International Business Taxation

All countries of the world assess taxes on businesses, but there are differences in tax systems, tax rates, business incentive provisions, and compliance requirements. Furthermore, many countries assess tax on its citizens and domestic corporations, regardless of where they earn the income.

Generally, other countries assess the same types of taxes as the United States (US), such as taxes on income or profits, payroll taxes, and consumption taxes, such as sales, excise, and value-added taxes. Value-added taxes are much more prevalent in Europe and account for much of the governments' tax revenue. However, the methods of calculating taxable income and the tax rates will differ from country to country. Different countries also allow different methods of depreciation, with the straight line method being more prevalent than the declining balance method.

With regard to the US, international business transactions can be classified into 2 categories. Outbound transactions are transactions in which US citizens or residents, and domestic corporations invest or do business abroad. Inbound transactions are transactions that nonresident aliens and foreign corporations invest or do business in the US. Both types of transactions are taxable by the US. Without inbound taxation, domestic businesses can be at a disadvantage to foreign corporations operating within the United States if their foreign taxes are lower than US taxes.

Tax Treaties

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The US government has the authority to levy tax on any income earned by US citizens, residents, and domestic corporations, regardless of where they live or do business and on foreigners doing business within the US. This can lead to double taxation issues, where the taxpayer not only has to pay US taxes but also foreign taxes.

The taxation of international transactions depends on both the law of the relevant countries and on any current treaties between the respective countries. Cross-border transactions involving the US are based on both the Internal Revenue Code and tax treaties, which are bilateral agreements between countries to lessen the tax burden for those people who conduct business across borders. Tax treaty provisions generally supersede US and foreign tax law.

Although both countries have the right to tax either its citizens or foreigners operating within the country, tax treaties generally give primary taxing rights to one country while the other country is required to provide tax credits, lower tax rates, or special exclusions from taxation to lessen the otherwise burdensome double taxation. Of course, double taxation is not evil per se, but it can lead to excessive taxation, since, as a practical matter, the tax code of any country does not usually consider the tax burden that other countries may impose on the citizens operating in those other countries. The tax code of most countries primarily deal with taxpayers who live and work domestically. The country with the primary taxing power depends on the taxpayer's residence or whether there is a permanent business establishment in the country.

The US has tax treaties with more than 50 countries. US treaties are generally based on the United States Model Income Tax Convention, written in 1996 and last modified in 2006. Most treaties involving the US are a modification of this model treaty, with differences among the treaties depending on the specific country.

One basic tenet of the model treaty is that the foreign country will not tax a US business if it does not have a permanent establishment in the foreign country, meaning a branch or other place of business located in the foreign country — what is generally referred to as a physical nexus. However, sites for storage, delivery, display, or purchase of merchandise; for advertisements; or for the collection of information or scientific research do not qualify as a physical nexus.

Foreign Tax Credit for Corporations

The US offers a foreign tax credit (FTC) for corporations that can be applied to income that is taxable by both the US and the foreign country. (There is also a foreign tax credit for individuals and other business entities.) Corporations must file Form 1118, Foreign Tax Credit—Corporations to claim the FTC. The FTC can be applied to foreign income and trade taxes, but not to foreign property taxes, value-added taxes, sales taxes or any other levy that is not based on taxable income. However, these other expenses are deductible as business expenses.

Generally, the maximum FTC equals the tax on income from foreign sources by the US for any given tax year.

Maximum FTC Allowable = Foreign Source Taxable Income/Worldwide Taxable Income × US Tax on Worldwide Taxable Income before Credits

Any unused foreign tax credits can be carried back 2 years or forward 5 years, but the FTC limit applies to each of those years.

Generally, the FTC must be applied to taxes paid on categories of income called baskets, which includes:

The purpose for dividing income into baskets is to prevent averaging of the income among high-tax and low-tax countries involving different types of income. A separate Form 1118 must be filed for each type of income.

Sourcing of Income and Deductions

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The amount of FTC that can be claimed depends on the amount of foreign income. How foreign income is taxed depends on the activities, the type of income, and the involved tax jurisdictions. IRC §§861-865 list detailed rules for sourcing income and deductions according to country.

Although regulations are complex, the following rules apply in most cases:

When depreciable personal property is sold, then a portion of the gain is considered a recapture of the depreciation and must be sourced to the location where the income was reduced by the depreciation deduction. Any remaining gains are sourced to the location in which the title transfers.

Taxpayers generally consider how to arrange their international affairs so as to prevent double taxation and to use the complex laws to reduce or avoid taxes, especially by manipulating transfer pricing. However, IRC §482 grants the IRS broad powers to reallocate both income and expenses to better reflect income.

Taxation of Legal Forms of Foreign Operations

Taxation of foreign income depends on the legal form in which the company conducts its business in the foreign country. There are several ways that a company can market its products or services without having a foreign presence. It can hire foreign sales representatives or it can license its patents or trademarks to foreign companies. How that income is taxed depends on the tax treaty, if one exists, between the US and the foreign country.

Many companies, however, desire or require a foreign presence in the country. A corporation can establish a branch in the foreign country, which will be subject not only to the foreign taxes of the country but also to US tax. However, the US tax can be offset by the FTC. A corporation can also establish a partnership with other businesses in the foreign country, in which case, the corporation's partnership interest will be taxed in the same way that partners are taxed in the US. Taxes on the partnership income can also be offset by the FTC.

A corporation can also form a controlled subsidiary located in the foreign country that is either incorporated in the US or in the foreign country. Controlled subsidiaries have both business and tax advantages. The controlled subsidiary is an independent business entity with the controlling corporation as the major, and often times, the only shareholder.

Controlled subsidiaries are often formed because the foreign ownership of businesses is restricted in many countries, and where it is not, there is often a branch profits tax assessed on foreign corporations that have a branch within the country. If a controlled foreign subsidiary is incorporated under US law, then it is taxed under general corporate rules. Any dividends paid by the subsidiary to the parent qualify for the 100% dividends-received deduction. The parent corporation files a consolidated tax return, including the income and deductions of the foreign subsidiary. Any tax due on subsidiary profits can be offset with the FTC.

The main tax advantage of a controlled foreign subsidiary is that its income is not includable in the parent's consolidated tax return, and, thus, is not taxed by the US when the income is earned, but only when the income is repatriated to the US in the form of dividends. However, the foreign subsidiary does have to pay taxes to the country in which it is located and dividend payments to the US parent may also be subject to foreign tax. Hence, many corporations select low tax jurisdictions, like Ireland, with its 12.5% corporate tax rate, in which to locate a controlled foreign subsidiary.

Dividends are not eligible for the dividends-received deduction, so they are taxed when they are paid to the parent corporation. Although the parent corporation must recognize the dividend income equal to the gross earnings before taxes, the US allows a deemed paid foreign tax credit for the applicable amount of tax paid.

Taxable Dividend Income =

Conclusion

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By arranging their international affairs judiciously, corporations can lower their tax rate substantially. For instance, it was recently reported that Apple paid only 1.9% in corporate taxes on income sourced outside of the US — $713 million in taxes on $36.8 billion of foreign pretax income. If that income had been sourced in the US, then Apple would have had to pay a 35% rate, equal to $12.88 billion, a difference of more than $12 billion! Many large international corporations, such as Facebook, Google, and Starbucks, also pay lower corporate taxes on their foreign income. However, even foreign subsidiaries in European tax havens still pay considerable sums for employment and value-added taxes.