(a) occurred in a taxable year 
ending before July 20, 2020.

Special Analyses

I. Regulatory Planning and Review--Economic Analysis

    Executive Orders 13771, 13563, and 12866 direct agencies to assess 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. Order 13771 designation for any final rule resulting from 
these proposed regulations will be informed by comments received. The 
preliminary Executive Order 13771 designation for this proposed rule is 
regulatory.
    The Office of Management and Budget's Office of Information and 
Regulatory Affairs (OIRA) has designated these regulations as subject 
to review under Executive Order 12866 pursuant to the Memorandum of 
Agreement (April 11, 2018) between the Treasury Department and the 
Office of Management and Budget (OMB) regarding review of tax 
regulations. The Office of Information and Regulatory Affairs (OIRA) 
has designated the final rulemaking as significant under section 1(c) 
of the Memorandum of Agreement. Accordingly, OMB has reviewed the final 
regulations.

A. Background

    A foreign corporation with significant U.S. ownership may be 
classified as a controlled foreign corporation (``CFC''). Under section 
951(a)(1)(A), each United States shareholder is required to include in 
gross income its pro rata share of the CFC's subpart F income. Subpart 
F income consists of the sum of a CFC's foreign base company income (as 
defined in section 954(a)) and insurance income (as defined in section 
953(a)) and certain income described in section 952(a)(3) through (5). 
Section 954(b)(4), however, provides an exclusion of high-taxed items 
of income from foreign base company income and insurance income (the 
``subpart F high-tax exception''). The subpart F high-tax exception is 
generally governed by regulations originally issued in 1988 and 
significantly updated in 1995 (``current subpart F HTE regulations'').
    As part of the Tax Cuts and Jobs Act, Congress enacted section 
951A, which

[[Page 44656]]

subjects certain income earned by a CFC to U.S. tax on a current basis 
at the United States shareholder level as global intangible low-taxed 
income (``GILTI''). Under section 951A(c)(2)(A)(i)(III), taxpayers may 
apply the high-tax exception of section 954(b)(4) in order to exclude 
certain high-taxed income from taxation under section 951A (the ``GILTI 
high-tax exclusion''). The final regulations (``final GILTI HTE 
regulations,'' referred to elsewhere in this Preamble as the final 
regulations) released at this same time as these proposed regulations 
provide provisions for the implementation of the GILTI high-tax 
exclusion.

B. Need for Regulations

    The current subpart F high-tax exception regulations and the final 
GILTI HTE regulations each contain guidance regarding statutory 
exclusions for high-taxed income that would otherwise be included in 
subpart F or tested income but these rules do not conform to each 
other. The proposed regulations are needed to conform the subpart F 
high-tax exception to the GILTI high-tax exclusion and to provide for a 
single election to exclude high-taxed income under section 954(b)(4).

C. Overview of Regulations

    The proposed regulations provide for a single election under 
section 954(b)(4) for purposes of both subpart F and GILTI, modeled on 
the final GILTI HTE regulations. Consistent with the final GILTI HTE 
regulations, the proposed regulations include the requirement that an 
election is generally made with respect to all CFCs that are members of 
a CFC group (instead of an election made on a CFC-by-CFC basis) and 
provide that the determination of whether income is high-taxed is made 
on a tested unit-by-tested unit basis. The proposed regulations would 
also simplify the determination of high-taxed income and often 
eliminate the fact intensive analysis by grouping certain income that 
would otherwise qualify as subpart F income together with income that 
would otherwise qualify as tested income for the purpose of determining 
the effective foreign tax rate. In addition, the proposed regulations 
would modify the method for allocating and apportioning deductions to 
items of gross income for the purposes of the high-tax exception.

D. Economic Analysis

1. Baseline
    The Treasury Department and the IRS have assessed the benefits and 
costs of the proposed regulations relative to a no-action baseline 
reflecting anticipated federal income tax-related behavior in the 
absence of these regulations.
2. Summary of Economic Effects
    The proposed regulations conform the subpart F high-tax exception 
and GILTI high-tax exclusion by providing a single election for the 
purposes of both such exclusions, based on the final GILTI HTE 
regulations. This guidance thus reduces compliance costs and generally 
treats income earned across different forms of international business 
activity more equitably than under the no-action baseline. Based on 
these reasons, the Treasury Department and the IRS project that the 
proposed regulations will improve U.S. economic performance.
    The Treasury Department and the IRS project that the proposed 
regulations, if finalized, would have annual economic effects greater 
than $100 million ($2020). This determination is based on the fact that 
many of the taxpayers potentially affected by these proposed 
regulations are large multinational enterprises. Because of their 
substantial size, even modest changes in the treatment of their 
foreign-source income, relative to the no-action baseline, can lead to 
changes in patterns of economic activity that amount to at least $100 
million per year.
    The Treasury Department and the IRS have not undertaken more 
precise estimates of the economic effects of the proposed regulations. 
We do not have readily available data or models that predict with 
reasonable precision the business decisions that taxpayers would make 
under the proposed regulations, such as the amount and location of 
their foreign business activities and the extent to which this foreign 
business activity may substitute for or complement domestic business 
activity, versus alternative regulatory approaches, including the no-
action baseline.
    In the absence of quantitative estimates, the Treasury Department 
and the IRS have undertaken a qualitative analysis of the economic 
effects of the proposed regulations relative to the no-action baseline 
and alternative regulatory approaches.
    The Treasury Department and the IRS solicit comments on the 
economic analysis of the proposed regulations and particularly solicit 
data, models, or other evidence that may be used to enhance the rigor 
with which the final regulations are developed.
3. Economic Analysis of Specific Provisions
a. Single Exception for all High-Taxed Income
    The current subpart F high-tax exception regulations and the final 
GILTI HTE regulations each contain guidance regarding statutory 
exceptions for high-taxed income that would otherwise potentially be 
included in U.S. taxable income through a subpart F inclusion or a 
GILTI inclusion. These rules do not conform to each other. In addition, 
there currently are two elections under section 954(b)(4) with respect 
to distinct categories of income that are made separately. The proposed 
regulations provide for a single election under section 954(b)(4) of a 
unified high-tax exception.
    Under the current subpart F high-tax exception regulations, 
taxpayers may elect to exclude high-taxed income from foreign base 
company income and insurance income on an item-by-item basis with 
respect to each individual CFC. Thus, taxpayers may select individual 
CFCs for which they elect to exclude high-taxed income from subpart F, 
while not making the election for other related CFCs. In contrast, the 
final GILTI HTE regulations contain a ``consistency requirement'' such 
that the election into the GILTI high-tax exclusion must be made for 
all related CFCs and with respect to all high-taxed income of those 
CFCs.
    Comments preceding the final GILTI HTE regulations noted that the 
lack of conformity between the two high-tax exceptions, and 
particularly the ability of taxpayers to exclude items of high-taxed 
income from subpart F on a selective basis under the current subpart F 
high-tax exception regulations, may provide taxpayers with an incentive 
to structure activities such that certain foreign income would qualify 
as foreign base company income or insurance income, rather than tested 
income, in the absence of an election under section 954(b)(4).
    To better understand this incentive and why it may be problematic, 
consider the following example. Under the current regulations, by 
structuring in a way that some of its high-taxed foreign income is 
treated as foreign base company sales income (a category of foreign 
base company income) and electing the subpart F high-tax exception for 
only certain CFCs, a taxpayer may selectively exclude only a portion of 
its high-taxed CFC income from U.S. taxation under sections 951 and 
951A. The taxpayer can then use foreign tax credits from the high-taxed 
income that is not excluded against its

[[Page 44657]]

low-taxed foreign income. However, the taxpayer's foreign tax credit 
limitation will not fully take into account the expenses attributable 
to investments giving rise to high-taxed income, since expenses 
allocable to excluded high-taxed income will be disregarded under 
section 904(b)(4). Consequently, the foreign tax limitation may be 
higher on a relative basis than it would have been if all high-taxed 
foreign income and all expenses attributable to such income were taken 
into account, and tax credits from non-excluded high-taxed income may 
more generously reduce U.S. tax liability on the taxpayer's low-taxed 
income.
    In contrast, under the single high-tax exception provided by these 
proposed regulations, the election into the high-tax exception must be 
made for all CFCs that are members of a CFC group. A taxpayer that 
wishes to use high-taxed income to cross-credit against low-taxed 
income would need to include all its foreign income and allocable 
expenses in the foreign tax credit limitation calculation. Thus, the 
foreign tax credit limitation will take into account all expenses 
attributable to foreign income and the tax credits from high-taxed 
foreign income will be appropriately limited. Therefore, the proposed 
regulations will decrease taxpayers' incentives to inefficiently 
structure their foreign business activities relative to the current 
regulations, since such structuring would no longer be advantageous to 
taxpayers for purposes of the high-tax exception.
    The Treasury Department and the IRS project that such structuring 
of foreign business activities to reclassify foreign income would be 
undertaken for tax-driven rather than market-driven reasons and would 
not provide any general economic benefit relative to the single 
exclusion provided in the proposed regulations. Thus, the no-action 
baseline may lead to higher compliance costs and less efficient 
patterns of business activity relative to proposed regulations with a 
unified high-tax exception and a consistency requirement.
    The Treasury Department and the IRS recognize that relative to the 
no-action baseline, the proposed regulations may increase U.S. tax on 
some foreign income earned by U.S. shareholders of CFCs since they may 
reduce tax planning opportunities for U.S. taxpayers. Thus, the 
proposed regulations may, on the margin, decrease foreign investment by 
some U.S. taxpayers compared to the baseline.
    The Treasury Department and the IRS have not undertaken estimation 
of the reduction in compliance costs or the changes in the pattern of 
business activity under the proposed regulations, relative to the no-
action baseline. We do not have readily available data or models to 
estimate with any reasonable precision: (i) The number and attributes 
of the taxpayers that will elect the unified high-tax exception under 
the proposed regulations or that would elect the subpart F and GILTI 
high-tax exceptions under the no-action baseline; (ii) the range of 
effective tax rates on foreign investment that taxpayers are likely to 
have under the proposed regulations versus the no-action baseline; and 
(iii) the business activities that taxpayers would undertake as a 
result of these effective tax rates under the proposed regulations 
versus the no-action baseline.
b. Grouping Various Categories of Income Into a Single Category
    Under the current subpart F high-tax exception regulations, 
effective foreign tax rates are determined separately for a number of 
different income categories. Thus, taxpayers need to classify their 
income items into these categories when electing into the subpart F 
high-tax exception. In addition, under the final GILTI HTE regulations, 
taxpayers must determine whether income would otherwise qualify as 
tested income when electing into the GILTI high-tax exclusion. In both 
of these cases, to classify their income items into these various 
categories, taxpayers may need to undertake complex factual analyses. 
To simplify for taxpayers the determination of which income is subject 
to a high rate of foreign tax, the proposed regulations modify the 
categories into which income is grouped for the purpose of determining 
effective foreign tax rates for the unified high-tax exception.
    Under the proposed regulations, several categories of income that 
would otherwise qualify as subpart F income or tested income are 
grouped into a single category for the purpose of determining if income 
is high-taxed and qualifies for the high-tax exception. This grouping 
of income types will, in many circumstances, eliminate the need for 
taxpayers to determine exactly which category an income item would 
belong to in the absence of an election relative to the current 
regulations. For example, under the no-action baseline, the taxpayer 
may need to undertake a complex analysis to determine whether income is 
properly categorized as foreign base company services income or tested 
income. Under the proposed regulations, taxpayers could avoid such an 
analysis because the income would clearly fall into the new broader 
category that includes both foreign base company services income and 
potential tested income. This proposed approach will therefore result 
in substantial simplification and reduce the compliance burden for 
taxpayers electing into the high-tax exception relative to the no-
action baseline.
    The proposed approach will also decrease incentives for taxpayers 
to organize their operations solely for the purpose of ensuring that 
income will qualify for a certain category, relative to the no-action 
baseline. Under the current subpart F high-tax exception regulations, 
taxpayers may have an incentive to organize certain business activities 
to generate, for example, sales income rather than services income in 
order to raise (or lower) the effective foreign tax rates in the 
categories of foreign base company sales income and foreign base 
company services income. By manipulating the effective foreign tax 
rates of certain income categories, taxpayers may be able to maximize 
the tax saving they can achieve through the subpart F high-tax 
exception. However, organizing their activities to generate certain 
types of income may result in less efficient patterns of business 
activity relative to a regulatory approach with less specific income 
categories. Under the proposed regulations, because items of income 
will be grouped into broader categories for the purpose of determining 
high-taxed income, the incentive for taxpayers to generate specific 
types of income will be diminished relative to the no-action baseline.
    Due to the absence of readily available data or models, the 
Treasury Department and the IRS have not estimated the difference in 
compliance costs or tax administration costs between the proposed 
regulations and the no-action baseline. We also have not estimated the 
difference in business activities that taxpayers might undertake 
between the proposed regulations and the no-action baseline.
c. Allocation and Apportionment of Deductions for Purposes of the High-
Tax Exception
    The Tax Cuts and Jobs Act is silent over how deductions should be 
allocated and apportioned to the gross income for purposes of the high-
tax exception. The allocation of these deductions can have an impact on 
a tested unit's effective foreign tax rate for the purposes of the 
high-tax exception.
    Under the final GILTI HTE regulations, certain deductions are 
allocated and apportioned among separate items of gross income of a 
CFC, even if the deductions are reflected on

[[Page 44658]]

the books and records of only one of the CFC's tested units and are 
likely only taken into account for the computation of foreign taxable 
income, as calculated for foreign tax purposes, in the jurisdiction of 
that tested unit. Thus, the allocation and apportionment of deductions 
to items of gross income may differ from how those deductions are 
treated by foreign jurisdictions in calculating foreign tax. For 
example, suppose that a CFC has an expense that for foreign 
jurisdictions' tax purposes is granted a full deduction against foreign 
taxable income in the jurisdiction of a single tested unit and is not 
granted deductions in any other jurisdictions where the CFC operates 
for the purposes of computing taxable income in these jurisdictions. 
Under the final GILTI HTE regulations, this deduction may nevertheless 
be allocated and apportioned against the gross income of multiple 
tested units of a CFC, some of which may not be tax resident in the 
same jurisdiction where the deduction is allowed for foreign tax 
purposes. This difference between federal and foreign tax treatment may 
result in some income qualifying (or not qualifying) for the high-tax 
exception even when the statutory rate of foreign tax is low (or high). 
In addition, the difference between federal tax treatment and how 
taxpayers record deductions in their books and records may add to 
taxpayers' compliance burden and may complicate tax administration 
relative to alternative regulatory approaches.
    To address these issues, the proposed regulations adopt an approach 
based on the books and records kept by the taxpayer. In particular, the 
proposed regulations generally provide that, for the purposes of the 
high-tax exception, deductions will be allocated and apportioned to 
items of gross income by reference to the items of deduction that are 
properly reflected on the books and records of a tested unit. This 
approach will align the method for allocating deductions to tested 
units with the method for attributing items of gross income to tested 
units, which also follows a books-and-records approach under the final 
GILTI HTE regulations.
    Using the books-and-records approach for both gross income and 
deductions, tested units' income will also more closely approximate 
taxable income as computed by foreign jurisdictions for foreign tax 
purposes than it does under the final GILTI HTE regulations. The 
approach thus serves as a more accurate and more administrable method 
for determining the effective foreign tax rate paid tax than the no-
action baseline.
    Due to the absence of readily available data or models, the 
Treasury Department and the IRS have not estimated the difference in 
compliance costs or tax administration costs between the proposed 
regulations and the no-action baseline. We also have not estimated the 
difference in business activities that taxpayers might undertake 
between the proposed regulations and the no-action baseline.
4. Profile of Affected Taxpayers
    The proposed regulations potentially affect those taxpayers that 
have at least one CFC with at least one tested unit (including, 
potentially, the CFC itself) that has high-taxed income. Taxpayers with 
CFCs that have only low-taxed income are not eligible to elect the 
high-tax exception and hence are unaffected by the proposed 
regulations.
    The Treasury Department and the IRS estimate that there are 
approximately 4,000 business entities (corporations, S corporations, 
and partnerships) with at least one CFC that pays an effective foreign 
tax rate above 18.9 percent, the current high-tax statutory threshold. 
The Treasury Department and the IRS further estimate that, for the 
partnerships with at least one CFC that pays an effective foreign tax 
rate greater than 18.9 percent, there are approximately 1,500 partners 
that have a large enough share to potentially qualify as a 10 percent 
U.S. shareholder of the CFC.\3\ The 4,000 business entities and the 
1,500 partners provide an estimate of the number of taxpayers that 
could potentially be affected by guidance governing the election into 
the high-tax exception. The figure is approximate because the tax rate 
at the CFC-level will not necessarily correspond to the tax rate at the 
tested unit-level if there are multiple tested units within a CFC.
---------------------------------------------------------------------------

    \3\ Data are from IRS's Research, Applied Analytics, and 
Statistics division based on E-file data available in the Compliance 
Data Warehouse for tax years 2015 and 2016. The counts include 
Category 4 and Category 5 IRS Form 5471 filers. Category 4 filers 
are U.S. persons who had control of a foreign corporation during the 
annual accounting period of the foreign corporation. Category 5 
filers are U.S. shareholders who own stock in a foreign corporation 
that is a CFC and who owned that stock on the last day in the tax 
year of the foreign corporation in that year in which it was a CFC. 
For full definitions, see https://www.irs.gov/pub/irs-pdf/i5471.pdf.
---------------------------------------------------------------------------

    The Treasury Department and the IRS do not have readily available 
data to determine how many of these taxpayers would elect the high-tax 
exception as provided in these proposed regulations. Under the proposed 
regulations, a taxpayer that has both high-taxed and low-taxed tested 
units will need to evaluate the benefit of eliminating any tax under 
section 951 and section 951A with respect to high-taxed income against 
the costs of forgoing the use of foreign tax credits and, with respect 
to section 951A, the use of tangible assets in the computation of 
qualified business asset investment (QBAI).
    Tabulations from the IRS Statistics of Income 2014 Form 5471 file 
\4\ further indicate that approximately 85 percent of earnings and 
profits are reported by CFCs incorporated in jurisdictions where the 
average effective foreign tax rate is less than or equal to 18.9 
percent. The data indicate several examples of jurisdictions where CFCs 
have average effective foreign tax rates above 18.9 percent, such as 
France, Italy, and Japan. However, information is not readily available 
to determine how many tested units are part of the same CFC and what 
the effective foreign tax rates are with respect to such tested units. 
Taxpayers potentially more likely to elect the high-tax exception are 
those taxpayers with CFCs that only operate in high-tax jurisdictions. 
Data on the number or types of CFCs that operate only in high-tax 
jurisdictions are not readily available.
---------------------------------------------------------------------------

    \4\ The IRS Statistics of Income Tax Stats report on Controlled 
Foreign Corporations can be accessed here: https://www.irs.gov/statistics/soi-tax-stats-controlled-foreign-corporations.
---------------------------------------------------------------------------

II. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) 
(``Paperwork Reduction Act'') requires that a federal agency obtain the 
approval of the OMB before collecting information from the public, 
whether such collection of information is mandatory, voluntary, or 
required to obtain or retain a benefit.

A. Overview of Collections of Information in the Proposed Regulations

    The proposed regulations include new collection of information 
requirements in proposed Sec.  1.954-1(d)(6)(i)(A)(1) and (2), Sec.  
1.954-1(d)(6)(vii)(A), and Sec.  1.6038-2(f)(19).
    The collection of information in proposed Sec.  1.954-
1(d)(6)(i)(A)(1) requires a statement that a controlling domestic 
shareholder of a CFC must file with an original or amended income tax 
return to elect to apply the high-tax exception in section 954(b)(4) 
with respect to a controlled foreign corporation. The collection of 
information in proposed Sec.  1.954-1(d)(6)(i)(A)(2) requires a notice 
that the controlling domestic shareholder must provide to other 
domestic shareholders who own stock of the foreign corporation to 
notify them of the election. The collection of information in proposed 
Sec.  1.954-1(d)(6)(vii)(A) requires each U.S. shareholder of a CFC

[[Page 44659]]

that makes a high-tax election under section 954(b)(4) and Sec.  1.954-
1(d)(6) to maintain certain documentation. The collection of 
information in proposed Sec.  1.6038-2(f)(19) requires a U.S. 
shareholder of a CFC that makes a high-tax election under section 
954(b)(4) and Sec.  1.954-1(d)(6) to include certain information in the 
Form 5471 (or successor form).
    As shown in Table 1, the Treasury Department and the IRS estimate 
that the number of persons potentially subject to the collections of 
information in proposed Sec.  1.954-1(d)(6)(i)(A)(1) and (2), Sec.  
1.954-1(d)(6)(vii)(A), and Sec.  1.6038-2(f)(19) is between 25,000 and 
35,000. The estimate in Table 1 is based on the number of taxpayers 
that filed an income tax return that included a Form 5471, 
``Information Return of U.S. Persons With Respect to Certain Foreign 
Corporations.'' The collections of information in proposed Sec.  1.954-
1(d)(6)(i)(A)(1) and (2), Sec.  1.954-1(d)(6)(vii)(A), and Sec.  
1.6038-2(f)(19) can only apply to taxpayers that are U.S. shareholders 
(as defined in section 951(b)) and U.S. shareholders are required to 
file a Form 5471.

                  Table 1--Table of Tax Forms Impacted
------------------------------------------------------------------------
                           Tax forms impacted
-------------------------------------------------------------------------
                                    Number of       Forms to which the
   Collection of information       respondents      information may be
                                   (estimated)           attached
------------------------------------------------------------------------
Proposed Sec.   1.954-            25,000-35,000  Form 990 series, Form
 1(d)(6)(i)(A)(1) and (2), Sec.                   1120 series, Form 1040
   1.954-1(d)(6)(vii)(A), and                     series, Form 1041
 Sec.   1.6038-2(f)(19).                          series, and Form 1065
                                                  series.
------------------------------------------------------------------------
Source: MeF, DCS, and IRS's Compliance Data Warehouse.

B. Reporting of Burden Related to Proposed Sec.  1.954-1(d)(6)(i)(A)(1) 
and (2) and Sec.  1.6038-2(f)(19)

    The collection of information contained in proposed Sec.  1.954-
1(d)(6)(i)(A)(1) and (2) and Sec.  1.6038-2(f)(19) will be reflected in 
the Form 14029, Paperwork Reduction Act Submission, that the Treasury 
Department and the IRS will submit to OMB for income tax returns in the 
Form 990 series, Forms 1120, Forms 1040, Forms 1041, and Forms 1065. In 
particular, the reporting burden associated with the information 
collection in proposed Sec.  1.954-1(d)(6)(i)(A)(1) and (2) and Sec.  
1.6038-2(f)(19) will be included in the burden estimates for OMB 
control numbers 1545-0123, 1545-0074, 1545-0092, and 1545-0047. OMB 
control number 1545-0123 represents a total estimated burden time for 
all forms and schedules for corporations of 3.344 billion hours and 
total estimated monetized costs of $61.558 billion ($2019). OMB control 
number 1545-0074 represents a total estimated burden time, including 
all other related forms and schedules for individuals, of 1.717 billion 
hours and total estimated monetized costs of $33.267 billion ($2019). 
OMB control number 1545-0092 represents a total estimated burden time, 
including all other related forms and schedules for trusts and estates, 
of 307,844,800 hours and total estimated monetized costs of $9.950 
billion ($2016). OMB control number 1545-0047 represents a total 
estimated burden time, including all other related forms and schedules 
for tax-exempt organizations, of 52.450 million hours and total 
estimated monetized costs of $1,496,500,000 ($2020). Table 2 summarizes 
the status of the Paperwork Reduction Act submissions of the Treasury 
Department and the IRS related to forms in the Form 990 series, Forms 
1120, Forms 1040, Forms 1041, and Forms 1065.
    The overall burden estimates provided by the Treasury Department 
and the IRS to OMB in the Paperwork Reduction Act submissions for OMB 
control numbers 1545-0123, 1545-0074, 1545-0092, and 1545-0047 are 
aggregate amounts related to the U.S. Business Income Tax Return, the 
U.S. Individual Income Tax Return, and the U.S. Income Tax Return for 
Estates and Trusts, along with any associated forms. The burdens 
included in these Paperwork Reduction Act submissions, however, do not 
account for any burdens imposed by proposed Sec.  1.954-
1(d)(6)(i)(A)(1) and (2) and Sec.  1.6038-2(f)(19). The Treasury 
Department and the IRS have not identified the estimated burdens for 
the collections of information in proposed Sec.  1.954-1(d)(6)(i)(A)(1) 
and (2) and Sec.  1.6038-2(f)(19) because there are no burden estimates 
specific to proposed Sec.  1.954-1(d)(6)(i)(A)(1) and (2) and Sec.  
1.6038-2(f)(19) currently available. The burden estimates in the 
Paperwork Reduction Act submissions that the Treasury Department and 
the IRS will submit to the OMB will in the future include, but not 
isolate, the estimated burden related to the tax forms that will be 
revised for the collection of information in proposed Sec.  1.954-
1(d)(6)(i)(A)(1) and (2) and Sec.  1.6038-2(f)(19).
    The Treasury Department and the IRS have included the burdens 
related to the Paperwork Reduction Act submissions for OMB control 
numbers 1545-0123, 1545-0074, 1545-0092, and 1545-0047 in the Paperwork 
Reduction Act analysis for other regulations issued by the Treasury 
Department and the IRS related to the taxation of cross-border income. 
The Treasury Department and the IRS encourage users of this information 
to take measures to avoid overestimating the burden that the 
collections of information in proposed Sec.  1.954-1(d)(6)(i)(A)(1) and 
(2) and Sec.  1.6038-2(f)(19), together with other international tax 
provisions, impose. Moreover, the Treasury Department and the IRS also 
note that the Treasury Department and the IRS estimate Paperwork 
Reduction Act burdens on a taxpayer-type basis rather than a provision-
specific basis because an estimate based on the taxpayer-type most 
accurately reflects taxpayers' interactions with the forms.
    The Treasury Department and the IRS request comments on all aspects 
of information collection burdens related to the proposed regulations, 
including estimates for how much time it would take to comply with the 
paperwork burdens described above for each relevant form and ways for 
the IRS to minimize the paperwork burden. Any proposed revisions to 
these forms that reflect the information collections contained in 
proposed Sec.  1.954-1(d)(6)(i)(A)(1) and (2) and Sec.  1.6038-2(f)(19) 
will be made available for public comment at https://apps.irs.gov/app/picklist/list/draftTaxForms.html and will not be finalized until after 
these forms have been approved by OMB under the Paperwork Reduction 
Act.

[[Page 44660]]



  Table 2--Summary of Information Collection Request Submissions Related to Form 990 Series, Forms 1120, Forms
                                        1040, Forms 1041, and Forms 1065
----------------------------------------------------------------------------------------------------------------
                  Form                         Type of filer          OMB No.(s)               Status
----------------------------------------------------------------------------------------------------------------
Forms 990..............................  Tax exempt entities (NEW        1545-0047  Approved by OIRA 2/12/2020
                                          Model).                                    until 2/28/2021.
                                        ------------------------------------------------------------------------
                                         Link: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201912-1545-014 014.
----------------------------------------------------------------------------------------------------------------
Form 1040..............................  Individual (NEW Model)...       1545-0074  Approved by OIRA 1/30/2020
                                                                                     until 1/31/2021.
                                        ------------------------------------------------------------------------
                                         Link: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201909-1545-021 021.
----------------------------------------------------------------------------------------------------------------
Form 1041..............................  Trusts and estates.......       1545-0092  Approved by OIRA 5/08/2019
                                                                                     until 5/31/2022.
                                        ------------------------------------------------------------------------
                                         Link: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201806-1545-014 014.
----------------------------------------------------------------------------------------------------------------
Form 1065 and 1120.....................  Business (NEW Model).....       1545-0123  Approved by OIRA 1/30/2020
                                                                                     until 1/31/2021.
                                        ------------------------------------------------------------------------
                                         Link: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201907-1545-001 001.
----------------------------------------------------------------------------------------------------------------

C. Reporting of Burden Related to Proposed Sec.  1.954-1(d)(6)(vii)(A)

    The collections of information contained in proposed Sec.  1.954-
1(d)(6)(vii)(A) will not be conducted using a new or existing IRS form.
    The collections of information contained in Sec.  1.954-
1(d)(6)(vii)(A) have been submitted to the Office of Management and 
Budget (OMB) for review in accordance with the Paperwork Reduction Act. 
Commenters are strongly encouraged to submit public comments 
electronically. Comments and recommendations for the proposed 
information collection should be sent to www.reginfo.gov/public/do/PRAMain, with electronic copies emailed to the IRS at [email protected] 
(indicate REG-127732-19 on the subject line). Find this particular 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' and then by using the search function. Comments can 
also be mailed to OMB, Attn: Desk Officer for the Department of the 
Treasury, Office of Information and Regulatory Affairs, Washington, DC 
20503, with copies mailed to the IRS, Attn: IRS Reports Clearance 
Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the 
collections of information should be received by September 21, 2020.
    The likely respondents are U.S. shareholders of CFCs.
    Estimated total annual reporting burden: 300,000 hours.
    Estimated average annual burden per respondent: 10 hours.
    Estimated number of respondents: 30,000.
    Estimated frequency of responses: Annually.

III. Regulatory Flexibility Act

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires the agency to ``prepare and make 
available for public comment an initial regulatory flexibility analysis 
(IRFA)'' which will ``describe the impact of the proposed rule on small 
entities.'' 5 U.S.C. 603(a). Section 605 of the RFA allows an agency to 
certify a rule, in lieu of preparing an IRFA, if the proposed 
rulemaking is not expected to have a significant economic impact on a 
substantial number of small entities.
    These proposed regulations directly affect small entities that are 
a U.S. shareholder of a CFC and elect to apply the exception for high-
tax income in section 954(b)(4) and proposed Sec.  1.954-1(d)(6)(i). A 
U.S. shareholder is a U.S. person that owns, directly, indirectly, or 
constructively, 10 percent or more of the vote or value of a foreign 
corporation. A foreign corporation is a CFC if U.S. shareholders own 
directly, indirectly, or constructively, more than 50 percent of the 
vote or value of the foreign corporation. Therefore, the proposed 
regulations apply only to U.S. persons that operate a foreign business 
in corporate form, and only if the foreign corporation is a CFC.
    The Small Business Administration establishes small business size 
standards (13 CFR part 121) by annual receipts or number of employees. 
There are several industries that may be identified as small even 
through their annual receipts are above $25 million or because of the 
number of employees. The Treasury Department and the IRS do not have 
data indicating the number of small entities that will be significantly 
impacted by the proposed regulations. Nevertheless, for the reasons 
described below, the Treasury Department and the IRS do not believe 
that the regulations will have a significant economic impact on small 
entities. The proposed regulations are elective, and small entities 
will likely not avail of the election unless the net benefits in terms 
of tax liability and any consequent compliance costs are positive. 
Thus, the Treasury Department and the IRS hereby certify that the 
proposed regulations are not expected to have a significant economic 
impact on a substantial number of small entities.
    Pursuant to section 7805(f), these proposed regulations will be 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on its impact on small businesses. The 
Treasury Department and the IRS also request comments from the public 
on the certifications in this Part III.

IV. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1532) requires that agencies assess anticipated costs and benefits and 
take certain other actions before issuing a final rule that includes 
any federal mandate that may result in expenditures in any one year by 
a state, local, or tribal government, in the aggregate, or by the 
private sector, of $100 million in 1995 dollars, updated annually for 
inflation. These proposed regulations do not include any federal 
mandate that may result in expenditures by state, local, or tribal 
governments, or by the private sector in excess of that threshold.

V. Executive Order 13132: Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial, direct compliance costs on state and local 
governments, and is not required by statute, or preempts state law, 
unless the agency meets the consultation and funding requirements of 
section 6 of the Executive Order. These proposed regulations do not 
have

[[Page 44661]]

federalism implications and do not impose substantial direct compliance 
costs on state and local governments or preempt state law within the 
meaning of the Executive Order.

Comments and Requests for Public Hearing

    Before the proposed amendments are adopted as final regulations, 
consideration will be given to any comments that are submitted timely 
to the IRS as prescribed in this preamble under the ADDRESSES section. 
The Treasury Department and the IRS request comments on all aspects of 
the proposed regulations. See also part II.A. of the Explanation of 
Provisions (requesting comments related to the income grouping rules in 
Sec.  1.904-4(c)), part II.C. of the Explanation of Provisions 
(requesting comments related to the allocation and apportionment of 
deductions incurred by a CFC for purposes of sections 954(b)(5), 
951A(c)(2)(A)(ii), and 960 based on the extent to which they are 
properly reflected on an applicable financial statement), part II.D. of 
the Explanation of Provisions (requesting comments related to any case 
in which undefined or negative foreign tax rates should not be deemed 
high-taxed), part II.E. of the Explanation of Provisions (requesting 
comments related to combination of de minimis tested units to reduce 
administrative burden without permitting an excessive amount of 
blending of income subject to different foreign tax rates), and part 
IV.B. of the Explanation of Provisions (requesting comments related to 
rules that would permit a taxpayer to make (or revoke) an election 
after the 24-month period in cases where the taxpayer can establish 
that the election (or revocation) will not result in time-barred tax 
deficiencies). Any electronic comments submitted, and to the extent 
practicable any paper comments submitted, will be made available at 
www.regulations.gov or upon request.
    A public hearing will be scheduled if requested in writing by any 
person who timely submits electronic or written comments. Requests for 
a public hearing are also encouraged to be made electronically. If a 
public hearing is scheduled, notice of the date and time for the public 
hearing will be published in the Federal Register. Announcement 2020-4, 
2020-17 IRB 1, provides that until further notice, public hearings 
conducted by the IRS will be held telephonically. Any telephonic 
hearing will be made accessible to people with disabilities.
    Because the Treasury Department and the IRS intend to make 
revisions to the rules concerning high-taxed income in Sec.  1.904-4(c) 
to conform them with the rules in these proposed regulations, comments 
are requested concerning any issues that should be taken into 
consideration in connection with such revisions.
    Comments are requested on transition rules with respect to the 
application of existing Sec.  1.954-1(d), which does not contain a 
consistency requirement, and the final regulations in circumstances in 
which a U.S. shareholder's CFCs have different taxable years.
    Comments are also requested on the attribution of items to a tested 
unit based on an applicable financial statement in certain cases in 
which a CFC holds directly or indirectly more than one interest in an 
entity. For example, assume a CFC directly owns DEX, a disregarded 
entity that is a tax resident in Country X, and DEY, a disregarded 
entity that is a tax resident in Country Y. DEX and DEY together own 
all the interests in DEZ, a disregarded entity organized in Country Z 
that is viewed as fiscally transparent under the laws of all countries. 
Comments are requested on how items that are properly reflected on the 
applicable financial statement of DEZ, and taken into account by CFC, 
should be attributed to CFC's interests in DEX and DEY, each of which 
is a tested unit.

Drafting Information

    The principal authors of these regulations are Jorge M. Oben and 
Larry R. Pounders of the Office of Associate Chief Counsel 
(International). However, other personnel from the Treasury Department 
and the IRS participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 is amended by revising 
the entry for Sec.  1.954-1 to read in part as follows:

    Authority:  26 U.S.C. 7805 * * *
* * * * *
    Section 1.954-1 also issued under 26 U.S.C. 964(c), 6001 and 
6038(a)(1).
* * * * *


Sec.  1.951A-2   [Amended]

0
Par. 2. Section 1.951A-2:
0
1. As amended in a final rule published elsewhere in this issue of the 
Federal Register, effective September 21, 2020, is amended by revising 
paragraph (c)(1)(iii), removing the paragraph (c)(3)(i) subject 
heading, redesignating paragraph (c)(3)(i) as paragraph (c)(3), and 
removing paragraph (c)(3)(ii);
0
2. Is amended by removing paragraphs (c)(4)(iii)(C) and (c)(4)(iv)(C); 
and
0
3. As amended in a final rule published elsewhere in this issue of the 
Federal Register, effective September 21, 2020, is amended by removing 
paragraphs (c)(7) and (8).
    The revisions read as follows:


Sec.  1.951A-2   Tested income and tested loss.

* * * * *
    (c) * * *
    (1) * * *
    (iii) Gross income described in section 951A(c)(2)(A)(i)(III) that 
is excluded from the foreign base company income (as defined in section 
954) or insurance income (as defined in section 953) of the corporation 
by reason of the exception described in section 954(b)(4) and Sec.  
1.954-1(d)(1) pursuant to an election under Sec.  1.954-1(d)(6),
* * * * *
0
Par. 3. Section 1.951A-7, as amended in a final rule published 
elsewhere in this issue of the Federal Register, effective September 
21, 2020, is amended by revising paragraph (b) to read as follows:


Sec.  1.951A-7   Applicability dates.

* * * * *
    (b) High-tax exception. Section 1.951A-2(c)(1)(iii) applies to 
taxable years of foreign corporations beginning after [the date that 
final regulations are filed for public inspection], and to taxable 
years of United States shareholders in which or with which such taxable 
years of foreign corporations end. For the application of Sec.  1.951A-
2(c)(1)(iii) to taxable years of controlled foreign corporations 
beginning on or after September 21, 2020, and before [the date final 
regulations are filed with the Federal Register] and to taxable years 
of United States shareholders in which or with which such taxable years 
of foreign corporations end, see Sec.  1.951A-2(c)(1)(iii), as in 
effect on September 21, 2020.
0
Par. 4. Section 1.952-1 is amended by:
0
1. Revising paragraph (e)(4);
0
2. Redesignating paragraphs (f)(4) and (5) as paragraphs (f)(5) and 
(6), respectively;
0
3. Adding a new paragraph (f)(4);
0
4. In newly redesignated paragraph (f)(5), designating Examples (1) 
through

[[Page 44662]]

(4) as paragraphs (f)(5)(i) through (iv), respectively;
0
5. In newly designated paragraphs (f)(5)(i) through (iv), redesignating 
the paragraphs in the first column as the paragraphs in the second 
column in the following table:

------------------------------------------------------------------------
             Old paragraphs                       New paragraphs
------------------------------------------------------------------------
(f)(5)(i)(i) through (iii).............  (f)(5)(i)(A) through (C).
(f)(5)(ii)(i) through (iii)............  (f)(5)(ii)(A) through (C).
(f)(5)(iii)(i) through (iii)...........  (f)(5)(iii)(A) through (C).
(f)(5)(iv)(i) through (iii)............  (f)(5)(iv)(A) through (C).
------------------------------------------------------------------------

0
6. Revising newly designated paragraph (f)(6).
    The revisions and addition read as follows:


Sec.  1.952-1   Subpart F income defined.

* * * * *
    (e) * * *
    (4) Coordination with sections 953 and 954. The rules of this 
paragraph (e) apply after the determination of net foreign base company 
income, as provided in Sec.  1.954-1(a)(5). This paragraph (e)(4) 
applies to taxable years of controlled foreign corporations beginning 
after [the date that final regulations are filed for public 
inspection], and to taxable years of United States shareholders in 
which or with which such taxable years of foreign corporations end. For 
taxable years before those described in the preceding sentence, see 
Sec.  1.952-1(e)(4), as contained in 26 CFR part 1 revised as of April 
1, 2020.
* * * * *
    (f) * * *
    (4) Carryover of recapture accounts in transactions to which 
section 381(a) applies. In the case of a distribution or transfer 
described in section 381(a), any recapture accounts (as described in 
paragraph (f)(2)(i) of this section) of the distributor or transferor 
corporation are treated as recapture accounts of the acquiring 
corporation as of the close of the date of the distribution or 
transfer. If the acquiring corporation has recapture accounts in the 
same separate category (as defined in Sec.  1.904-5(a)(4)(v) and Sec.  
1.954-1(c)(1)(iii)(1) or (2)), the recapture accounts of the 
distributor or transferor corporation are added to the recapture 
accounts of the acquiring corporation in such category; if not, the 
acquiring corporation adopts the recapture accounts of the distributor 
or transferor corporation in such category.
* * * * *
    (6) Effective date--(i) Paragraphs (e) and (f). Except as provided 
in paragraphs (e)(4) and (f)(6)(ii) of this section, paragraph (e) of 
this section and this paragraph (f) apply to taxable years of a 
controlled foreign corporation beginning after March 3, 1997.
    (ii) Paragraph (f)(4). Paragraph (f)(4) of this section applies to 
taxable years of a corporation ending on or after July 20, 2020 (even 
if the distribution or transfer described in section 381(a) occurred in 
a taxable year ending before July 20, 2020).
* * * * *
0
Par. 5. Section 1.954-1:
0
1. Is amended by revising paragraphs (a)(2) and (3);
0
2. Is amended in paragraph (a)(4) by removing the language ``term,'' 
removing the language ``means the'' and adding the language ``of a 
controlled foreign corporation is'' in its place, removing the language 
``a'' after the language ``adjusted gross foreign base company income 
of'' and adding ``the'' in its place;
0
3. Is amended by revising paragraphs (a)(5) and (6);
0
4. Is amended in paragraph (a)(7) by adding in the first sentence the 
language ``and Sec.  1.952-1(f)(2)(ii) of'' after the language ``under 
section 952(c)'' and revising the last sentence;
0
5. Is amended in paragraph (b)(1)(ii) by removing the second sentence; 
and
0
6. As amended in a final rule published elsewhere in this issue of the 
Federal Register, effective September 21, 2020, is amended by: Revising 
paragraphs (d) and (h)(3).
    The revisions read as follows:


Sec.  1.954-1   Foreign base company income.

    (a) * * *
    (2) Gross foreign base company income--(i) In general. The gross 
foreign base company income of a controlled foreign corporation, 
determined after the application of section 952(b) and Sec.  1.952-
1(b)(2), and after the application of the high-tax exception under 
section 954(b)(4) and paragraph (d) of this section, consists of the 
categories of gross income of the controlled foreign corporation 
described in paragraphs (a)(2)(i)(A) through (C) of this section.
    (A) Foreign personal holding company income, as defined in section 
954(c).
    (B) Foreign base company sales income, as defined in section 
954(d).
    (C) Foreign base company services income, as defined in section 
954(e).
    (ii) Foreign base company income for purposes of section 954(b). 
The term foreign base company income as used in section 954(b) refers 
to gross foreign base company income.
    (3) Adjusted gross foreign base company income. The adjusted gross 
foreign base company income of a controlled foreign corporation is the 
gross foreign base company income of the controlled foreign corporation 
as adjusted by the de minimis rule in section 954(b)(3)(A) and 
paragraph (b)(1)(i) of this section, and the full inclusion rule in 
section 954(b)(3)(B) and paragraph (b)(1)(ii) of this section.
* * * * *
    (5) Adjusted net foreign base company income. The adjusted net 
foreign base company income of a controlled foreign corporation is the 
net foreign base company income of the controlled foreign corporation, 
reduced by the earnings and profits limitation of section 952(c)(1) and 
Sec.  1.952-1(c), and increased by earnings and profits that are 
recharacterized as foreign base company income under section 952(c)(2) 
and Sec.  1.952-1(f)(2)(ii). Unless otherwise provided (for example, in 
paragraph (a)(2)(ii) of this section), the term foreign base company 
income as used in the Internal Revenue Code and elsewhere in the Income 
Tax Regulations means adjusted net foreign base company income.
    (6) Insurance income. The gross insurance income of a controlled 
foreign corporation is all the gross income of the controlled foreign 
corporation, determined after the application of section 952(b) and 
Sec.  1.952-1(b)(2), and after the application of the high-tax 
exception under section 954(b)(4) and paragraph (d) of this section, 
that is taken into account to determine the insurance income of the 
controlled foreign corporation under section 953. The adjusted gross 
insurance income of a controlled foreign corporation is the gross 
insurance income of the controlled foreign corporation as adjusted by 
the de minimis rule in section 954(b)(3)(A) and paragraph (b)(1)(i) of 
this section, and the full inclusion rule in section 954(b)(3)(B) and 
paragraph (b)(1)(ii) of this section. The net insurance income

[[Page 44663]]

of a controlled foreign corporation is the adjusted gross insurance 
income of the controlled foreign corporation reduced under section 953 
so as to take into account deductions (including taxes) properly 
allocable or apportionable to such income. The adjusted net insurance 
income of a controlled foreign corporation is the net insurance income 
of the controlled foreign corporation reduced by the earnings and 
profits limitation of section 952(c)(1) and Sec.  1.952-1(c), and 
increased by earnings and profits that are recharacterized as insurance 
income under section 952(c)(2) and Sec.  1.952-1(f)(2)(ii). The term 
insurance income as used in subpart F of the Internal Revenue Code and 
in the regulations under that subpart means adjusted net insurance 
income, unless otherwise provided.
    (7) Additional items of adjusted net foreign base company income or 
adjusted net insurance income by reason of section 952(c). The earnings 
and profits described in this paragraph (a)(7) are not subject to the 
de minimis rule in section 954(b)(3)(A) and paragraph (b)(1)(i) of this 
section, the full inclusion rule in section 954(b)(3)(B) and paragraph 
(b)(1)(ii) of this section, or the high-tax exception of section 
954(b)(4) and paragraph (d) of this section.
* * * * *
    (d) High-tax exception--(1) Application--(i) In general. An item of 
gross income of a controlled foreign corporation for a CFC inclusion 
year qualifies for the high-tax exception under section 954(b)(4) and 
this paragraph (d)(1) only if--
    (A) An election made under section 954(b)(4) and paragraph (d)(6) 
of this section is effective with respect to the controlled foreign 
corporation for the CFC inclusion year; and
    (B) The tentative net item with respect to the item of gross income 
was subject to an effective rate of foreign tax, as determined under 
paragraph (d)(4) of this section, that is greater than 90 percent of 
the maximum rate of tax specified in section 11 for the CFC inclusion 
year. See paragraphs (d)(9)(iii)(A)(2)(vi) (Example 1) and 
(d)(9)(iii)(B)(2)(vi) (Example 2) of this section for illustrations of 
the application of the rules set forth in this paragraph (d)(1)(i)(B).
    (ii) Item of gross income. For purposes of this paragraph (d), an 
item of gross income means an item described in paragraph 
(d)(1)(ii)(A), (B), or (C) of this section. See paragraphs 
(d)(9)(iii)(A)(2)(i) (Example 1) and (d)(9)(iii)(B)(2)(i) (Example 2) 
of this section for illustrations of the application of the rule set 
forth in this paragraph (d)(1)(ii).
    (A) General gross item. A general gross item is the aggregate 
amount of all gross income, determined under federal income tax 
principles but without regard to items described in section 952(c)(2) 
and Sec.  1.952-1(f)(2)(ii), that is attributable to a single tested 
unit (as provided in paragraph (d)(1)(iii) of this section) of the 
controlled foreign corporation in the CFC inclusion year and that is--
    (1) In a single separate category (as defined in Sec.  1.904-
5(a)(4)(v));
    (2) Not described in paragraph (d)(1)(ii)(B) of this section;
    (3) Not passive foreign personal holding company income; and
    (4) Of a type that would be treated as gross tested income, gross 
foreign base company income (as defined in paragraph (a)(2) of this 
section), or gross insurance income (as defined in paragraph (a)(6) of 
this section) (in all cases, determined without regard to the high-tax 
exception described in section 954(b)(4) and paragraph (d)(1) of this 
section).
    (B) Equity gross item. An equity gross item is the sum of gross 
income described in paragraph (d)(1)(ii)(A) of this section, determined 
without regard to paragraph (d)(1)(ii)(A)(2) of this section, that is 
also described in either paragraph (d)(1)(ii)(B)(1) or (2) of this 
section.
    (1) Income or gain arising from stock. Gross income described in 
this paragraph (d)(1)(ii)(B)(1) consists of dividends, income or gain 
recognized from dispositions of stock, and any similar items arising 
from stock that are taken into account by the tested unit, the entity 
an interest in which is the tested unit, or the branch the portion of 
the activities of which is the tested unit, as applicable, and subject 
to an exclusion, exemption, or other similar relief (such as a 
preferential tax rate) under the tax law of the country of tax 
residence of the tested unit or the entity, or the country in which the 
branch is located. For purposes of the preceding sentence, other 
similar relief does not include a deduction or credit against the tax 
imposed under such tax law for tax paid to another foreign country with 
respect to income attributable to the branch. Gross income described in 
this paragraph (d)(1)(ii)(B)(1) does not include gain recognized from 
dispositions of stock if the stock would be dealer property (as defined 
in Sec.  1.954-2(a)(4)(v)).
    (2) Income or gain arising from interests in pass-through entities. 
Gross income described in this paragraph (d)(1)(ii)(B)(2) is income or 
gain recognized on the disposition of, or a distribution with respect 
to, an interest in a pass-through entity (including an interest in a 
disregarded entity) that is attributable to the tested unit, the entity 
an interest in which is the tested unit, or the branch the portion of 
the activities of which is the tested unit, as applicable, and subject 
to an exclusion, exemption, or other similar relief (such as a 
preferential tax rate) under the tax law of the country of tax 
residence of the tested unit or the entity, or the country in which the 
branch is located. For purposes of the preceding sentence, other 
similar relief does not include a deduction or credit against the tax 
imposed under such tax law for tax paid to another foreign country with 
respect to income attributable to the branch.
    (C) Passive gross item. A passive gross item is the sum of the 
gross income described in paragraph (d)(1)(ii)(A) of this section 
(without regard to the exclusion of passive foreign personal holding 
company income under paragraph (d)(1)(ii)(A)(3) of this section) that 
constitutes a single item of passive foreign personal holding company 
income described in paragraph (c)(1)(iii)(B) of this section.
    (iii) Gross income attributable to a tested unit--(A) Items 
properly reflected on an applicable financial statement. Gross income 
of a controlled foreign corporation is attributable to a tested unit of 
the controlled foreign corporation to the extent it is properly 
reflected, as modified under paragraph (d)(1)(iii)(B) of this section, 
on the applicable financial statement of the tested unit. All gross 
income of a controlled foreign corporation is attributable to a tested 
unit (but no portion of the gross income is attributable to more than 
one tested unit) of the controlled foreign corporation. See paragraphs 
(d)(9)(iii)(C)(2)(ii) and (d)(9)(iii)(C)(5) (Example 3) of this section 
for illustrations of the application of the rule set forth in this 
paragraph (d)(1)(iii)(A).
    (B) Adjustments to reflect disregarded payments. The principles of 
Sec.  1.904-4(f)(2)(vi) apply to adjust gross income of the tested 
unit, to the extent thereof, to reflect disregarded payments. For 
purposes of this paragraph (d)(1)(iii)(B), the principles of Sec.  
1.904-4(f)(2)(vi) are applied taking into account the rules in 
paragraphs (d)(1)(iii)(B)(1) through (5) of this section. See 
paragraphs (d)(9)(iii)(A) (Example 1) and (d)(9)(iii)(B) (Example 2) of 
this section for examples that illustrate the application of the 
adjustments set forth in this paragraph (d)(1)(iii)(B).

[[Page 44664]]

    (1) The controlled foreign corporation is treated as the foreign 
branch owner and any other tested units of the controlled foreign 
corporation are treated as foreign branches.
    (2) The principles of Sec.  1.904-4(f)(2)(vi)(A) apply in the case 
of disregarded payments between a foreign branch and another foreign 
branch without regard to whether either foreign branch makes a 
disregarded payment to, or receives a disregarded payment from, the 
foreign branch owner.
    (3) The exclusion for payments described in Sec.  1.904-
4(f)(2)(vi)(C)(1) (``disregarded interest'') does not apply to the 
extent of the amount of a disregarded payment that is deductible in the 
country of tax residence (or location, in the case of a branch) of the 
tested unit that is the payor.
    (4) In the case of an amount of disregarded interest described in 
paragraph (d)(1)(iii)(B)(3) of this section, the rules in Sec.  1.904-
4(f)(2)(vi)(B) for determining how a disregarded payment is allocated 
to gross income of a foreign branch or foreign branch owner are applied 
by treating the disregarded payment as allocated and apportioned 
ratably to all of the gross income attributable to the tested unit that 
is making the disregarded payment. However, if a tested unit is both a 
payor and payee of an amount of disregarded interest described in 
paragraph (d)(1)(iii)(B)(3) of this section, the payments made are 
first allocable to the gross income allocated to it as a result of the 
receipt of amounts of disregarded interest described in paragraph 
(d)(1)(iii)(B)(3) of this section, to the extent thereof. If a tested 
unit makes and receives payments described in paragraph 
(d)(1)(iii)(B)(3) of this section to and from the same tested unit, the 
payments are netted so that paragraph (d)(1)(iii)(B)(3) of this section 
and the principles of Sec.  1.904-4(f)(2)(vi) apply only to the net 
amount of such payments between the two tested units. If the payment 
described in paragraph (d)(1)(iii)(B)(3) of this section would (if 
regarded) be directly allocated under the principles of Sec.  1.861-
10T(b) or (c) if such payment were regarded for federal income tax 
purposes, then notwithstanding any other rule in this paragraph 
(d)(1)(iii)(B)(4), a disregarded payment is allocated to gross income 
of a tested unit under the principles of Sec.  1.904-4(f)(2)(vi)(B) by 
applying the principles of Sec.  1.861-10T.
    (5) In the case of multiple disregarded payments, in lieu of the 
rules in Sec.  1.904-4(f)(2)(vi)(F), disregarded payments are taken 
into account under paragraph (d)(1)(iii)(B) of this section under the 
rules provided in paragraphs (d)(1)(iii)(B)(5)(i) through (iii) of this 
section.
    (i) Adjustments are first made with respect to disregarded payments 
received by a payee tested unit that are not themselves attributable to 
disregarded payments received by the payor tested unit. Second, 
adjustments are made with respect to disregarded payments made by the 
payee tested unit that are attributable to the income of that tested 
unit, adjusted as described in the preceding sentence. Third, 
adjustments are made with respect to amounts of disregarded interest 
received and paid, as described in paragraph (d)(1)(iii)(B)(4) of this 
section. Fourth, adjustments are made with respect to any other 
disregarded payments made or received.
    (ii) Adjustments with respect to disregarded payments made are 
first made with respect to disregarded payments that would be 
definitely related to a single class of gross income under the 
principles of Sec.  1.861-8; second, adjustments are made with respect 
to disregarded payments that would be definitely related to multiple 
classes of gross income under the principles of Sec.  1.861-8, but that 
are not definitely related to all gross income of the tested unit; 
third, adjustments are made with respect to disregarded payments that 
would be definitely related to all gross income under the principles of 
Sec.  1.861-8, other than payments described in paragraph 
(d)(1)(iii)(B)(3) of this section; and fourth, adjustments are made 
with respect to payments described in paragraph (d)(1)(iii)(B)(3) of 
this section and disregarded payments that would not be definitely 
related to any gross income under the principles of Sec.  1.861-8.
    (iii) Adjustments can be made only to the extent there is 
sufficient gross income (in the relevant income group) of the tested 
unit making the payment, taking into account the adjustments that 
increase gross income as provided in this paragraph (d)(1)(iii)(B)(5).
    (iv) Tentative net item--(A) In general. Except as provided in 
paragraphs (d)(1)(iv)(B) and (C) of this section, a tentative net item 
with respect to an item of gross income described in paragraph 
(d)(1)(ii) of this section is determined by allocating and apportioning 
deductions for the CFC inclusion year (not including any items 
described in Sec.  1.951A-2(c)(5) or (c)(6)) to the item of gross 
income under the principles of Sec.  1.960-1(d)(3) by treating each 
single item of gross income described in paragraph (d)(1)(ii) of this 
section as gross income in a separate income group described in Sec.  
1.960-1(d)(2)(ii) and by treating all other income as assigned to a 
residual income group. A deduction for current year taxes (as defined 
in Sec.  1.960-1(b)(4)) imposed solely by reason of a disregarded 
payment that gives rise to an adjustment under paragraph (d)(1)(iii)(B) 
of this section, however, is allocated and apportioned under the 
principles of Sec.  1.904-6(b)(2) in lieu of the rules under Sec.  
1.861-20(d)(3)(ii). See paragraph (d)(9)(iii)(A)(2)(ii) (Example 1) and 
(d)(9)(iii)(B)(2)(iii) (Example 2) of this section for illustrations of 
the application of the rule set forth in this paragraph (d)(1)(iv)(A).
    (B) Booking rule for deductions other than current year tax 
expense. Deductions (other than deductions for current year taxes) are 
attributable to a tested unit to the extent they are properly reflected 
on the applicable financial statement of the tested unit under the 
principles of paragraph (d)(1)(iii)(A) of this section. In applying the 
principles of Sec.  1.960-1(d)(3) under paragraph (d)(1)(iv)(A) of this 
section, deductions (other than deductions for current year taxes) 
attributable to a tested unit are allocated and apportioned on the 
basis of the income and activities to which the expense relates, but 
are applied only to reduce the items of gross income described in 
paragraph (d)(1)(ii) of this section attributable to the same tested 
unit (including gross income that is attributed to the tested unit by 
reason of disregarded payments, and regardless of whether the tested 
unit has gross income in the relevant income group during the CFC 
inclusion year). In applying Sec. Sec.  1.861-9 and 1.861-9T pursuant 
to Sec.  1.960-1(d)(3), solely for purposes of paragraph (d)(1)(iv)(A) 
of this section interest deductions attributable to a tested unit are 
allocated and apportioned only on the basis of the assets (or gross 
income, in the case of a taxpayer that has elected the modified gross 
income method) of that tested unit. No interest deductions attributable 
to the tested unit are allocated and apportioned to the assets or gross 
income of another tested unit, or of a corporation, owned by the 
controlled foreign corporation indirectly through the tested unit. See 
paragraph (d)(9)(iii)(B)(2)(ii) (Example 2) of this section for 
illustrations of the application of the rule set forth in this 
paragraph (d)(1)(iv)(B).
    (C) Deduction or loss with respect to equity. Notwithstanding 
paragraph (d)(1)(iv)(A) of this section, if a tested unit takes into 
account a loss or deduction (including a deduction for foreign income 
taxes) with respect to a transaction involving stock or an

[[Page 44665]]

interest in a pass-through entity, and income or gain with respect to 
the stock or interest is or would have been described in paragraph 
(d)(1)(ii)(B)(1) or (2) of this section, then for purposes of 
allocating and apportioning deductions under paragraph (d)(1)(iv)(A) of 
this section, the deduction or loss is allocated and apportioned solely 
to the item of gross income described in paragraph (d)(1)(ii)(B)(1) or 
(2) of this section, as applicable, with respect to such tested unit, 
regardless of whether there is any gross income included in such item 
during the CFC inclusion year.
    (D) Effect of potential and actual changes in taxes paid or 
accrued. Except as otherwise provided in this paragraph (d)(1)(iv)(D), 
the amount of current year taxes paid or accrued with respect to an 
item of gross income (as described in paragraph (d)(1)(ii) of this 
section) does not take into account any potential reduction in foreign 
income taxes that may occur by reason of a future distribution to 
shareholders of all or part of such income. However, to the extent the 
foreign income taxes paid or accrued by the controlled foreign 
corporation are reasonably certain to be returned to a shareholder by 
the foreign country imposing such taxes, directly or indirectly, 
through any means (including, but not limited to, a refund, credit, 
payment, discharge of an obligation, or any other method) on a 
subsequent distribution to such shareholder, the foreign income taxes 
are not treated as paid or accrued for purposes of paragraphs 
(d)(1)(iv) or (d)(5) of this section. In addition, foreign income taxes 
that have not been paid or accrued because they are contingent on a 
future distribution of earnings (or other similar transaction, such as 
a loan to a shareholder) are not taken into account for purposes of 
paragraph (d)(1)(iv) or (d)(5) of this section. If, pursuant to section 
905(c) and Sec.  1.905-3, a redetermination of U.S. tax liability is 
required to account for the effect of a foreign tax redetermination (as 
defined in Sec.  1.905-3(a)), paragraph (d)(1)(iv) and (d)(5) of this 
section are applied in the adjusted year taking into account the 
adjusted amount of the redetermined foreign tax.
    (v) Portfolio interest and treatment of certain income under 
foreign tax credit rules. Portfolio interest, as described in section 
881(c), does not qualify for the high-tax exception under section 
954(b)(4) and this paragraph (d). For rules concerning the treatment 
for foreign tax credit purposes of distributions of passive income 
excluded from foreign base company income, insurance income or tested 
income under section 954(b)(4) and this paragraph (d), see section 
904(d)(3)(E) and Sec.  1.904-4(c)(7)(iii).
    (2) Tested unit rules--(i) In general. Subject to the combination 
rule in paragraph (d)(2)(iii) of this section, the term tested unit 
means any corporation, interest, or branch described in paragraphs 
(d)(2)(i)(A) through (C) of this section. See paragraph (d)(9)(iii)(C) 
of this section for an example that illustrates the application of the 
tested unit rules set forth in this paragraph (d)(2).
    (A) A controlled foreign corporation (as defined in section 
957(a)).
    (B) An interest held directly or indirectly by a controlled foreign 
corporation in a pass-through entity that is--
    (1) A tax resident (as described in Sec.  1.267A-5(a)(23)(i)) of 
any foreign country; or
    (2) Not treated as fiscally transparent (as determined under the 
principles of Sec.  1.267A-5(a)(8)) for purposes of the tax law of the 
foreign country of which the controlled foreign corporation is a tax 
resident or, in the case of an interest in a pass-through entity held 
by a controlled foreign corporation indirectly through one or more 
other tested units, for purposes of the tax law of the foreign country 
of which the tested unit that directly (or indirectly through the 
fewest number of transparent interests) owns the interest is a tax 
resident.
    (C) A branch (as described in Sec.  1.267A-5(a)(2)) the activities 
of which are carried on directly or indirectly (through one or more 
pass-through entities) by a controlled foreign corporation. However, in 
the case of a branch that does not give rise to a taxable presence 
under the tax law of the foreign country where the branch is located, 
the branch is a tested unit only if, under the tax law of the foreign 
country of which the controlled foreign corporation is a tax resident 
(or, if applicable, under the tax law of a foreign country of which the 
tested unit that directly (or indirectly, through the fewest number of 
transparent interests) carries on the activities of the branch is a tax 
resident), an exclusion, exemption, or other similar relief (such as a 
preferential rate) applies with respect to income attributable to the 
branch. For purposes of this paragraph (d)(2)(i)(C), similar relief 
does not include a deduction or credit against the tax imposed under 
such tax law for tax paid to another foreign country with respect to 
income attributable to the branch. If a controlled foreign corporation 
carries on directly or indirectly less than all of the activities of a 
branch (for example, if the activities are carried on indirectly 
through an interest in a partnership), then the rules in this paragraph 
(d)(2)(i)(C) apply separately with respect to the portion (or portions, 
if carried on indirectly through more than one chain of pass-through 
entities) of the activities carried on by the controlled foreign 
corporation. See paragraphs (d)(9)(iii)(C)(3) and (d)(9)(iii)(C)(4) 
(Example 3) of this section for illustrations of the application of the 
rules set forth in this paragraph (d)(2)(i)(C).
    (ii) Items attributable to only one tested unit. For purposes of 
paragraph (d) of this section, if an item is attributable to more than 
one tested unit in a tier of tested units, the item is considered 
attributable only to the lowest-tier tested unit. Thus, for example, if 
a controlled foreign corporation directly owns a branch tested unit 
described in paragraph (d)(2)(i)(C) of this section, and an item of 
gross income is (under the rules of paragraph (d)(1)(iii) of this 
section) attributable to both the branch tested unit and the controlled 
foreign corporation tested unit, then the item is considered 
attributable only to the branch tested unit.
    (iii) Combination rule--(A) In general. Except as provided in 
paragraph (d)(2)(iii)(B) of this section, tested units of a controlled 
foreign corporation (including the controlled foreign corporation 
tested unit) that meet the requirements in paragraph (d)(2)(iii)(A)(1) 
of this section are treated as a single tested unit, and tested units 
that meet the requirements of paragraph (d)(2)(iii)(A)(2) of this 
section (after taking into account the application of paragraph 
(d)(2)(iii)(A)(1) of this section) are also treated as a single tested 
unit.
    (1) Subject to tax in same foreign country. The tested units are 
tax residents of, or located in (in the case of a tested unit that is 
branch, or a portion of the activities of a branch, that gives rise to 
a taxable presence under the tax law of a foreign country), the same 
foreign country. For purposes of this paragraph (d)(2)(iii)(A)(1), in 
the case of a tested unit that is an interest in a pass-through entity 
or a portion of the activities of a branch, a reference to the tax 
residency or location of the tested unit means the tax residency of the 
entity the interest in which is the tested unit or the location of the 
branch, as applicable. See paragraphs (d)(9)(iii)(C)(2)(i) and 
(d)(9)(iii)(C)(5) (Example 3) for illustrations of the application of 
the rule set forth in this paragraph (d)(2)(iii)(A)(1).
    (2) De minimis gross income. The gross income attributable to the 
tested

[[Page 44666]]

unit (determined under paragraph (d)(1)(iii) of this section and 
translated into U.S. dollars, if necessary, at the appropriate exchange 
rate under section 989(b)(3)) is less than the lesser of one percent of 
gross income of the controlled foreign corporation, or $250,000. 
Appropriate adjustments are made for purposes of applying this 
paragraph (d)(2)(iii)(A)(2) if assets, including assets of or interests 
in a tested unit or a transparent entity, are transferred, including by 
issuance, contribution or distribution, if a significant purpose of the 
transfer is to qualify for the rule in this paragraph (d)(2)(iii), or 
if the rule is otherwise availed of with a significant purpose of 
avoiding the purposes of section 951, 951A, or 954(b)(4). A purpose may 
be a significant purpose even though it is outweighed by other purposes 
(taken together or separately). See paragraph (d)(9)(iii)(D) (Example 
4) of this section for an example that illustrates the application of 
the rule set forth in this paragraph (d)(2)(iii)(A)(2).
    (B) Exception for nontaxed branches. The rule in paragraph 
(d)(2)(iii)(A) of this section does not apply to a tested unit that is 
described in paragraph (d)(2)(i)(C) of this section if the branch 
described in paragraph (d)(2)(i)(C) of this section does not give rise 
to a taxable presence under the tax law of the foreign country where 
the branch is located. See paragraph (d)(9)(iii)(C)(4) (Example 4) of 
this section for an illustration of the application of the rule set 
forth in this paragraph (d)(2)(iii)(B).
    (C) Effect of combination rule. If, pursuant to paragraph 
(d)(2)(iii)(A) of this section, tested units are treated as a single 
tested unit, then, solely for purposes of paragraph (d) of this 
section, items of gross income attributable to such tested units, and 
items of deduction and foreign taxes allocated and apportioned to such 
gross income, are aggregated for purposes of determining the combined 
tested unit's tentative net items, and foreign income taxes paid or 
accrued with respect to such tentative net items.
    (3) Applicable financial statement rules--(i) In general. For 
purposes of this paragraph (d), the term applicable financial statement 
means a statement or information described in paragraphs (d)(3)(i)(A) 
through (H) of this section. A statement or information described in 
one of these paragraphs qualifies as an applicable financial statement 
only if the statement or information described in all preceding 
paragraphs is not readily available. For example, the statement or 
information described in paragraph (d)(3)(i)(C) of this section 
qualifies as an applicable financial statement only if the statement or 
information described in paragraphs (d)(3)(i)(A) and (B) of this 
section is not readily available. For purposes of paragraphs 
(d)(3)(i)(A) through (H) of this section, the term ``separate-entity'' 
includes the term ``separate-branch,'' as applicable. For purposes of 
paragraph (d) of this section, in the case of a tested unit or a 
transparent interest that is an interest in a pass-through entity or a 
portion of the activities of a branch, a reference to the applicable 
financial statement of the tested unit or the transparent interest 
means the applicable financial statement of the entity or the branch, 
as applicable.
    (A) An audited separate-entity financial statement that is prepared 
in accordance with U.S. generally accepted accounting principles 
(``U.S. GAAP'').
    (B) An audited separate-entity financial statement that is prepared 
on the basis of international financial reporting standards (``IFRS'').
    (C) An audited separate-entity financial statement that is prepared 
on the basis of the generally accepted accounting principles of the 
jurisdiction in which the entity is organized or the activities are 
located (``local-country GAAP'').
    (D) An unaudited separate-entity financial statement that is 
prepared in accordance with U.S. GAAP.
    (E) An unaudited separate-entity financial statement that is 
prepared on the basis of IFRS.
    (F) An unaudited separate-entity financial statement that is 
prepared on the basis of local-country GAAP.
    (G) Separate-entity records used for tax reporting.
    (H) Separate-entity records used for internal management controls 
or regulatory or other similar purposes.
    (ii) Failure to prepare an applicable financial statement. If an 
applicable financial statement is not prepared for a tested unit or a 
transparent interest, the items of gross income, deduction, disregarded 
payments, and any other items required to apply paragraph (d) of this 
section that would be properly reflected on an applicable financial 
statement of the tested unit or transparent interest must be 
determined. Such items are treated as properly reflected on the 
applicable financial statement of the tested unit or transparent 
interest for purposes of applying paragraph (d) of this section.
    (iii) Transparent interests. If a tested unit of a controlled 
foreign corporation or an entity an interest in which is a tested unit 
of a controlled foreign corporation holds a transparent interest, 
either directly or indirectly through one or more other transparent 
interests, then, for purposes of paragraph (d) of this section (and 
subject to the rule of paragraph (d)(2)(iii) of this section), items of 
the controlled foreign corporation properly reflected on the applicable 
financial statement of the transparent interest are treated as being 
properly reflected on the applicable financial statement of the tested 
unit, as modified under paragraph (d)(1)(iii)(B) of this section. See 
paragraph (d)(9)(iii)(C)(6) (Example 3) of this section for an 
illustration of the application of the rule set forth in this paragraph 
(d)(3)(iii).
    (iv) Items not taken into account for financial accounting 
purposes. For purposes of this paragraph (d), an item in a CFC 
inclusion year that is not taken into account in such year for 
financial accounting purposes, and therefore not property reflected on 
an applicable financial statement of a tested unit or a transparent 
interest, is treated as properly reflected on such applicable financial 
statement to the extent it would have been so reflected if the item 
were taken into account for financial accounting purposes in such CFC 
inclusion year.
    (v) Adjustments to items reflected on the applicable financial 
statement--(A) In general. Appropriate adjustments are made if an item 
is included or not included on an applicable financial statement, or if 
a disregarded payment described in paragraph (d)(1)(iii)(B) of this 
section is made or not made, with a significant purpose of avoiding the 
purposes of section 951, 951A, 954(b)(4), or paragraph (d) of this 
section. Adjustments pursuant to this paragraph (d)(3)(v) include 
attributing all or a portion of the item to one or more tested units or 
transparent interests in a manner that reflects the substance of the 
transaction, or segregating all or a portion of the item and treating 
it as attributable to a separate item of gross income described in 
paragraph (d)(1)(ii) of this section. The combination rule of paragraph 
(d)(2)(iii)(A)(1) of this section does not apply to an item that is 
segregated and treated as a separate item of gross income under this 
paragraph (d)(3)(v). See also Sec.  1.904-4(f)(2)(vi)(E) for rules 
relating to the determination of the amount of disregarded payments 
taken into account under paragraph (d)(1)(iii)(B) of this section.
    (B) Factually unrelated items--(1) Gross income. Without limiting 
the scope of a significant avoidance purpose as described in paragraph 
(d)(3)(v)(A) of this section, gross income generally is treated as 
included on an applicable financial statement with a significant 
purpose of avoiding the purposes of

[[Page 44667]]

section 951, 951A, 954(b)(4), or paragraph (d) of this section if it is 
factually unrelated to the other activities of the relevant entity or 
branch and is subject to tax at a materially different effective rate 
of foreign tax than the other activities of the tested unit (or entity, 
an interest in which is a tested unit) to which the item would 
otherwise be attributable, or is subject to a withholding tax imposed 
by a foreign country other than the country of residence of the tested 
unit. For purposes of this paragraph (d)(3)(v)(B)(1), an effective rate 
of foreign tax is materially different than the effective rate of 
foreign tax on other activities if it differs by at least 10 percentage 
points.
    (2) Deductions. Without limiting the scope of a significant 
avoidance purpose as described in paragraph (d)(3)(v)(A) of this 
section, a deduction generally is treated as included on an applicable 
financial statement with a significant purpose of avoiding the purposes 
of section 951, 951A, 954(b)(4), or paragraph (d) of this section if it 
is not incurred in connection with funding, or in the ordinary course 
of, the preexisting activities of the relevant entity or branch and is 
not deductible, in whole or in part, in the country of residence or 
location of the tested unit (or entity, an interest in which is a 
tested unit) to which the item would otherwise be attributable.
    (4) Effective rate at which foreign taxes are imposed--(i) In 
general. For a CFC inclusion year of a controlled foreign corporation, 
the effective rate of foreign tax with respect to the tentative net 
items of the controlled foreign corporation is determined separately 
for each such item. The effective foreign tax rate at which taxes are 
imposed on a tentative net item is--
    (A) The U.S. dollar amount of foreign income taxes paid or accrued 
with respect to the tentative net item under paragraph (d)(5) of this 
section; divided by
    (B) The U.S. dollar amount of the tentative net item, increased by 
the amount of foreign income taxes described in paragraph (d)(4)(i)(A) 
of this section.
    (ii) Undefined value or negative effective foreign tax rate. If the 
amount described in paragraph (d)(4)(i)(A) of this section is positive 
and the amount described in paragraph (d)(4)(i)(B) of this section is 
zero or negative, the effective rate of foreign tax with respect to the 
tentative net item is deemed to be greater than 90 percent of the rate 
that would apply if the income were subject to the maximum rate of tax 
specified in section 11.
    (5) Foreign income taxes paid or accrued with respect to a 
tentative net item. For a CFC inclusion year, the amount of foreign 
income taxes paid or accrued by a controlled foreign corporation with 
respect to a tentative net item (as described in paragraph (d)(1)(iv) 
of this section) for purposes of section 954(b)(4) and this paragraph 
(d) is the amount of the controlled foreign corporation's current year 
taxes (as defined in Sec.  1.960-1(b)(4)) that are allocated and 
apportioned to the related item of gross income under the rules of 
paragraph (d)(1)(iv) of this section. See paragraphs 
(d)(9)(iii)(A)(2)(iv) (Example 1) and (d)(9)(iii)(B)(2)(v) (Example 2) 
of this section for illustrations of the application of this paragraph 
(d)(5).
    (6) Rules regarding the high-tax election--(i) Manner--(A) In 
general. An election is made under this paragraph (d)(6) by the 
controlling domestic shareholders (as defined in paragraph (d)(8)(iii) 
of this section) with respect to a controlled foreign corporation for a 
CFC inclusion year (a high-tax election) in accordance with the rules 
provided in forms or instructions and by--
    (1) Filing the statement required under paragraph (d)(6)(vi)(A) of 
this section with a timely filed original federal income tax return, or 
with an amended federal income tax return for the U.S. shareholder 
inclusion year of each controlling domestic shareholder in which or 
with which such CFC inclusion year ends;
    (2) Providing any notices required under paragraph (d)(6)(vi)(B) of 
this section;
    (3) Substantiating, as described in paragraph (d)(6)(vii) of this 
section, its determination as to whether, with respect to each item of 
gross income, the requirement set forth in paragraph (d)(1)(i)(B) of 
this section is satisfied; and
    (4) Providing any additional information required by applicable 
administrative pronouncements.
    (B) Election (or revocation) made with an amended income tax 
return. In the case of an election (or revocation) made with an amended 
federal income tax return--
    (1) The election (or revocation) must be made on an amended federal 
income tax return duly filed within 24 months of the unextended due 
date of the original federal income tax return for the U.S. shareholder 
inclusion year with or within which the CFC inclusion year ends;
    (2) Each United States shareholder of the controlled foreign 
corporation as of the end of the controlled foreign corporation's 
taxable year to which the election relates must file amended federal 
income tax returns (or timely original income tax returns if a return 
has not yet been filed) reflecting the effect of such election (or 
revocation) for the U.S. shareholder's inclusion year with or within 
which the CFC inclusion year ends as well as for any other taxable year 
in which the U.S. tax liability of the United States shareholder would 
be increased by reason of the election (or revocation) (or in the case 
of a partnership if any item reported by the partnership or any 
partnership-related item would change as a result of the election (or 
revocation)) within a single period no greater than six months within 
the 24-month period described in paragraph (d)(6)(i)(B)(1) of this 
section; and
    (3) Each United States shareholder of the controlled foreign 
corporation as of the end of the controlled foreign corporation's 
taxable year to which the election relates must pay any tax due as a 
result of such adjustments within a single period no longer than six 
months within the 24-month period described in paragraph 
(d)(6)(i)(B)(1) of this section;
    (C) Special rules for United States shareholders that are domestic 
partnerships. In the case of a United States shareholder that is a 
domestic partnership, paragraphs (d)(6)(i)(A) and (B) and (d)(6)(iii) 
of this section are applied by substituting ``Form 1065 (or successor 
form)'' for ``federal income tax return'' and by substituting ``amended 
Form 1065 (or successor form) or administrative adjustment request (as 
described in Sec.  301.6227-1), as applicable,'' for ``amended federal 
income tax return'', each place that it appears.
    (D) Special rules for United States shareholders that hold an 
interest in the controlled foreign corporation through a partnership. A 
United States shareholder that is a partner in a partnership that is 
also a United States shareholder in the controlled foreign corporation 
must generally file an amended return, as required under paragraph 
(d)(6)(i)(B)(2) of this section, and must generally pay any additional 
tax owed as required under paragraph (d)(6)(i)(B)(3) of this section. 
However, in the case of a United States shareholder that is a partner 
in a partnership that duly files an administrative adjustment request 
under paragraph (d)(6)(i)(B)(1) or (2) of this section, the partner is 
treated as having satisfied the requirements of paragraphs 
(d)(6)(i)(B)(2) and (3) of this section with respect to the interest 
held through that partnership if:

[[Page 44668]]

    (1) The partnership files an administrative adjustment request 
within the time described in paragraph (d)(6)(i)(B); and,
    (2) The partnership and the partners comply with the requirements 
of section 6227. See Sec. Sec.  301.6227-1 through 301.6227-3 for rules 
relating to administrative adjustment requests.
    (ii) Scope. A high-tax election applies with respect to each item 
of gross income described in paragraph (d)(1)(ii) of this section of 
the controlled foreign corporation for the CFC inclusion year and is 
binding on all United States shareholders of the controlled foreign 
corporation.
    (iii) Revocation. A high-tax election may be revoked by the 
controlling domestic shareholders of the controlled foreign corporation 
in the same manner as prescribed for an election made on an amended 
federal income tax return as described in paragraph (d)(6)(i) of this 
section.
    (iv) Failure to satisfy election requirements. A high-tax election 
(or revocation) is valid only if all of the requirements in paragraph 
(d)(6)(i)(A) of this section, including the requirement to provide 
notice under paragraph (d)(6)(i)(A)(2) of this section, are satisfied.
    (v) Rules applicable to CFC groups--(A) In general. In the case of 
a controlled foreign corporation that is a member of a CFC group, a 
high-tax election is made under paragraph (d)(6)(i) of this section, or 
revoked under paragraph (d)(6)(iii) of this section, with respect to 
all controlled foreign corporations that are members of the CFC group, 
and the rules in paragraphs (d)(6)(i) through (iv) of this section 
apply by reference to the CFC group.
    (B) Determination of the CFC group--(1) Definition. Subject to the 
rules in paragraphs (d)(6)(v)(B)(2) and (3) of this section, the term 
CFC group means an affiliated group as defined in section 1504(a) 
without regard to section 1504(b)(1) through (6), except that section 
1504(a) is applied by substituting ``more than 50 percent'' for ``at 
least 80 percent'' each place it appears, and section 1504(a)(2)(A) is 
applied by substituting ``or'' for ``and.'' For purposes of this 
paragraph (d)(6)(v)(B), stock ownership is determined by applying the 
constructive ownership rules of section 318(a), other than section 
318(a)(3)(A) and (B), by applying section 318(a)(4) only to options (as 
defined in Sec.  1.1504-4(d)) that are reasonably certain to be 
exercised as described in Sec.  1.1504-4(g), and by substituting in 
section 318(a)(2)(C) ``5 percent'' for ``50 percent.''
    (2) Member of a CFC group. The determination of whether a 
controlled foreign corporation is included in a CFC group is made as of 
the close of the CFC inclusion year of the controlled foreign 
corporation that ends with or within the taxable years of the 
controlling domestic shareholders. One or more controlled foreign 
corporations are members of a CFC group if the requirements of 
paragraph (d)(6)(v)(B)(1) of this section are satisfied as of the end 
of the CFC inclusion year of at least one of the controlled foreign 
corporations, even if the requirements are not satisfied as of the end 
of the CFC inclusion year of all controlled foreign corporations. If 
the controlling domestic shareholders do not have the same taxable 
year, the determination of whether a controlled foreign corporation is 
a member of a CFC group is made with respect to the CFC inclusion year 
that ends with or within the taxable year of the majority of the 
controlling domestic shareholders (determined by voting power) or, if 
no such majority taxable year exists, the calendar year. See paragraph 
(d)(9)(iii)(E) (Example 5) of this section for an example that 
illustrates the application of the rule set forth in this paragraph 
(d)(6)(v)(B)(2).
    (3) Controlled foreign corporations included in only one CFC group. 
A controlled foreign corporation cannot be a member of more than one 
CFC group. If a controlled foreign corporation would be a member of 
more than one CFC group under paragraph (d)(6)(v)(E)(2) of this 
section, then ownership of stock of the controlled foreign corporation 
is determined by applying paragraph (d)(6)(v)(B) of this section 
without regard to section 1504(a)(2)(B) or, if applicable, by reference 
to the ownership existing as of the end of the first CFC inclusion year 
of a controlled foreign corporation that would cause a CFC group to 
exist.
    (vi) Rules regarding the statement and the notice requirements. The 
following rules apply for purposes of the statement and notice 
requirements in this paragraph (d)(6).
    (A) Statement required to be filed with a tax return. The statement 
required by paragraph (d)(6)(i)(A)(1) of this section must set forth 
the name, country of organization, and U.S. employer identification 
number (if applicable) of the foreign corporation, the name, address, 
stock interests, and U.S. employer identification number of each 
controlling domestic shareholder (or, if applicable, the agent 
described in Sec.  1.1502-77(a) with respect to the consolidated group 
of which the controlling domestic shareholder is a member) approving 
the action, and the names, addresses, U.S. employer identification 
numbers, and stock interests of all other domestic shareholders 
notified of the action taken. Such statement must describe the nature 
of the action taken on behalf of the foreign corporation and the 
taxable year for which made, and identify a designated shareholder who 
retains a jointly executed consent confirming that such action has been 
approved by all of the controlling domestic shareholders and containing 
the signature of a principal officer of each such shareholder (or the 
agent described in Sec.  1.1502-77(a), if applicable).
    (B) Notice. On or before the filing date described in paragraph 
(d)(6)(i)(A)(1) of this section (or paragraph (d)(6)(i)(B)(1) of this 
section if filing an amended income tax return), the controlling 
domestic shareholders must provide written notice of the election made 
to all other persons known by them to be domestic shareholders who own 
(within the meaning of section 958(a)) stock of the foreign 
corporation. Such notice must set forth the name, country of 
organization and U.S. employer identification number (if applicable) of 
the foreign corporation, and the names, addresses, and stock interests 
of the controlling domestic shareholders. Such notice must describe the 
nature of the action taken on behalf of the foreign corporation and the 
taxable year for which made, and identify a designated shareholder who 
retains a jointly executed consent confirming that such action has been 
approved by all of the controlling domestic shareholders and containing 
the signature of a principal officer of each such shareholder (or the 
agent described in Sec.  1.1502-77(a), if applicable).
    (vii) Substantiation requirements--(A) In general. If an election 
under section 954(b)(4) and paragraph (d)(6) of this section is in 
effect for a controlled foreign corporation for a CFC inclusion year, 
then each United States shareholder of that controlled foreign 
corporation with respect to the CFC inclusion year is required to 
maintain sufficient documentation (as described in paragraph 
(d)(6)(vii)(B) of this section) to establish that the taxpayer 
reasonably concluded that each item of gross income of the controlled 
foreign corporation satisfied (or did not satisfy) the requirement set 
forth in paragraph (d)(1)(i)(B) of this section. The substantiating 
documents must be in existence as of the filing date of the income tax 
return described in paragraph (d)(6)(i)(A) of this section (or 
paragraph (d)(6)(i)(B)(1) of this section if filing an amended income 
tax return) and must be provided to the

[[Page 44669]]

Commissioner within 30 days of being requested by the Commissioner 
(unless otherwise agreed between the Commissioner and the taxpayer).
    (B) Sufficient documentation. For purposes of paragraph 
(d)(6)(vii)(A) of this section, the term sufficient documentation means 
documentation that accurately and completely describes the computations 
related to the high-tax exception under section 954(b)(4) and this 
paragraph (d)(6) with respect to each item of gross income of the 
controlled foreign corporation. Sufficient documentation must include 
the information described in paragraphs (d)(6)(vii)(B)(1) through (5) 
of this section.
    (1) A description of each of the tested units and transparent 
interests of the controlled foreign corporation, including a detailed 
explanation of any tested units that are combined either under the 
same-country combination rule, or the de minimis combination rule.
    (2) A detailed list of the items of gross income and deductions 
attributable to each tested unit and the applicable financial statement 
of each tested unit and transparent interest.
    (3) A list of disregarded payments taken into account under 
paragraph (d)(1)(iii)(B) of this section for purposes of determining 
the gross income attributable to a tested unit.
    (4) A list of current year foreign taxes paid or accrued with 
respect to each item of gross income, as described in paragraph (d)(5) 
of this section.
    (5) The effective tax rate calculation for each item of gross 
income attributable to a tested unit, as described in paragraph 
(d)(4)(i) of this section.
    (7) Anti-abuse rule. Appropriate adjustments are made if an 
applicable instrument is issued or acquired, or a reverse hybrid is 
formed or availed of, with a significant purpose of avoiding the 
purposes of section 951, 951A, 954(b)(4), or paragraph (d) of this 
section. Adjustments pursuant to this paragraph (d)(7) include 
adjustments to foreign income taxes paid or accrued with respect to a 
tentative net item as determined under paragraph (d)(5) of this 
section, and adjustments to the tentative net item as determined under 
paragraph (d)(1)(iv) of this section. See paragraph (d)(9)(iii)(F) 
(Example 6) of this section for an example that illustrates the 
application of the anti-abuse rule set forth in this paragraph (d)(7).
    (8) Definitions. The following definitions apply for purposes of 
this paragraph (d).
    (i) Applicable instrument. The term applicable instrument means an 
instrument or arrangement described in paragraph (d)(8)(i)(A) or (B) of 
this section. For purposes of this paragraph (d)(8)(i), an instrument 
or arrangement includes a sale-repurchase transaction (including as 
described in Sec.  1.861-2(a)(7)), or other similar transaction or 
series of related transactions in which legal title to property is 
transferred and the property (or similar property, such as securities 
of the same class and issue) is reacquired or expected to be 
reacquired.
    (A) Deductions to issuer. An instrument or arrangement is described 
in this paragraph (d)(8)(i)(A) if, for federal income tax purposes, the 
instrument or arrangement gives rise to deductions to the issuer but, 
under the tax law of a foreign country, does not give rise to 
deductions (or gives rise to deductions that are disallowed), in whole 
or in part, to the issuer.
    (B) Income to holder. An instrument or arrangement is described in 
this paragraph (d)(8)(i)(B) if, under the tax law of a foreign country, 
the instrument or arrangement gives rise to income included in the 
holder's income but, for federal income tax purposes, does not give 
rise to income to the holder.
    (ii) CFC inclusion year. The term CFC inclusion year has the 
meaning provided in Sec.  1.951A-1(f)(1).
    (iii) Controlling domestic shareholders. The term controlling 
domestic shareholders of a controlled foreign corporation means the 
United States shareholders (as defined in section 951(b) or 953(c)) 
who, in the aggregate, own (within the meaning of section 958(a)) more 
than 50 percent of the total combined voting power of all classes of 
the stock of such foreign corporation entitled to vote and who 
undertake to act on its behalf. If United States shareholders of the 
controlled foreign corporation do not, in the aggregate, own (within 
the meaning of section 958(a)) more than 50 percent of the total 
combined voting power of all classes of the stock of such foreign 
corporation entitled to vote, the controlling United States 
shareholders of the controlled foreign corporation are all those United 
States shareholders who own (within the meaning of section 958(a)) 
stock of such corporation.
    (iv) Disregarded entity. The term disregarded entity means an 
entity that is disregarded as an entity separate from its owner, as 
described in Sec.  301.7701-2(c)(2)(i) of this chapter.
    (v) Disregarded payment. The term disregarded payment means any 
amount described in paragraph (d)(8)(v)(A) or (B) of this section.
    (A) Transfers to or from a disregarded entity. An amount described 
in this paragraph (d)(8)(iv)(A) is any amount that is transferred to or 
from a disregarded entity in connection with a transaction that is 
disregarded for federal income tax purposes and that is properly 
reflected on the applicable financial statement of a tested unit or a 
transparent interest.
    (B) Other disregarded amounts. An amount described in this 
paragraph (d)(8)(iv)(B) is any amount properly reflected on the 
applicable financial statement of a tested unit or transparent interest 
that would constitute an item of income, gain, deduction, or loss 
(other than an amount described in paragraph (d)(8)(iv)(A) of this 
section), a distribution to or contribution from the owner of the 
tested unit, transparent interest or entity, or a payment in exchange 
for property if the transaction to which the amount is attributable 
were regarded for federal income tax purposes.
    (vi) Indirectly. The term indirectly, when used in reference to 
ownership, means ownership through one or more pass-through entities.
    (vii) Pass-through entity. The term pass-through entity means a 
partnership, a disregarded entity, or any other person (whether 
domestic or foreign) other than a corporation to the extent that 
income, gain, deduction, or loss of the person is taken into account in 
determining the income or loss of a controlled foreign corporation that 
owns, directly or indirectly, interests in the person.
    (viii) Reverse hybrid. The term reverse hybrid has the meaning 
provided in Sec.  1.909-2(b)(1)(iv).
    (ix) Transparent interest. The term transparent interest means an 
interest in a pass-through entity (or the activities of a branch) that 
is not a tested unit.
    (x) U.S. shareholder inclusion year. The term U.S. shareholder 
inclusion year has the meaning provided in Sec.  1.951A-1(f)(7).
    (9) Examples--(i) Scope. This paragraph (d)(9) provides presumed 
facts and examples illustrating the application of the rules in 
paragraph (d) of this section.
    (ii) Presumed facts. For purposes of the examples in paragraph 
(d)(9)(iii) of this section, except as otherwise stated, the following 
facts are presumed:
    (A) USP is a domestic corporation.
    (B) CFC1X and CFC2X are controlled foreign corporations organized 
in, and tax residents of, Country X.
    (C) FDEX is a disregarded entity that is a tax resident of Country 
X.
    (D) FDE1Y and FDE2Y are disregarded entities that are tax residents 
of Country Y.

[[Page 44670]]

    (E) FPSY is an entity that is organized in, and a tax resident of, 
Country Y but is classified as a partnership for federal income tax 
purposes.
    (F) CFC1X, CFC2X, and the interests in FDEX, FDE1Y, FDE2Y, and FPSY 
are tested units (the CFC1X tested unit, CFC2X tested unit, FDEX tested 
unit, FDE1Y tested unit, FDE2Y tested unit, and FPSY tested unit, 
respectively).
    (G) CFC1X, CFC2X, FDEX, FDE1Y and FDE2Y conduct activities in the 
foreign country in which they are tax resident, and properly reflect 
items of income, gain, deduction, and loss on separate applicable 
financial statements.
    (H) All entities have calendar taxable years (for both federal 
income tax purposes and for purposes of the relevant foreign country) 
and use the Euro ([euro]) as their functional currency. At all relevant 
times [euro]1 = $1.
    (I) The maximum rate of tax specified in section 11 for the CFC 
inclusion year is 21 percent.
    (J) Neither CFC1X nor CFC2X directly or indirectly earns income 
described in section 952(b), or has any items of income, gain, 
deduction, or loss. In addition, no tested unit of CFC1X or CFC2X makes 
or receives disregarded payments.
    (K) No tested unit is eligible for the de minimis combination rule 
of paragraph (d)(2)(iii)(A)(2) of this section.
    (L) An election made under section 954(b)(4) and paragraph (d)(6) 
of this section is effective with respect to CFC1X and CFC2X, as 
applicable, for the CFC inclusion year.
    (iii) Examples--(A) Example 1: Effect of disregarded interest--(1) 
Facts--(i) Ownership. USP owns all of the stock of CFC1X, and CFC1X 
owns all of the interests of FDE1Y.
    (ii) Gross income and deductions (other than foreign income taxes). 
In Year 1, CFC1X generates [euro]100x of gross income from services 
performed for unrelated parties and properly reflects that gross income 
on the applicable financial statement of FDE1Y. The [euro]100x of 
services income is general category income under Sec.  1.904-4(d). In 
Year 1, FDE1Y accrues and pays [euro]20x of interest to CFC1X that is 
deductible for Country Y tax purposes but is disregarded for federal 
income tax purposes. The [euro]20x of disregarded interest income 
received by CFC1X from FDE1Y is properly reflected on CFC1X's 
applicable financial statement, and the [euro]20x of disregarded 
interest expense paid from FDE1Y to CFC1X is properly reflected on 
FDE1Y's applicable financial statement.
    (iii) Foreign income taxes. Country X imposes no tax on net income, 
and Country Y imposes a 25% tax on net income. For Country Y tax 
purposes, FDE1Y (which is not disregarded under Country Y tax law) has 
[euro]80x of taxable income ([euro]100x of services income from the 
unrelated parties, less a [euro]20x deduction for the interest paid to 
CFC1X). Accordingly, FDE1Y incurs a Country Y income tax liability of 
[euro]20x (([euro]100x-[euro]20x) x 25%) with respect to Year 1, the 
U.S. dollar amount of which is $20x.
    (2) Analysis--(i) Items of gross income. Under paragraph (d)(1)(ii) 
of this section, CFC1X has [euro]100x of general category gross income 
that is divided into two general gross items, one item that is 
attributable to the CFC1X tested unit and one item that is attributable 
to the FDE1Y tested unit under paragraph (d)(1)(iii) of this section. 
Without regard to the [euro]20x interest payment from FDE1Y to CFC1X, 
the gross income attributable to the CFC1X tested unit would be [euro]0 
(that is, the [euro]20x of interest income properly reflected on the 
applicable financial statement of CFC1X would be reduced by [euro]20x, 
the amount attributable to the payment that is disregarded for federal 
income tax purposes). Similarly, without regard to the [euro]20x 
interest payment from FDE1Y to CFC1X, the gross income attributable to 
the FDE1Y tested unit would be [euro]100x (that is, the [euro]100x of 
services income properly reflected on the applicable financial 
statement of FDE1Y, unreduced by the [euro]20x disregarded payment made 
from FDE1Y to CFC1X). However, under paragraph (d)(1)(iii)(B) of this 
section, the gross income attributable to each of the CFC1X tested unit 
and the FDE1Y tested unit is adjusted by [euro]20x, the amount of the 
disregarded interest payment from FDE1Y to CFC1X that is deductible for 
Country Y tax purposes. Accordingly, the item of gross income 
attributable to the CFC1X tested unit (the ``CFC1X general gross 
item'') is [euro]20x ([euro]0 + [euro]20x) and the item of gross income 
attributable to the FDE1Y tested unit (the ``FDE1Y general gross 
item'') is [euro]80x ([euro]100x-[euro]20x), both of which are general 
gross items under paragraph (d)(1)(ii)(A) of this section.
    (ii) Foreign income tax deduction. Under paragraph (d)(1)(iv) of 
this section, CFC1X's tentative net items are computed by treating the 
CFC1X general gross item and the FDE1Y general gross item each as in a 
separate income group (the ``CFC1X income group'' and the ``FDE1Y 
income group'') and by allocating and apportioning CFC1X's deductions 
for current year taxes between the income groups under the principles 
of Sec.  1.960-1(d)(3) (CFC1X has no other deductions to allocate and 
apportion). Under paragraph (d)(1)(iv)(A) of this section, the 
[euro]20x deduction for Country Y income taxes is allocated and 
apportioned solely to the FDE1Y income group (the ``FDE1Y group tax''). 
None of the Country Y taxes are allocated and apportioned to the CFC1X 
income group under paragraph (d)(1)(iv) of this section and the 
principles of Sec.  1.904-6(b)(2), because none of the Country Y tax is 
imposed solely by reason of the disregarded interest payment.
    (iii) Tentative net items. Under paragraph (d)(1)(iv)(A) of this 
section, the tentative net item with respect to the FDE1Y income group 
(the ``FDE1Y tentative net item'') is [euro]60x (the FDE1Y general 
gross item of [euro]80x, less the [euro]20x deduction for the FDE1Y 
group tax). The tentative net item with respect to the CFC1X income 
group (the ``CFC1X tentative net item'') is [euro]20x.
    (iv) Foreign income taxes paid or accrued with respect to a 
tentative net item. Under paragraph (d)(5) of this section, the foreign 
income taxes paid or accrued with respect to a tentative net item is 
the U.S. dollar amount of the current year taxes that are allocated and 
apportioned to the item of gross income under the rules of paragraph 
(d)(1)(iv) of this section. Therefore, the foreign income taxes paid or 
accrued with respect to the FDE1Y tentative net item is $20x, the U.S. 
dollar amount of the FDE1Y group tax. The foreign income taxes paid or 
accrued with respect to the CFC1X tentative net item is $0, the U.S. 
dollar amount of the foreign tax allocated and apportioned to the CFC1X 
general gross item under paragraph (d)(1)(iv) of this section.
    (v) Effective foreign tax rate. The effective foreign tax rate is 
determined under paragraph (d)(4) of this section by dividing the U.S. 
dollar amount of foreign income taxes paid or accrued with respect to 
each respective tentative net item by the U.S. dollar amount of the 
tentative net item increased by the U.S. dollar amount of the relevant 
foreign income taxes. Therefore, the effective foreign tax rate with 
respect to the FDEY1 tentative net item is 25%, calculated by dividing 
$20x (the U.S. dollar amount of the foreign income taxes paid or 
accrued with respect to the FDE1Y tentative net item under paragraph 
(d)(5) of this section) by $80x (the sum of $60x, the U.S. dollar 
amount of the FDE1Y tentative net item, and $20x, the U.S. dollar 
amount of the foreign income taxes paid or accrued with respect to the 
FDE1Y tentative net item). The CFC1X tentative net item is not subject 
to any foreign income tax, so is subject to an effective foreign tax 
rate of 0%, calculated as $0 (the U.S. dollar amount of the foreign 
income taxes paid

[[Page 44671]]

or accrued with respect to the CFC1X tentative net item), divided by 
$20x (the U.S. dollar amount of the FDE1Y tentative net item).
    (vi) Qualification for the high-tax exception. The FDE1Y tentative 
net item is subject to an effective foreign tax rate (25%) that is 
greater than 18.9% (90% of the 21% maximum rate of tax specified in 
section 11). Therefore, the requirement of paragraph (d)(1)(i)(B) of 
this section is satisfied, and the FDEY1 general gross item qualifies 
under paragraph (d)(1)(i) of this section for the high-tax exception of 
section 954(b)(4) and, under paragraphs (a)(2) and (a)(6) of this 
section, is excluded from the gross foreign base company income and 
gross insurance income, respectively, of CFC1X; in addition, the FDE1Y 
general gross item is excluded from gross tested income under section 
951A(c)(2)(A)(i)(III) and Sec.  1.951A-2(c)(1)(iii). The CFC1X 
tentative net item is subject to an effective foreign tax rate of 0%. 
Therefore, the CFC1X tentative net item does not satisfy the 
requirement of paragraph (d)(1)(i)(B) of this section, and the CFC1X 
general gross item does not qualify under paragraph (d)(1)(i) of this 
section for the high-tax exception of section 954(b)(4) and, under 
paragraphs (a)(2) and (a)(6) of this section, is not excluded from the 
gross foreign base company income and gross insurance income of CFC1X; 
in addition, the CFC1X general gross item is not excluded from gross 
tested income under section 951A(c)(2)(A)(i)(III) and Sec.  1.951A-
2(c)(1)(iii).
    (B) Example 2: Effect of disregarded payment for services--(1) 
Facts--(i) Ownership. USP owns all of the stock of CFC1X. CFC1X owns 
all of the interests of FDE1Y. FDE1Y is a tax resident of Country Y, 
but is treated as fiscally transparent for Country X tax purposes, so 
that FDE1Y is subject to tax in Country Y and that CFC1X is subject to 
tax in Country X with respect to FDE1Y's activities.
    (ii) Gross income, deductions (other than for foreign income 
taxes), and disregarded payments. In Year 1, CFC1X generates 
[euro]1,000x of gross income from services to unrelated parties that 
would be gross tested income or gross foreign base company income 
without regard to paragraph (d)(1) of this section and that is properly 
reflected on the applicable financial statement of CFC1X. The 
[euro]1,000x of gross income for services is general category income 
under Sec.  1.904-4(d). In Year 1, CFC1X accrues and pays [euro]480x of 
deductible expenses to unrelated parties, [euro]280x of which is 
properly reflected on CFC1X's applicable financial statement and is 
definitely related solely to CFC1X's gross income reflected on its 
applicable financial statement, and [euro]200x of which is properly 
reflected on FDE1Y's applicable financial statement and is definitely 
related solely to FDE1Y's gross income reflected on its applicable 
financial statement. Country X law does not provide rules for the 
allocation or apportionment of these deductions to particular items of 
gross income. In Year 1, CFC1X also accrues and pays [euro]325x to 
FDE1Y for support services performed by FDE1Y in Country Y; the payment 
is disregarded for federal income tax purposes. The [euro]325x of 
disregarded support services income received by FDE1Y from CFC1X is 
properly reflected on FDE1Y's applicable financial statement, and the 
[euro]325x of disregarded support services expense paid from CFC1X to 
FDE1Y is properly reflected on CFC1X's applicable financial statement.
    (iii) Foreign income taxes. Country X imposes a 10% tax on net 
income, and Country Y imposes a 16% tax on net income. Country X allows 
a deduction, but not a credit, for foreign income taxes paid or accrued 
to another country (such as Country Y). For Country Y tax purposes, 
FDE1Y (which is not disregarded under Country Y tax law) has [euro]125x 
of taxable income ([euro]325x of support services income received from 
CFC1X, less a [euro]200x deduction for expenses paid to unrelated 
parties). Accordingly, FDE1Y incurs a Country Y income tax liability 
with respect to Year 1 of [euro]20x ([euro]125x x 16%), the U.S. dollar 
amount of which is $20x. For Country X tax purposes, CFC1X has 
[euro]500x of taxable income ([euro]1,000x of gross income for 
services, less a [euro]480x deduction for expenses paid to unrelated 
parties by CFC1X and FDE1Y and a [euro]20x deduction for Country Y 
taxes; Country X does not allow CFC1X a deduction for the [euro]325x 
paid to FDE1Y for support services because the [euro]325x payment is 
disregarded for Country X tax purposes). Accordingly, CFC1X incurs a 
Country X income tax liability with respect to Year 1 of [euro]50x 
([euro]500x x 10%), the U.S. dollar amount of which is $50x.
    (2) Analysis--(i) Items of gross income. Under paragraph (d)(1)(ii) 
of this section, CFC1X has [euro]1,000x of general category gross 
income that is divided into two general gross items, one item that is 
attributable to the CFC1X tested unit and one item that is attributable 
to the FDE1Y tested unit under paragraph (d)(1)(iii) of this section. 
Without regard to the [euro]325x payment for support services from 
CFC1X to FDE1Y, the gross income attributable to the CFC1X tested unit 
would be [euro]1,000x (that is, the [euro]1,000x of gross income from 
services properly reflected on the applicable financial statement of 
CFC1X, unreduced by the [euro]325x payment from CFC1X to FDE1Y that is 
disregarded for federal income tax purposes). Similarly, without regard 
to the [euro]325x payment for support services from CFC1X to FDE1Y, the 
gross income attributable to the FDE1Y tested unit would be [euro]0 
(that is, the [euro]325x of services income properly reflected on the 
applicable financial statement of FDE1Y, reduced by the [euro]325x 
disregarded payment). However, under paragraph (d)(1)(iii)(B) of this 
section, the gross income attributable to each of the CFCX1 tested unit 
and the FDE1Y tested unit is adjusted by [euro]325x, the amount of the 
disregarded services payment from CFC1X to FDE1Y. Accordingly, the item 
of gross income attributable to the CFC1X tested unit (the ``CFC1X 
general gross item'') is [euro]675x ([euro]1,000x-[euro]325x), and the 
item of gross income attributable to the FDE1Y tested unit (the ``FDE1Y 
general gross item'') is [euro]325x ([euro]0 + [euro]325x), both of 
which are general gross items under paragraph (d)(1)(ii)(A) of this 
section.
    (ii) Deductions (other than for foreign income taxes). Under 
paragraph (d)(1)(iv) of this section, CFC1X's tentative net items are 
computed by applying the principles of Sec.  1.960-1(d)(3), treating 
the CFC1X general gross item and the FDE1Y general gross item each as 
in a separate income group (the ``CFC1X income group'' and the ``FDE1Y 
income group'') and by allocating and apportioning CFC1X's deductions 
among the income groups. Under paragraph (d)(1)(iv)(B) of this section, 
the [euro]280x of deductible expenses properly reflected on the 
applicable financial statement of the CFC1X tested unit are allocated 
and apportioned to the CFC1X income group, and the [euro]200x of 
deductible expenses properly reflected on the applicable financial 
statement of the FDE1Y tested unit are allocated and apportioned to the 
FDE1Y income group.
    (iii) Foreign income tax deduction. CFC1X accrues foreign income 
tax in Year 1 of [euro]70x ([euro]50x imposed by Country X and 
[euro]20x imposed by Country Y). Under paragraph (d)(1)(iv)(A) of this 
section, the [euro]70x of foreign income tax is allocated and 
apportioned under the principles of Sec.  1.960-1(d)(3)(ii) (or under 
the principles of Sec.  1.904-6(b)(2) in the case of tax imposed solely 
by reason of a disregarded payment that gives rise to an adjustment 
under paragraph (d)(1)(iii)(B) of this section) to the FDE1Y income 
group and the CFC1X income group. The Country Y tax of

[[Page 44672]]

[euro]20x is imposed solely by reason of FDE1Y's receipt of a 
[euro]325x disregarded payment. As a result, the [euro]20x of Country Y 
tax is allocated and apportioned to the FDE1Y income group under the 
principles of Sec.  1.904-6(b)(2). If Country X had allowed a deduction 
for the disregarded payment from CFC1X to FDE1Y and not otherwise 
imposed tax on CFC1X with respect to income of FDE1Y, the foreign tax 
imposed by Country X would relate only to the CFC1X income group, and 
no portion of it would be allocated and apportioned to the FDE1Y income 
group because the FDE1Y income would not be included in the Country X 
tax base. However, because gross income subject to tax in Country X 
corresponds to gross income that for federal income tax purposes is 
attributable to both the FDE1Y income group and the CFC1X income group, 
the [euro]50x of foreign income tax imposed by Country X is allocated 
to both the FDE1Y income group and the CFC1X income group and must be 
apportioned between the two income groups under Sec.  1.861-20(e). 
Because Country X does not provide specific rules for the allocation or 
apportionment of the [euro]500x of deductible expenses, Sec.  1.861-
20(e) applies the principles of the section 861 regulations to 
determine the foreign law net income subject to Country X tax for 
purposes of apportioning the [euro]50x of Country X tax between the 
income groups. CFC1X has [euro]1,000x of gross income and [euro]500x of 
deductible expenses under the tax laws of Country X, resulting in 
[euro]500x of net foreign law income. Of the [euro]1,000x of foreign 
law gross income, [euro]325x corresponds to the gross income in the 
FDE1Y income group, and [euro]675x corresponds to the gross income in 
the CFC1X income group. Applying federal income tax principles to 
allocate and apportion the foreign law deductions to foreign law gross 
income, [euro]220x of the [euro]500x foreign law deductions is 
allocated and apportioned to the FDE1Y income group and [euro]280x is 
allocated and apportioned to the CFC1X income group. Of the total 
[euro]500x of net foreign law income, [euro]105x ([euro]325x Country X 
gross income corresponding to the FDE1Y income group, less [euro]220x 
allocable Country X expenses) corresponds to the FDE1Y income group and 
[euro]395x ([euro]675x Country X gross income corresponding to the 
CFC1X income group, less [euro]280x allocable Country X expenses) 
corresponds to the CFC1X income group. Therefore, [euro]10.5x 
([euro]50x x [euro]105x/[euro]500x) of Country X tax is allocated and 
apportioned to the FDE1Y income group, and [euro]39.5x ([euro]50x x 
[euro]395x/[euro]500x) is allocated and apportioned to the CFC1X income 
group. In total, [euro]30.5x of foreign income tax ([euro]10.5x of 
Country X tax and [euro]20x of Country Y tax) is allocated and 
apportioned to the FDE1Y income group (the ``FDE1Y group tax'') and 
[euro]39.5x of foreign income tax (all of which is Country X tax) is 
allocated and apportioned to the CFC1X income group (the ``CFC1X group 
tax'').
    (iv) Tentative net items. Under paragraphs (d)(1)(iv)(A) and (B) of 
this section, the tentative net item in the FDE1Y income group (the 
``FDE1Y tentative net item'') is [euro]94.5x (the general gross item of 
[euro]325x, less the allocated and apportioned deductions of 
[euro]230.5x (the sum of deductions (other than for foreign income tax) 
of [euro]200x and the FDE1Y group taxes of [euro]30.5x)). The tentative 
net item in the CFC1X income group (the ``CFC1X tentative net item'') 
is [euro]355.5x (the general gross item of [euro]675x, less the 
allocated and apportioned deductions of [euro]319.5x (the sum of 
deductions (other than for foreign income tax) of [euro]280x and the 
CFC1X group tax of [euro]39.5x)).
    (v) Foreign income taxes paid or accrued with respect to a 
tentative net item. Under paragraph (d)(5) of this section, the foreign 
income taxes paid or accrued with respect to a tentative net item is 
the U.S. dollar amount of the current year taxes that are allocated and 
apportioned to the item of gross income under the rules of paragraph 
(d)(1)(iv) of this section. Therefore, the foreign income taxes paid or 
accrued with respect to the FDE1Y tentative net item is $30.5x, the 
U.S. dollar amount of the FDE1Y group tax. The foreign income tax paid 
or accrued with respect to the CFC1X tentative net item is $39.5x, the 
U.S. dollar amount of the CFC1X group tax.
    (vi) Effective foreign tax rate. The effective foreign tax rate is 
determined under paragraph (d)(4) of this section by dividing the U.S. 
dollar amount of foreign income taxes with respect to each respective 
tentative net item by the U.S. dollar amount of the tentative net item 
increased by the U.S. dollar amount of the relevant foreign income 
taxes. Therefore, the effective foreign tax rate with respect to the 
FDE1Y tentative net item is 24.4%, calculated by dividing $30.5x (the 
U.S. dollar amount of the foreign income taxes paid or accrued with 
respect to the FDE1Y tentative net item under paragraph (d)(5)) by 
$125x (the sum of $94.5x, the U.S. dollar amount of the FDE1Y tentative 
net item, and $30.5x, the U.S. dollar amount of the foreign income 
taxes paid or accrued with respect to the FDE1Y tentative net item). 
The effective foreign tax rate with respect to the CFC1X tentative net 
item is 10%, calculated by dividing $39.5x (the U.S. dollar amount of 
the CFC1X group tax) by $395x (the sum of $355.5x, the U.S. dollar 
amount of the CFC1X tentative net item and $39.5x, the U.S. dollar 
amount of the foreign income tax paid or accrued with respect to the 
CFC1X tentative net item).
    (vii) Qualification for the high-tax exception. The FDE1Y tentative 
net item is subject to an effective foreign tax rate (24.4%) that is 
greater than 18.9% (90% of the maximum rate of tax specified in section 
11). Therefore, the requirement of paragraph (d)(1)(i)(B) of this 
section is satisfied, and the FDE1Y general gross item qualifies for 
the high-tax exception of section 954(b)(4) and, under paragraphs 
(a)(2) and (a)(6) of this section, is excluded from the gross foreign 
base company income and the gross insurance income, respectively, of 
CFC1X; in addition, the FDE1Y general gross item is excluded from gross 
tested income under section 951A(c)(2)(A)(i)(III) and Sec.  1.951A-
2(c)(1)(iii). The CFC1X tentative net item is subject to an effective 
foreign tax rate (10%) that is not greater than 18.9%. Therefore, the 
CFC1X general gross item does not satisfy the requirement of paragraph 
(d)(1)(i)(B) of this section, does not qualify for the high-tax 
exception of section 954(b)(4) and, under paragraphs (a)(2) and (a)(6) 
of this section, is not excluded from the gross foreign base company 
income and gross insurance income of CFC1X; in addition, the CFC1X 
general gross item is not excluded from gross tested income under 
section 951A(c)(2)(A)(i)(III) and Sec.  1.951A-2(c)(1)(iii).
    (C) Example 3: Application of tested unit rules--(1) Facts--(i) 
Ownership. USP owns all of the stock of CFC1X. CFC1X directly owns all 
of the interests of FDEX and FDE1Y. In addition, CFC1X directly carries 
on activities in Country Y that constitute a branch (as described in 
Sec.  1.267A-5(a)(2)) and that give rise to a taxable presence under 
Country Y tax law and Country X tax law (such branch, ``FBY'').
    (ii) Items reflected on applicable financial statement. For the CFC 
inclusion year, CFC1X has a [euro]20x item of gross income (Item A), 
which is properly reflected on the applicable financial statement of 
FBY, and a [euro]30x item of gross income (Item B), which is properly 
reflected on the applicable financial statement of FDEX.
    (2) Analysis--(i) Identifying the tested units of CFC1X. Without 
regard to the combination rule of paragraph (d)(2)(iii) of this 
section, CFC1X, CFC1X's interest in FDEX, CFC1X's interest in FDE1Y,

[[Page 44673]]

and FBY would each be a tested unit of CFC1X. See paragraph (d)(2)(i) 
of this section. Pursuant to the combination rule, however, the FDE1Y 
tested unit is combined with the FBY tested unit and treated as a 
single tested unit because FDE1Y is a tax resident of Country Y, the 
same country in which FBY is located (the ``Country Y tested unit''). 
See paragraph (d)(2)(iii)(A)(1) of this section. The CFC1X tested unit 
(without regard to any items attributable to the FDEX, FDE1Y, or FBY 
tested units) is also combined with the FDEX tested unit and treated as 
a single tested unit because CFC1X and FDEX are both tax residents of 
County X (the ``Country X tested unit''). See paragraph 
(d)(2)(iii)(A)(1) of this section.
    (ii) Computing the items of CFC1X. Under paragraph (d)(1)(ii) of 
this section, an item of gross income is determined with respect to 
each of the Country Y tested unit and the Country X tested unit. To 
determine the item of gross income of each tested unit, the gross 
income that is attributable to the tested unit is determined under 
paragraph (d)(1)(iii) of this section. Under paragraph (d)(1)(iii)(A) 
of this section, only Item A is attributable to the Country Y tested 
unit, and only Item B is attributable to the Country X tested unit. 
Item A is not attributable to the Country X tested unit because it is 
not reflected on the applicable financial statement of the CFC1X tested 
unit or the FDEX tested unit, and an item of gross income is only 
attributable to one tested unit. See paragraph (d)(1)(iii)(A) of this 
section.
    (3) Alternative facts--branch does not give rise to a taxable 
presence in country where located--(i) Facts. The facts are the same as 
in paragraph (d)(9)(iii)(C)(1) of this section (the original facts in 
this Example 3), except that FBY does not give rise to a taxable 
presence under Country Y tax law; moreover, Country X tax law does not 
provide an exclusion, exemption, or other similar relief with respect 
to income attributable to FBY.
    (ii) Analysis. FBY is not a tested unit but is a transparent 
interest. See paragraphs (d)(2)(i)(C) and (d)(8)(ix) of this section. 
CFC1X has a tested unit in Country X that includes the CFC1X tested 
unit (without regard to any items related to the interest in FDEX or 
FDE1Y, but that includes FBY since it is a transparent interest and not 
a tested unit) and the interest in FDEX. See paragraph (d)(2)(iii) of 
this section. CFC1X has another tested unit in Country Y, the interest 
in FDE1Y.
    (4) Alternative facts--branch is a tested unit but is not 
combined--(i) Facts. The facts are the same as in paragraph 
(d)(9)(iii)(C)(1) of this section (the original facts in this Example 
3), except that FBY does not give rise to a taxable presence under 
Country Y tax law but Country X tax law provides an exclusion, 
exemption, or other similar relief (such as a preferential rate) with 
respect to income attributable to FBY.
    (ii) Analysis. FBY is a tested unit. See paragraph (d)(2)(i)(C) of 
this section. CFC1X has two tested units in Country Y, the interest in 
FDE1Y and FBY. The interest in FDE1Y and FBY tested units are not 
combined because FBY does not give rise to a taxable presence under the 
tax law of Country Y. See paragraph (d)(2)(iii)(B) of this section. 
CFC1X also has a tested unit in Country X that includes the activities 
of CFC1X (without regard to any items related to the interest in FDEX, 
the interest in FDE1Y, or FBY) and the interest in FDEX.
    (5) Alternative facts--split ownership of tested unit--(i) Facts. 
The facts are the same as in paragraph (d)(9)(iii)(C)(1) of this 
section (the original facts in this Example 3), except that USP also 
owns CFC2X, CFC1X does not own FDE1Y, and CFC1X and CFC2X own 60% and 
40%, respectively, of the interests of FPSY.
    (ii) Analysis for CFC1X. Under paragraph (d)(2)(iii)(A)(1) of this 
section, FBY and CFC1X's 60% interest in FPSY are combined and treated 
as a single tested unit of CFC1X (``CFC1X's Country Y tested unit''), 
and CFC1X's interest in FDEX and its other activities are combined and 
treated as a single tested unit of CFC1X (``CFC1X's Country X tested 
unit''). CFC1X's Country Y tested unit is attributed any item of CFC1X 
that is derived through its interest in FPSY to the extent the item is 
properly reflected on the applicable financial statement of FPSY. See 
paragraph (d)(1)(iii)(A) of this section.
    (iii) Analysis for CFC2X. Under paragraphs (d)(2)(i)(A) and 
(d)(2)(i)(B)(1) of this section, CFC2X and CFC2X's 40% interest in FPSY 
are tested units of CFC2X. CFC2X's interest in FPSY is attributed any 
item of CFC2X that is derived through FPSY to the extent that it is 
properly reflected on the applicable financial statement of FPSY. See 
paragraph (d)(1)(iii)(A) of this section.
    (iv) Analysis for not combining CFC1X and CFC2X tested units. None 
of the tested units of CFC1X are combined with the tested units of 
CFC2X under paragraph (d)(2)(iii)(A)(1) of this section because they 
are tested units of different controlled foreign corporations, and the 
combination rule only combines tested units of the same controlled 
foreign corporation.
    (6) Alternative facts--split ownership of transparent interest--(i) 
Facts. The facts are the same as in paragraph (d)(9)(iii)(C)(1) of this 
section (the original facts in this Example 3), except that USP also 
owns CFC2X, CFC1X does not own FDE1Y, and CFC1X and CFC2X own 60% and 
40%, respectively, of the interests in FPSY, but FPSY is not a tax 
resident of any foreign country and is fiscally transparent for Country 
X tax law purposes.
    (ii) Analysis for CFC1X. CFC1X's interest in FPSY is not a tested 
unit but is a transparent interest. See paragraphs (d)(2)(i)(B) and 
(d)(8)(ix) of this section. Under paragraph (d)(3)(iii) of this 
section, any item of CFC1X that is derived through its interest in FPSY 
and is properly reflected on the applicable financial statement of FPSY 
is treated as properly reflected on the applicable financial statement 
of CFC1X.
    (iii) Analysis for CFC2X. CFC2X's interest in FPSY is not a tested 
unit but is a transparent interest. See paragraphs (d)(2)(i)(B) and 
(d)(8)(ix) of this section. Under paragraph (d)(3)(iii) of this 
section, any item of CFC2X that is derived through its interest in FPSY 
and is properly reflected on the applicable financial statement of FPSY 
is treated as properly reflected on the applicable financial statement 
of CFC2X.
    (D) Example 4: Application of de minimis combination rule--(1) 
Facts--(i) Ownership. USP owns all of the stock of CFC1X, and CFC1X 
directly owns all of the interests of FDEW, FDEX, FDE1Y, FDE2Y, and 
FDEZ. FDEW and FDEZ are disregarded entities that are tax residents of 
Country W and Country Z, respectively.
    (ii) Gross income attributable to tested units. Without regard to 
the combination rule of paragraph (d)(2)(iii) of this section, CFC1X, 
and CFC1X's interests in each of FDEW, FDEX, FDE1Y, FDE2Y, and FDEZ, 
would each be a tested unit of CFC1X. For the CFC inclusion year, and 
without regard to the combination rule of paragraph (d)(2)(iii) of this 
section, the U.S. dollar amount of the gross income attributable to the 
tested units of CFC1X (determined under paragraph (d)(1)(iii) of this 
section, and without regard to the combination rule in paragraph 
(d)(2)(iii) of this section) is as follows:

               Table 1 to Paragraph (d)(9)(iii)(D)(1)(ii)
------------------------------------------------------------------------
                       Tested unit                         Gross income
------------------------------------------------------------------------
CFC1X...................................................     $19,500,000
FDEW....................................................         100,000
FDEX....................................................         100,000
FDE1Y...................................................         175,000

[[Page 44674]]

 
FDE2Y...................................................          50,000
FDEZ....................................................          75,000
                                                         ---------------
    Total...............................................      20,000,000
------------------------------------------------------------------------

    (2) Analysis--(i) Same country combination rule. Pursuant to the 
same country combination rule in paragraph (d)(2)(iii)(A)(1) of this 
section, which applies before the de minimis combination rule in 
paragraph (d)(2)(iii)(A)(2) this section, the CFC1X tested unit 
(without regard to any items attributed to other tested units) is 
combined with CFC1X's interest in FDEX and treated as a single tested 
unit because CFC1X and FDEX are both tax residents of Country X (the 
``Country X tested unit''). CFC1X's interests in FDE1Y and FDE2Y are 
also combined under the same country combination rule and treated as a 
single tested unit because FDE1Y and FDE2Y are both tax residents of 
Country Y (the ``Country Y tested unit'').
    (ii) De minimis combination rule. Pursuant to the de minimis 
combination rule in paragraph (d)(2)(iii)(A)(2) of this section, 
CFC1X's interests in FDEW and FDEZ are combined and treated as a single 
tested unit because the gross income attributable to each of these 
tested units ($100,000 attributable to CFC1X's interest in FDEW, and 
$75,000 attributable to CFC1X's interest in FDEZ) is less than 
$200,000, which is the lesser of 1% of CFCX's total gross income 
($200,000) or $250,000. The Country X tested unit and the Country Y 
tested unit are not combined under the de minimis combination rule 
because the gross income attributable to these tested units 
($19,600,000 attributable to the Country X tested unit, and $225,000 
attributable to the Country Y tested unit) is not less than $200,000.
    (E) Example 5: CFC group--Controlled foreign corporations with 
different taxable years--(1) Facts. USP owns all of the stock of CFC1X 
and CFC2X. CFC2X has a taxable year ending November 30. On December 15, 
Year 1, USP sells all the stock of CFC2X to an unrelated party for 
cash.
    (2) Analysis. The determination of whether CFC1X and CFC2X are in a 
CFC group is made as of the close of their CFC inclusion years that end 
with or within the taxable year ending December 31, Year 1, the taxable 
year of USP, the controlling domestic shareholder under paragraph 
(d)(8)(iii) of this section. See paragraph (d)(6)(v)(B)(2) of this 
section. Under paragraph (d)(6)(v)(B)(1) of this section, USP directly 
owns more than 50% of the stock of CFC1X as of December 31, Year 1, the 
end of CFC1X's CFC inclusion year. USP also directly owns more than 50% 
of the stock of CFC2X as of November 30, Year 1, the end of CFC2X's CFC 
inclusion year. Therefore, CFC1X and CFC2X are members of a CFC group 
and USP must consistently make high-tax elections, or revocations, 
under paragraph (d)(6) of this section with respect to CFC1X's taxable 
year ending December 31, Year 1, and CFC2X's taxable year ending 
November 30, Year 1. This is the case notwithstanding that USP does not 
directly own more than 50% of the stock of CFC2X as of December 31, 
Year 1, the end of CFC1X's CFC inclusion year. See paragraph 
(d)(6)(v)(B)(2) of this section.
    (F) Example 6: Application of anti-abuse rule to applicable 
instrument--(1) Facts--(i) Ownership. USP owns all the stock of CFC1X. 
CFC1X owns all the stock of CFCY, a controlled foreign corporation 
organized in Country Y. Under paragraph (d)(2)(i)(A) of this section, 
CFCY is a tested unit.
    (ii) Applicable instrument. With a significant purpose of causing 
an item of gross income of CFCY to qualify for the high-tax exception 
described in section 954(b)(4) and paragraph (d)(1) of this section, 
CFCY issues an instrument to CFC1X. The instrument is treated as 
indebtedness that gives rise to deductible interest for federal income 
tax purposes and under the tax law of Country X, but payments or 
accruals with respect to the instrument are not deductible under the 
tax law of Country Y. During Year 1, CFCY accrues and pays [euro]20x 
with respect to the instrument held by CFC1X. For federal income tax 
purposes, the [euro]20x accrual is deductible interest expense. For 
Country Y tax purposes, neither the payment nor accrual is deductible. 
For Country X tax purposes, the [euro]20x payment is interest and 
included in income. CFCY has a general gross item that after taking 
into account the [euro]20x interest deduction on the instrument, but 
before taking into account the anti-abuse rule under paragraph (d)(7) 
of this section, would qualify for the high-tax exception in section 
954(b)(4) and paragraph (d)(1) of this section; but for the [euro]20x 
interest deduction (for federal income tax purposes), the general gross 
item of CFCY would not qualify for the high-tax exception.
    (2) Analysis. Under paragraph (d)(8)(i)(A) of this section, the 
instrument CFCY issues to CFC1X is an applicable instrument because it 
gives rise to deductions for federal income tax purposes but not, in 
whole or in part, under the tax law of Country Y. In addition, CFCY 
issues the instrument with a significant purpose of avoiding the 
purposes of section 951, 951A, or 954(b)(4) or paragraph (d)(1) of this 
section. As a result, appropriate adjustments are made pursuant to the 
anti-abuse rule in paragraph (d)(7) of this section. The adjustments in 
this case would be an increase in the amount of the tentative net item 
described in paragraph (d)(1)(iv) of this section by [euro]20x, the 
amount of the payment on the applicable instrument that is deductible 
for federal income tax purposes, but not for Country Y tax purposes, 
such that CFCY's item of gross income does not qualify for the high-tax 
exception described in section 954(b)(4) and paragraph (d)(1) of this 
section.
* * * * *
    (h) * * *
    (3) Paragraphs (a)(2) through (a)(7), (b)(1)(ii), 
(c)(1)(iii)(A)(3), (c)(1)(iv), and (d) of this section. Paragraphs 
(c)(1)(iii)(A)(3) and (c)(1)(iv) of this section apply to taxable years 
of a controlled foreign corporation beginning on or after July 23, 
2020, and to taxable years of United States shareholders in which or 
with which such taxable years of foreign corporations end. Paragraphs 
(a)(2) through (7), (b)(1)(ii), and (d) of this section apply to 
taxable years of controlled foreign corporations beginning on or after 
[the date that final regulations are filed for public inspection], and 
to taxable years of United States shareholders in which or with which 
such taxable years of foreign corporations end. For the application of 
paragraphs (a)(2) through (7), (b)(1)(ii), and (d) (excluding 
paragraphs (d)(3)(i) and (d)(3)(ii)) of this section to taxable years 
of controlled foreign corporations beginning before [the date that 
final regulations are filed for public inspection], and to taxable 
years of United States shareholders in which or with which such taxable 
years of foreign corporations end, see Sec.  1.954-1, as contained in 
26 CFR part 1 revised as of April 1, 2020. For the application of 
paragraphs (d)(3)(i) and (ii) of this section to taxable years of 
controlled foreign corporations beginning on or after July 23, 2020, 
and before [the date final regulations are filed on public inspection], 
and to taxable years of United States shareholders in which or with 
which such taxable years of foreign corporations end, see Sec.  1.954-
1(d)(3)(i) and (ii), as in effect on September 21, 2020.

[[Page 44675]]

Sec.  1.954-3   [Amended]

0
Par. 6. Section 1.954-3 is amended by removing the second sentence in 
paragraph (b)(3).


Sec. Sec.  1.954-6, 1.954-7, and 1.954-8  [Removed]

0
Par. 7. Sections 1.954-6 through 1.954-8 are removed.
0
Par. 8. Section 1.6038-2, as amended July 15, 2020, at 85 FR43042, 
effective September 14, 2020, is further amended by:
0
1. Adding reserved paragraphs (f)(16) through (18);
0
2. Adding paragraph (f)(19);
0
3. Adding reserved paragraph (m)(5); and
0
4. Adding paragraph (m)(6).
    The additions read as follows:


Sec.  1.6038-2   Information returns required of United States persons 
with respect to annual accounting periods of certain foreign 
corporations.

* * * * *
    (f) * * *
    (16)-(18) [Reserved]
    (19) High-tax election documentation requirement. If for the annual 
accounting period of a corporation a United States shareholder makes a 
high-tax election under section 954(b)(4) and Sec.  1.954-1(d)(6), then 
Form 5471 (or successor form) must contain such information related to 
the high-tax election in the form and manner and to the extent 
prescribed by the form, instructions to the form, publication, or other 
guidance published in the Internal Revenue Bulletin.
* * * * *
    (m) * * *
    (5) [Reserved]
    (6) Special rule for paragraph (f)(19) of this section. Paragraph 
(f)(19) of this section applies to taxable years of controlled foreign 
corporations beginning on or after [the date that final regulations are 
filed for public inspection], and to taxable years of United States 
shareholders in which or with which such taxable years of foreign 
corporations end.

Sunita Lough,
Deputy Commissioner for Services and Enforcement.
[FR Doc. 2020-15349 Filed 7-20-20; 4:15 pm]
BILLING CODE 4830-01-P