A Deep Dive into IRS Form IRS Form 5471 Schedule I-1 Used to Determine GILTI Income Inclusions

Form 5471 (Information Return of U.S. Persons With Respect to Certain Foreign Corporations) is used by certain U.S. persons who are officers, directors, or shareholders in respect of certain foreign entities that are classified as corporations for U.S. tax purposes. Form 5471 and its schedules are used to satisfy the reporting requirements of Internal Revenue Code Sections 6038 and 6046.

Substantively, Form 5471 backstops various international sections of the Internal Revenue Code, including Sections 901 and 904 (foreign tax credits), Section 951(a) (subpart F income), Section 951A (global intangible low-taxed income or “GILTI”), Section 965 (one-time transition tax on a U.S. shareholder’s deferred foreign income), and Section 482 (transfer pricing). Other forms associated with Form 5471 include Form 926 (Return by a U.S. Transferor of Property to a Foreign Corporation), Form 5713 (International Boycott Report), Form 8621 (Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund), and Forms 1116 and 1118 (Foreign Tax Credit).

Form 5471 includes 12 schedules. This article discusses the Schedule I-1 of Form 5471. This schedule is used to report information determined at the foreign corporation level with respect to amounts used in the determination of income inclusions by U.S. shareholders under Section 951A.

Key Terms for Form 5471

Form 5471 provides for five general categories of filers, numbered 1 through 5. Two of these general categories are subdivided into three subtypes each, with each subtype being a separate filer category as well. The filer category that a taxpayer falls under dictates the schedule or schedules that the taxpayer must include with the form. In order to understand how these filer categories work, it is helpful to review some basic terms.

U.S. Person

Only U.S. persons who own stock in a foreign corporation can have a Form 5471 filing obligation. A U.S. person is generally a citizen or resident of the United States, a domestic partnership, a domestic corporation, or a domestic trust or estate, each as defined in Internal Revenue Code Section 7701(a)(30)(A) through (E). A tax-exempt U.S. entity may have a Form 5471 filing obligation. In addition, an individual who relies on the residency provision of an income tax treaty to reduce his or her U.S. income tax liability (and files Form 8833) remains a U.S. person for purposes of Form 5471. See Treas. Reg. Section 301.7701(b)-7(a)(3). There are some slight modifications to the definition of a U.S. person which will be discussed in more detail below. All of the Form 5471 filer categories apply to U.S. persons.

U.S. Shareholder

Internal Revenue Code Section 951(b) defines a “U.S. shareholder” as a U.S. citizen, resident alien, corporation, partnership, trust, or estate that owns 10 percent or more of the total combined voting power of all classes of voting stock of a foreign corporation, or 10 percent or more of the total value of all the outstanding stock of a foreign corporation. All forms of stock ownership, — i.e., direct, indirect (ownership through intervening entities), and constructive (attribution of ownership from one related party to another) — are considered in applying the 10 percent test.

Controlled Foreign Corporation (“CFC”)

A foreign corporation is a CFC if, on any day during its taxable year, all of its U.S. shareholders, taken together as a group, own more than 50 percent of the combined voting power of all classes of the foreign corporation’s voting stock, or more than 50 percent of the total value of all of the foreign corporation’s outstanding stock. See IRC Section 957(a). Only U.S. persons who constitute U.S. shareholders are considered in applying the 50 percent test. Just as in the case of the 10 percent test for determining whether a U.S. person is a U.S. shareholder, direct, indirect, and constructive ownership of stock are all considered in applying the 50 percent test for CFCs. The term “foreign,” when applied to a corporation, means a corporation that is not domestic — i.e., a corporation that is not incorporated in a U.S. state or the District of Columbia. See IRC Section 7701(a)(5).

Treasury Regulations 301.7701-2(b)(8) provides a list of foreign entities that are conclusively treated as “per se” corporations for U.S. tax purposes. An individual preparing a Form 5471 should be aware that abbreviations in an entity name such as “Ltd.” and “S.A.” do not always stand for “Limited” or “Sociedad Anonima” (or “Societe Anonyme”). The preparer should confirm what the unabbreviated terms are, preferably from a charter or other official document from the relevant jurisdiction. If a foreign entity is not in the list of per se corporations, Treasury Regulations Section 301.7701-3(b)(2) provides that, unless a contrary election is made, the foreign entity will be treated as (1) an association taxable as a corporation if all its members have limited liability, (2) a partnership it it has two or more members (at least one of which does not have limited liability), or (3) a disregarded entity if it has a single owner who does not have limited liability.

Section 965 Specified Foreign Corporation (“SFC”)

An SFC is a foreign corporation that either is a CFC or has at least one U.S. shareholder that is a domestic corporation. See IRC Section 965(e)(1). The term SFC includes not only CFCs, but also entities commonly referred to as “10/50 corporations.” These foreign corporations have at least one U.S. shareholder, but are not CFCs because U.S. shareholders do not collectively own more than 50 percent of the corporation’s stock either by vote or value.

Stock Ownership

For purposes of Form 5471, a U.S. person can own stock in a corporation in three possible ways. First, the person can own the stock “directly.” For example, owning stock in a brokerage account constitutes direct ownership of the stock. Second, the U.S. person can own the stock “indirectly” through an intervening entity, such as a corporation, partnership, estate, or trust, in which the U.S. person owns an interest. In these cases, the stock owned by the intervening entity is typically considered to be owned proportionately by its shareholders, partners, or beneficiaries, as the case may be. For example, if a U.S. person directly owns 40 percent of the stock of a corporation and that corporation, in turn, directly owns 50 percent of the stock of a second corporation, then the U.S. person is considered to own indirectly 20 percent (i.e., 40% × 50%) of the stock of the second corporation. Indirect stock ownership can extend through several layers of intervening entities, where each intervening entity directly owns an interest in the one immediately below it. The third way that a U.S. person can own stock is by “constructively” owning the stock due to a relationship with another person. This relationship most commonly involves family members. For example, if a U.S. citizen mother directly owns 6 percent of a corporation’s stock and her U.S. citizen daughter directly owns 5 percent of the same corporation’s stock, then each of them is considered to own constructively the shares of the other. As a result, the mother and daughter are each considered to own 11 percent of the corporation’s stock. Another less common relationship involves sister entities. This form of constructive ownership (referred to as downward attribution) arises when an individual or entity parent directly or indirectly owns stock in a corporation and, at the same time, owns an interest in another entity. Under downward attribution, the corporation’s stock that the parent owns is attributed downward from the parent to the second entity. As a result, the second entity is considered to own constructively the same stock owned by the parent. Generally, the stock that is owned constructively by one person due to family or downward attribution cannot be further owned constructively by another.

All three kinds of stock ownership apply when determining which Form 5471 filer category or categories a taxpayer falls under, but there are variations among the categories. For example, in Categories 2 and 3, constructive family ownership includes attribution of stock from siblings, grandparents, and nonresident aliens, whereas the other three categories do not allow for these attributions. Categories 1, 4, and 5 define indirect ownership to mean only indirect ownership through foreign intervening entities, and include indirect ownership through intervening U.S. entities as constructive upward attribution. Categories 2 and 3 specifically provide for indirect ownership, but only through entities that are foreign corporations or partnerships, and refer to this type of non-direct ownership as both indirect and constructive ownership. Constructive ownership in the form of downward attribution does not exist in Categories 2 and 3, but exists in Categories 1, 4, and 5. Category 4’s version of downward attribution prohibits attribution of stock from a foreign entity to a U.S. person. Category 1 and 5’s version, however, contains no such prohibition due to the Tax Cuts and Jobs Act of 2017 (the “TCJA”). All these variations, as well as others not described above, will need to be taken into account when preparing a Form 5471.

Filer Categories

Form 5471, together with its applicable schedules, must be completed (to the extent required on the form) and filed by the taxpayer according to the taxpayer’s filer category. What follows is a description of each filer category.

Category 1 Filer

A Category 1 filer is a U.S. shareholder of a foreign corporation that is an SFC at any time during the corporation’s taxable year. However, to be classified as a Category 1 filer, the U.S. shareholder of the SFC must also own the SFC’s stock on the last day of the SFC’s taxable year.

The stock ownership rules applicable to Category 1 (including Categories 1a, 1b, and 1c) are contained in Internal Revenue Code Section 958, which incorporates and modifies the constructive stock ownership rules of Section 318(a). For Category 1 purposes, if a person does not directly own stock, the person can own stock as follows:

• Indirect stock ownership through an intervening entity. The intervening entity (i.e., a corporation, partnership, estate, or trust) can only be a foreign entity. The person, who is to become the indirect owner of stock through the intervening entity, is not required to hold a minimum ownership interest (i.e., stock, partnership interest, or beneficial interest) in the intervening foreign entity.
• Constructive stock ownership from another person.
  • Attribution from family members. A person can only be attributed stock owned by his or her parent, spouse, child, or grandchild. However, no attribution is permitted from a nonresident alien to a U.S. citizen or resident.
  • Upward attribution from entities. The attributing entity can be either a U.S. or foreign entity. However, if the attributing entity is a corporation, the person to whom the stock is to be attributed must own at least 10 percent (by value) of the attributing entity’s stock. Furthermore, if the stock to be attributed upward constitutes more than 50 percent of a corporation’s voting stock, then the stock is deemed to constitute 100% of the corporation’s voting stock when it gets proportionately allocated among the attributing entity’s owners.
  • Downward attribution from persons. The attributing person can be either an individual or entity. However, if the stock is to be attributed downward to a corporation, the attributing person must own at least 50 percent (by value) of that corporation’s stock.

Category 1a, 1b, and 1c Filers

Category 1 is subdivided into Categories 1a, 1b, and 1c. Category 1a is a catchall category and applies to Category 1 filers who do not otherwise fall under either Category 1b or 1c. Categories 1b and 1c were added to Form 5471 as the result of Revenue Procedure 2019-40, which the IRS issued in response to the repeal of provisions in Section 958(b) that previously disapplied the constructive downward attribution rules of Section 318(a)(3) to the extent that they attributed stock owned by a foreign person to a U.S. person.

Categories 1b and 1c specifically apply to those SFCs that are considered to be foreign-controlled for purposes of Form 5471. Such an SFC, referred to herein as a “Foreign-Controlled SFC,” is a foreign corporation that, although classified as an SFC, would not be so classified if the determination were made without applying Section 318(a)(3)’s downward attribution rules so as to consider a U.S. person as owning the stock owned by a foreign person.

A Category 1b filer is a U.S. shareholder who owns, directly or indirectly under Section 958(a) (but not constructively under Section 958(b)), the stock of a Foreign-Controlled SFC and is not related (within the meaning of Section 954(d)(3)) to that Foreign-Controlled SFC. Section 954(d)(3) defines two persons as being “related” to each other in terms of “control,” where one person controls or is controlled by the other, or is controlled by the same person or persons who control the other. Here, control over a corporation means directly or indirectly owning more than 50 percent of the corporation’s stock by either vote or value. A Category 1b filer is typically a shareholder who owns, directly or indirectly, stock in a foreign corporation but is not related to the foreign corporation because the common parent of both the shareholder and the foreign corporation does not control the foreign corporation.

A Category 1c filer is a U.S. shareholder who does not own, either directly or indirectly, the stock of a Foreign-Controlled SFC but is related (within the meaning of Section 954(d)(3)) to that Foreign-Controlled SFC. A Category 1c filer is typically a shareholder that owns the stock of a foreign corporation only because of constructive stock ownership under Section 318(a)(3) and the shareholder is related to the foreign corporation because each of them is under the control of a common parent.

A U.S. shareholder who does not own, either directly or indirectly, the stock of a Foreign-Controlled SFC and is not related (within the meaning of Section 954(d)(3)) to that Foreign-Controlled SFC, is neither a Category 1b nor 1c filer. Such U.S. shareholder is deemed not to fall under the Category 1a catchall and is exempt from the obligation to file Form 5471.

Category 2 Filer

A Category 2 filer is a U.S. person who is an officer or director of a foreign corporation in which there has been a substantial change in its U.S. ownership. A U.S. person can be a Category 2 filer even if the change relates to stock owned by another U.S. person and regardless of whether or not that other U.S. person is an officer or director of the foreign corporation. For Category 2 purposes, a U.S. person is defined as a U.S. citizen, resident alien, corporation, partnership, estate, or trust. However, Category 2 also expands the definition of a U.S. person to include a bona fide Puerto Rico resident, a bona fide possessions resident, and a nonresident alien as to whom a Section 6013(g) or (h) election is in effect (i.e., where a nonresident alien spouse has made an election to be taxed as a U.S. person). In regard to the definition of an officer or director, there is no clear answer as to what constitutes an officer or director for purposes of a Category 2 filer. Treasury Regulations Section 1.6046-1(d) provides that “persons who would qualify by the nature of their functions and ownership in such associations, etc., as officers, directors, or shareholders thereof will be treated as such for purposes of this section without regard to their designations under local law.”

For purposes of Category 2, a substantial change in U.S. ownership in a foreign corporation occurs when any U.S. person (not necessarily the U.S. citizen or resident who is the officer or director) either (1) acquires stock that causes that U.S. person to own a 10 percent block of stock in that foreign corporation (by vote or value) or (2) acquires an additional 10 percent block of stock in that corporation (by vote or value). More precisely, if any U.S. person acquires stock that, when added to any stock previously owned by that U.S. person, causes the U.S. person to own stock meeting the 10 percent stock ownership requirement, the U.S. officers and directors of that foreign corporation must report. A disposition of shares in a foreign corporation by a U.S. person, however, does not create filing obligations under Category 2 for U.S. officers and directors of that foreign corporation.

The stock ownership rules applicable to Category 2 are contained in Internal Revenue Code Section 6046(c) and Treasury Regulations Section 1.6046-1(i). For Category 2 purposes, if a person does not directly own stock, the person can own stock as follows:

• Constructive stock ownership from another person.
  • Attribution from family members. A person can only be attributed stock owned by his or her brother, sister, spouse, ancestors, and lineal descendants. Attribution from nonresident aliens is permitted.
  • Upward attribution from entities. The attributing entity can be either a foreign corporation or a foreign partnership. The person, who is to become the constructive/indirect owner of stock through the attributing foreign corporation or partnership, is not required to hold a minimum ownership interest (i.e., stock or partnership interest) in the attributing foreign corporation or partnership. By negative implication, there is no attribution of stock from U.S. entities, or from foreign estates or trusts. Nevertheless, stock owned by U.S. entities that are not treated as entities separate from their owners for U.S. income tax purposes (i.e., grantor trusts and disregarded entities) should be attributable to their owners.

Category 3 Filer

A U.S. person who owns stock in a foreign corporation is a Category 3 filer if any one of the following events occurs during the taxable year:

1. The U.S. person acquires stock in the corporation that, when added to any stock already owned by the person, causes the person to own at least 10 percent (by vote or value) of the corporation’s stock.
2. The U.S. person acquires stock that, without regard to any stock already owned by the person, constitutes at least 10 percent (by vote or value) of the corporation’s stock.
3. The U.S. person becomes a U.S. person while owning at least 10 percent (by vote or value) of the corporation’s stock.
4. The U.S. person disposes of sufficient stock in the corporation to reduce the person’s interest to less than 10 percent (by vote or value) of the corporation’s stock.
5. The U.S. person owns at least 10 percent (by vote or value) of the corporation’s stock when the corporation is reorganized.

For Category 3 purposes, a U.S. person is defined as a U.S. citizen, resident alien, corporation, partnership, estate, or trust. However, Category 3 also expands the definition of a U.S. person to include a bona fide Puerto Rico resident, a bona fide possessions resident, and a nonresident alien as to whom a Section 6013(g) or (h) election is in effect (i.e., where a nonresident alien spouse has made an election to be taxed as a U.S. person).

The stock ownership rules applicable to Category 3 are the same as the ones applicable to Category 2, as described above under “Filer Categories–Category 2 Filer.” These rules are contained in Internal Revenue Code Section 6046(c) and Treasury Regulations Section 1.6046-1(i).

Category 4 Filer

A U.S. person is a Category 4 filer with respect to a foreign corporation for a taxable year if the U.S. person controls the foreign corporation. For Category 4 purposes, a U.S. person is defined as a U.S. citizen, resident alien, corporation, partnership, estate, or trust. However, Category 4 also expands the definition of a U.S. person to include a bona fide Puerto Rico resident, a bona fide possessions resident, and a nonresident alien as to whom a Section 6013(g) or (h) election is in effect (i.e., where a nonresident alien spouse has made an election to be taxed as a U.S. person). See Treas. Reg. Section 1.6038-2(d).

A U.S. person is considered to “control” a foreign corporation for purposes of Category 4 if at any time during the person’s taxable year, such person owns more than 50 percent of the combined voting power of all classes of the foreign corporation’s voting stock, or more than 50 percent of the total value of all of the foreign corporation’s outstanding stock. See IRC Section 6038(e)(2). It is important to note that the concept of control here for Category 4 filers is distinct from the one in the definition of CFC, a term used for Category 1 and Category 5 filers. There, control over a foreign corporation exists when more than 50 percent (by vote or value) of the corporation’s stock is owned by one or more U.S. shareholders, each of whom individually owns at least 10 percent of the corporation’s stock. By contrast, a Category 4 filer is a single U.S. person who individually owns more than 50 percent (by vote or value) of the foreign corporation’s stock.

The stock ownership rules applicable to Category 4 are contained in Internal Revenue Code Section 6038(e)(2), which incorporates and modifies the constructive stock ownership rules of Section 318(a). For Category 4 purposes, if a person does not directly own stock, the person can own stock as follows:

• Constructive stock ownership from another person.
  • Attribution from family members. A person can only be attributed stock owned by his or her parent, spouse, child, or grandchild. Attribution from nonresident aliens is permitted.
  • Upward attribution from entities. The attributing entity can be either a U.S. or foreign entity. However, if the attributing entity is a corporation, the person to whom the stock is to be attributed must own at least 10 percent (by value) of the attributing entity’s stock. Furthermore, because Section 6038(e)(2) defines control for purposes of Category 5 as owning more than 50% (by vote or value) of a corporation’s stock, if a person controls a corporation that, in turn, owns more than 50% (by vote or value) of the stock of a second corporation, then such person will be treated as in control of the second corporation as well.
  • Downward attribution from persons. The attributing person can be either an individual or entity. However, if the stock is to be attributed downward to a corporation, the attributing person must own at least 50 percent (by value) of that corporation’s stock. Furthermore, no downward attribution is allowed if it results in a U.S. person constructively owning stock that is owned by a foreign person (as the attributing person).

Category 5 Filer

A Category 5 filer is a U.S. shareholder of a foreign corporation that is a CFC at any time during the corporation’s taxable year. However, to be classified as a Category 5 filer, the U.S. shareholder of the CFC must also own the CFC’s stock on the last day of the CFC’s taxable year.

The stock ownership rules applicable to Category 5 (including Categories 5a, 5b, and 5c) are the same as the ones applicable to Category 1 (including Categories 1a, 1b, and 1c), as described above under “Filer Categories–Category 1 Filer.” These rules are contained in Internal Revenue Code Section 958, which incorporates and modifies the constructive stock ownership rules of Section 318(a).

Category 5a, 5b, and 5c Filers

Category 5 is subdivided into Categories 5a, 5b, and 5c. Category 5a is a catchall category and applies to Category 5 filers who do not otherwise fall under either Category 5b or 5c. Categories 5b and 5c were added to Form 5471 as the result of Revenue Procedure 2019-40, which the IRS issued in response to the repeal of provisions in Section 958(b) that previously disapplied the constructive downward attribution rules of Section 318(a)(3) to the extent that they attributed stock owned by a foreign person to a U.S. person.

Categories 5b and 5c specifically apply to those CFCs that are considered to be foreign-controlled for purposes of Form 5471. Such a CFC, referred to herein as a “Foreign-Controlled CFC,” is a foreign corporation that, although classified as a CFC, would not be so classified if the determination were made without applying Section 318(a)(3)’s downward attribution rules so as to consider a U.S. person as owning the stock owned by a foreign person.

A Category 5b filer is a U.S. shareholder who owns, directly or indirectly under Section 958(a) (but not constructively under Section 958(b)), the stock of a Foreign-Controlled CFC and is not related (within the meaning of Section 954(d)(3)) to that Foreign-Controlled CFC. Section 954(d)(3) defines two persons as being “related” to each other in terms of “control,” where one person controls or is controlled by the other, or is controlled by the same person or persons who control the other. Here, control over a corporation means directly or indirectly owning more than 50 percent of the corporation’s stock by either vote or value. A Category 5b filer is typically a shareholder who owns, directly or indirectly, stock in a foreign corporation but is not related to the foreign corporation because the common parent of both the shareholder and the foreign corporation does not control the foreign corporation.

A Category 5c filer is a U.S. shareholder who does not own, either directly or indirectly, the stock of a Foreign-Controlled CFC but is related (within the meaning of Section 954(d)(3)) to that Foreign-Controlled CFC. A Category 5c filer is typically a shareholder that owns the stock of a foreign corporation only because of constructive stock ownership under Section 318(a)(3) and the shareholder is related to the foreign corporation because each of them is under the control of a common parent.

A U.S. shareholder who does not own, either directly or indirectly, the stock of a Foreign-Controlled CFC and is not related (within the meaning of Section 954(d)(3)) to that Foreign-Controlled CFC, is neither a Category 5b nor 5c filer. Such U.S. shareholder is deemed not to fall under the Category 5a catchall and is exempt from the obligation to file Form 5471.

Schedule I-1

Schedule I-1 must be completed by Category 4, 5a, 5b, and 5c filers. Schedule I-1 does not need to be completed for each category of income. Schedule I-1 must be completed once for general category income, passive category of income, or both.

Schedule I-1 for Form 5471 is used to report information determined at the CFC level with respect to amounts used in “global intangible low-taxed income” or GILTI inclusions by U.S. shareholders. The information from Schedule I-1 is used by U.S. shareholder(s) of a CFC to file IRS Form 8892, U.S. Shareholder Calculation of GILTI, and may assist in the completion of Form 1118 and 1116. This article discusses GILTI and how it is reported on Schedule I-1.

What is GILTI?

For years, tax planning for international outbound taxation remained the same, mitigation of Subpart F income, maximization of foreign tax credits, and transfer pricing. The 2017 Tax Cuts and Jobs Act has broken the monotony associated with international tax planning for outbound transactions and added a new category for tax planning. In addition to the anti-deferral regime built into Subpart F, the Tax Cuts and Jobs Act has introduced a new anti-deferral category known as GILTI

GILTI is a provision that can be found in Internal Revenue Code Section 951A. The Tax Cuts and Jobs Act requires a U.S. shareholder of a controlled foreign corporation (“CFC”) to include in income its global intangible low-taxed income or GILTI. The GILTI tax is meant to discourage businesses from avoiding federal taxes by holding intangible assets such as software patents or other intellectual property outside the United States in tax haven countries. GILTI creates no additional marginal tax rates. Instead, GILTI expands the definition of what items of offshore income are taxable. Think about it like this, Subpart F of the Internal Revenue Code often subjects passive income earned outside the United States to taxation. The GILTI provisions do the same. However, instead of taxing foreign passive income, GILTI subjects certain items of income known as “intangible income” to tax.

What should be understood of the GILTI regime is that it ends the tax deferral treatment of “intangible income” and subjects “U.S. shareholders” of CFCs, defined as U.S. persons owning at least 10 percent of the vote or value of a specific foreign corporation. A U.S. shareholder’s GILTI is calculated as the shareholder’s “net CFC tested income” less “net deemed tangible income return” determined for the tax year. Because of the way GILTI is computed, it will likely hit tech companies and service providers the hardest. That’s because these types of businesses have the most intangible income producing assets and have benefited the most from creative international tax planning in the past. Many companies in these industries successfully transferred offshore “intangible property” to tax haven countries for tax planning purposes. A number of these tax haven countries completely exempted corporate income tax royalties derived from patents on inventions, regardless of where the patent was patented or where the underlying research and development was carried out. GILTI is designed to curb the tax benefits of transferring “intangible property” offshore. Even though GILTI was designed to only tax “intangible income,” the way GILTI is computed, it has a much broader reach. The broad reach of GILTI is demonstrated in the example discussed below.

Who is Subject to GILTI?

GILTI is assessed on a “United States shareholder” of any CFC for any taxable year of such United States shareholder that receives intangible low-tax income for such year. See IRC Section 951A(a). A CFC is defined as a foreign corporation in which 50 percent of: 1) the total combined voting power of all classes of stock of such corporation entitled to vote, or 2) the total value of the stock of such corporation is owned (within the meaning of Section 958(a), or is considered as owned by applying the rules of ownership of Section 958(b) during any day of the taxable year of such foreign corporation. See IRC Section 957(a).

A “United States shareholder” can be defined as a “U.S. person” (Section 7701(a)(1) of the Internal Revenue Code defines a “U.S. person” to include an individual, trust, estate, partnership, or corporation) who owns (within the meaning of Section 958(a)), or is considered as owning by applying the rules of ownership of Section 958(b), 10 percent or more of the total combined voting stock entitled to vote of such foreign corporation, or 10 percent or more of the total value of shares of all classes of stock of such foreign corporation. See IRC Section 951(b).

Calculating the GILTI Taxable Amount

So how is GILTI computed? As a general rule, GILTI is determined by first calculating a deemed return on the CFC’s tangible assets. The first part of the GILTI formula is a calculation called the net CFC tested income. The net CFC tested income is the excess of the aggregate of a tested income of each CFC held by a U.S. shareholder (The tested gross income of a CFC excludes Subpart F income, effectively connected income, income excluded from foreign base company income or insurance income by reason of high-tax exception, dividends received from a related person, and foreign gas and oil income less deductions allocable to such gross income). This amount is taken over the aggregate of the shareholder’s pro rata share of a tested loss of each CFC (The tested loss is the excess of deductions allocable to the CFCs’ disregarding tested income exceptions over the amount of gross income).

Next, the net deemed tangible investment income must be determined. The net deemed tangible investment income is 10 percent of a shareholder’s pro rata share of the Qualified Business Asset Investment Income or (“QBAI”) for each CFC, less the amount of interest expense taken into consideration of the CFC tested income. The QBAI is the adjusted basis of a CFC’s depreciable assets used to generate GILTI. To determine QBAI, “specified tangible property” must be identified that produced the tested income of a CFC. These assets must be depreciable. See IRC Section 951A(d)(1)(B). The adjusted basis for each asset must be computed, quarterly and averaged annually. See IRC Section 951A(d)(1). Once the QBAI is determined, specified interest expenses are subtracted from QBAI. See Treas. Reg. Section 1.951A-1(c)(3)(ii).

Below, please find an illustration as to how GILTI is computed.

The first part of the formula is to determine the tested income. In order to determine how the tested income is computed, let’s assume hypothetical U.S. C-corporation solely holds CFC 1 and CFC 2. These CFCs have annual gross income of $5,000,000 and $4,250,000. The CFCs have deductions of $3,000,000 and $5,000,000 each. The income and expenses of the CFCs result in net tested income of $1,250,000 ($5,000,000 – $3,000,000 plus $4,250,000 – $5,000,000).

The second part of determining GILTI is to calculate the net deemed tangible income. In our hypothetical, CFC 1 and CFC 2 had a quarterly average specific tangible property of $5,000,000 and $6,000,000 respectively. Applying the 10 percent QBAI test, 10 percent of  $5,000,000 and $6,000,000 would be $500,000 and $600,000 (10% of $5,000,000 = $500,000 and 10% of $6,000,000 = $600,000). This results in a net deemed tangible income return of $1,100,000 ($500,000 + $600,000 = $1,100,000).

Applying part one and part two of the GILTI formula determines the GILTI income. In this case, the net CFC tested income exceeds the deemed tangible income return by $150,000 ($1,250,000 – $1,100,000 = $150,000). Therefore, the GILTI income in our hypothetical is $150,000. (It should be noted that the GILTI computation in this hypothetical is relatively simple. It is easy to envision significantly more complex scenarios).

How the $150,000 GILTI income is taxed depends on the classification of the U.S. shareholder. If the U.S. shareholder is an individual taxpayer or S-corporation, the $150,000 of GILTI income would be taxed at the shareholder’s (after the applicable flow-through for subchapter S purposes) marginal tax rates. On the other hand, if the shareholder is taxed as a C-corporation (or an individual making a Section 962 election), the $150,000 GILTI income is taxed at the corporation’s marginal tax rate. However, the impact of the GILTI income can be reduced by foreign tax credits (up to 80 percent of foreign taxes paid) and special GILTI deduction under Section 250 of the Internal Revenue Code. The special GILTI deduction allows a reduction in the sum equal to 50 percent. (This deduction will be reduced to 37.5 percent after December 31, 2025).

Is the Ten Percent QBAI Excluded From Tax?

As discussed above, QBAI excludes a certain amount from GILTI. It is worth noting that the QBAI amount identified under Section 951A(b)(2)(A) that is carved out from GILTI could be classified as untaxed E&P which Section 1248 could attach. Under Section 1248(a), gain recognized on a U.S. shareholder’s disposition of stock in a CFC is treated as dividend income to the extent of the relevant E&P accumulated while such person held the stock. For individual shareholders of a CFC who sell stock in a CFC, Section 1248 may treat any untaxed E&P as a result of QBAI as non-qualified dividends for federal tax purposes rather than capital gains.

We will now discuss Schedule I-1 of the Form 5471.

Separate Category

Schedule I-1 asks the CFC shareholder to enter a category of income. Schedule I-1 is completed once (for general income, passive income, or both). A Schedule I-1 that includes passive category income must enter (“PAS”) in the entry space at the top of Schedule I-1. This is the case even if the Schedule I-1 also includes general income. With respect to CFC shareholders with only general income (and no passive income), the CFC shareholder should only enter the code “GEN” in the entry on the top of the schedule.

Line 1. Gross Income

On Line 1, CFC shareholders must enter the CFC’s gross income in its functional currency. The functional currency is “the currency of the economic environment in which a significant part of such activities” is “conducted and which is used by the [corporation] in keeping its books and records.” See IRC Section 985(b)(1)(B). If the CFC’s cost of goods sold exceeds its gross income, a negative amount is permitted on Line 1.

Line 2(a). Effectively Connected Income Exclusion

On Line 2a, CFC shareholders are asked to enter the amount of the CFC’s income described in Section 952(b), which is generally income from sources within the United States that is effectively connected to the conduct of a trade or business by the CFC in the United States and not reduced or exempted from U.S. tax pursuant to an income tax treaty.

Line 2b. Subpart F Income

For Line 2b, the CFC shareholder must enter the amount, if any, of the CFC’s gross income or loss taken into account in determining Subpart F income. Amounts determined to be 956(a) income is not classified as Subpart F income for purposes of Line 2b.

Subpart F income includes the following categories of foreign source income.

Insurance Income

Premiums and other income from insurance activities represent the type of portable income that can be readily shifted to a foreign corporation in order to avoid U.S. taxation. Prior to the enactment of Subpart F, a domestic corporation could exploit the portability of insurance income by establishing an offshore insurance company. For example, a U.S. insurance company that had issued policies insuring U.S. risks might form a subsidiary in a low-tax jurisdiction and reinsure that U.S. risk with that foreign subsidiary. Assuming there was a bona fide shifting and distribution of risks, the U.S. parent could deduct the premiums paid to the subsidiary against U.S. taxable income. In addition, assuming the foreign subsidiary had no office or other taxable presence in the United States, the premium income was not subject to U.S. taxation. The net effect was the avoidance of U.S. taxes on the premium income routed through the foreign subsidiary.

To negate the tax benefits of such arrangements, Subpart F income includes any income attributable to issuing or reinsuring any insurance or annuity contract in connection with a risk located outside the CFC’s country of incorporation.

Definition of Foreign Base Company Income

1. Foreign Personal Holding Company Income

Foreign personal holding company income primarily includes:

1. Dividends, interest, royalties, rents, and annuities;

2. Net gains from the disposition of property that produces, dividend, interest, rent, and royalty income (except for net gains from certain dealer sales and inventory sales), and

3. Net gains from commodity and foreign currency transactions (excluding net gains from active business and hedging transactions).

However, foreign personal holding company income does not include (1) rents and royalties which are derived from the active conduct of a trade or business and which are received from unrelated persons, (2) export financing interest derived from the conduct of a banking business, (3) dividends and interest received from related parties incorporated in the same country as the CFC, and (4) rents and royalties received from related parties for the use of property in the CFC’s country of incorporation.

A “related person” is defined in Section 954(d)(3). For purposes of this definition, an individual, partnership, trust or estate that controls or is controlled by a CFC is a “related person” with respect to the CFC. In addition, a corporation, partnership, trust or estate that is controlled by the same persons or persons that control a CFC is a “related person” with respect to the CFC. See IRC Section 954(d)(3)(B). The definition of control means, in the case of a corporation, direct or indirect ownership of more than 50 percent of the total voting power or value of the stock of the corporation. In the case of a partnership, trust or estate, control means direct or indirect ownership of more than 50 percent (by value) of the beneficial interests in the partnership, trust or estate.

Foreign personal holding company income can also include related person factoring income, income from foreign currency gains, income from commodity transactions, gains from the sale of property producing passive income, income from notional principal contracts, payments in lieu of dividends, and certain personal services contract income.

2. Foreign Base Company Sales Income

Foreign base company sales income includes any gross profit, commission, fees, or other income derived from the sale of personal property which meets the following requirements:

1) The CFC buys goods from or sells them to a related person,

2) The property is manufactured, produced, grown, or disposition outside the CFC’s country of incorporation.

Therefore, if a good is neither manufactured nor sold for use in the CFC’s country of incorporation, then it is assumed that the CFC is not a bona fide foreign manufacturing or marketing subsidiary, but rather a base company organized to avoid tax. A CFC is considered to have manufactured a good if it substantially transforms the good. See IRC Section 954(d)(1)(A).

S. Rep. No. 1881, 87th Cong., 2nd Sess. 84 (1962), explained the two requirements of foreign base company sales income as follows:

The sales income which Subpart F is primarily concerned with income of a selling subsidiary (whether acting as principal or agent) which has been separated from manufacturing activities of a related corporation merely to obtain a lower rate of tax for the sales income. This accounts for the fact that this provision is restricted to sales of property, to a related person, or to purchase of property from a related person. Moreover, the fact that a lower rate of tax for such a company is likely to be obtained only through purchases and sales outside of the country in which it is incorporated, accounts for the fact that the provision is made inapplicable to the extent the property is manufactured, produced, grown, or extracted in the country where the corporation is organized or where it is sold for use, consumption, or disposition in that country. Mere passage of title or the place of the sale are not relevant in this connection.

It should be noted that this definition does not require any finding of a tax-avoidance purpose for the transaction.

Foreign base company income includes income generated by such trading activity whether the controlled foreign corporation buys and resells the property or merely acts as a sales agent or representative in return for a sales commission. Foreign base company sales income includes only sales income from the purchase and sale of property that is not manufactured, produced or constructed by the CFC. It does not include cases in which significant manufacturing, major assembling or construction activity is carried on with respect to the property by the CFC. For this purpose, the property sold will be treated as having been manufactured, produced or constructed by the CFC if the property is “substantially transferred” by the corporation before its sale. In addition, if the property purchased by the CFC is used as a component part of the property sold, the corporation will be treated as having sold a manufactured product, rather than component parts, but only if the operations conducted by the CFC with respect to the property purchased and sold are “substantial” and are generally considered to constitute the manufacture, production or construction of property. The application of this rule generally depends on the facts and circumstances of each case. However, the regulations contain a safe-harbor rule under which the CFC’s operations with respect to the product will be treated as manufacturing if its conversion costs (direct labor and factory burden) account for 20 percent or more of the total costs of goods sold for the product.

Even if the CFC manufactures the products it sells, income generated by sales operations handled through a branch operation outside of the country in which the CFC is incorporated will be treated as foreign base company sales income under certain circumstances. That result will occur if the combined effect of the tax treatment accorded the branch by the country of incorporation of the CFC and the country in which the branch is established is to treat the branch substantially the same as if it were a wholly owned subsidiary corporation of the CFC organized in the country in which it carries on its trade or business. See IRC Section 954(d)(2).

3. Foreign Base Company Services Income

Foreign base company services income includes any compensation, commission, fees, or other income derived from the performance of technical, managerial, engineering, architectural, scientific, skilled, industrial, commercial, and like services, where the CFC performs the services for or on behalf of a related person and the services are performed outside the CFC’s country of incorporation. See IRC Section 954(e)(1).

4. Foreign Base Company Shipping Income

The fourth major category includes income derived from the use of an aircraft or vessel in foreign commerce, from the performance of services directly related to such use of an aircraft or vessel or from the sale or exchange of the aircraft or vessel.

Line 2c. High-Tax Exception

On Line 2c, CFC shareholders must disclose the amount, if any, of the CFC’s gross income excluded from foreign base company income (as defined in Section 953) by reason of Section 954(b)(4), the high-tax exception. An item of income of a CFC that would otherwise by foreign base company income will not be foreign base company income if it was subject to an effective foreign tax rate greater than 90 percent of the maximum U.S. corporate tax rate specified in Section 11 of the Internal Revenue Code. Thus, under current law, if the item of income of a CFC is subject to a foreign tax of more than 18.9 percent (i.e., 90 percent of 21 percent), it will not be foreign base company income. See IRC Section 954(b)(4). This exception applies after reducing the income by deductions.

Line 2d. Related Party Dividends

On Line 2d, CFC shareholders must enter the amount of any dividend income received by the CFC of a related person as defined in Section 954(d)(3). A related party is an individual, corporation, partnership, trust, or estate that controls or is controlled by a CFC is a “related party” with respect to that CFC. See IRC Section 954(d)(3)(A). In addition, a corporation, partnership, trust or estate that is controlled by the same person or persons that control a CFC is a “related party” with respect to the CFC.

Line 2e. Foreign Oil and Gas Extraction Income

One Line 2e, CFC shareholders must enter the amount of the CFC’s taxable income or loss from sources outside the United States from the following:

1) The extraction (by the corporation or any other person) of minerals from oil or gas wells located outside the United States.

2) The sale or exchange of assets used in the trade or business of extracting minerals from oil or gas wells located outside the United States and its possessions.

Line 3. Total Exclusions

On Line 3, the CFC shareholders should enter the sum of Lines 2a through 2e in the CFC’s functional currency.

Line 4. Gross Income Less Exclusions

One Line 4, the CFC shareholders should subtract line 3 from line 1 and enter the result on Line 4 in the CFC’s functional currency.

Line 5. Deductions Properly Allocable to Amount on Line 4

On Line 5, CFC shareholders should enter the deductions (including taxes) properly allocable to the amount on Line 4 (or to which such deductions would be allocable if there were such gross income) in the CFC’s functional currency. Any deductions should be properly allocated to the type of income at issue such as Subpart F income or GILTI.

Line 6. Tested Income (Line 4 minus Line 5)

On Line 6, CFC shareholders should subtract line 5 from line 4 and enter the result on Line 6. The CFC shareholders should report the exchange rate using the “divide-by convention.”

If the amount entered on Line 6 is positive (tested income), the CFC shareholder will enter that amount in U.S. dollars on Form 8892, Schedule A Column (c), for the CFC’s row. If, however, the amount entered on Line 6 is negative (tested loss), the CFC will enter that loss amount in U.S. dollars on Form 8992, Schedule A, Column (d), for the CFC’s row.

In order to understand the numbers that must be entered on Line 6 (i.e., the “tested income” and “tested loss”), the individual preparing Schedule I-1 should understand how GILTI is computed. A U.S. shareholder’s GILTI for a taxable year is the excess, if any, of the U.S. shareholders’ “net CFC tested income” for the taxable year over that shareholder’s “net deemed tangible income return” for the taxable year. Net CFC tested income with respect to any U.S. shareholder is the excess (if any) of the aggregate of the shareholder’s pro rata share of the “tested income” of each CFC with respect to which the shareholder is a U.S. shareholder of the taxable  year over the aggregate of the shareholder’s pro rata share of the “tested loss” of each CFC with respect to which the shareholder is a U.S. shareholder for the taxable year of the U.S. shareholder. See IRC Section 951A(c). These amounts are determined for each taxable year of the CFC which ends in or with the taxable year of the U.S. shareholder.

The formula for determining GILTI can be expressed as follows:

GILTI = Net CFC Tested Income – Net Deemed Tangible Income Return = [Tested Income – Tested Loss] – [10% of QBAI – Certain Interest Expense]

The tested income income of a CFC is the excess (if any) of the gross income of the CFC determined without regard to certain items (stated below) over deductions properly allocable to that gross income. The items excluded from gross income are as follows:

1. Any item of income described in Internal Revenue Code Section 952(b). This includes any U.S. source income effectively connected with the conduct by such corporation of a trade or business within the U.S.

2. Any gross income taken into account in determining subpart F income of the CFC.

3. Any gross income excluded from the foreign base company income and the insurance income of the CFC by reason of Internal Revenue Code Section 954(b)(4), the high tax exception.

4. Any dividend received from a related person as defined in Section 954(d)(3).

5. Any foreign oil and gas extraction income of the CFC.

The tested loss of a CFC is the excess (if any) of associated deductions that exceed tested income.

The CFC’s tested loss stated on Line 6 should be disclosed in the CFC’s functional currency, U.S. dollars, and the conversion rate from functional currency to U.S. dollars.

Line 7. Tested Foreign Income Taxes

The CFC shareholders must disclose the CFC’s tested foreign taxes on Line 7. According to the IRS’s instructions, if the CFC has a tested loss on Line 6, the CFC shareholder should enter zero. If the CFC has tested income on Line 6, enter only those foreign income taxes that are properly attributable to the CFC’s tested income.

The CFC’s tested income stated on Line 7 should be disclosed in the CFC’s functional currency, U.S. dollars, and the conversion rate from functional currency to U.S. dollars.

Line 8. Qualified Foreign Asset Investment (“QBAI”)

If the CFC has a tested loss on Line 6, the CFC shareholder must enter zero. If the CFC has tested income on line 6, the CFC shareholder should enter the QBAI. This amount must be converted from functional currency to U.S. dollars using the average exchange rate for the year of the CFC. QBAI is the average of the CFC’s aggregate adjusted basis, as of the close of each quarter or its taxable year, specified tangible used in its trade or business in the production of tested income, and for which a deduction is allowed under Section 167 of the Internal Revenue Code. Adjusted basis in any property must be determined by using the alternative depreciation system under Section 168(g) and allocating depreciation deductions with respect to such property ratably to each day during the period in the taxable year to which such depreciation relates.

Specified tangible property means any tangible property used in the production of tested income. If such property was used in the production of tested income (for example- dual-use property), the property is treated as specified tangible property in the same proportion that the amount of tested income determined before allocable deductions (line 4) produced with respect to the property bears to the total amount of gross income produced with respect to the property.

A CFC with tested income that a partner of a partnership that has depreciable tangible property determines its share of the partnership’s average adjusted basis in the depreciable tangible property of the partnership based on the amount of the distributive share of the gross income produced by the property that is included in the CFC’s gross tested income relative to the total amount of gross income produced by the property. The partnership’s average adjusted basis in the depreciable tangible property of the partnership is generally determined based on the average of the adjusted basis in the property as the close of each quarter of the partnership’s tax year that ends with or within the CFC’s tax year.

The QBAI stated on Line 8 should be disclosed in the CFC’s functional currency, U.S. dollars, and the conversion rate from functional currency to U.S. dollars.

Lines 9a through 9d. Interest Expense

For Lines 9a through 9d, the CFC shareholder must disclose their “interest expense.” A CFC shareholder’s tested interest expense is the amount by which the tested interest expense reduces (as an allowable deduction) the CFC shareholder’s pro rata share of tested income (or increases the U.S. shareholder’s pro rata share of tested loss, or both). A CFC shareholder’s pro rata share of tested interest income is the amount by which the CFC’s tested interest income increases (as an item included in gross tested income) the CFC shareholder’s pro rata share of tested income (or reduces the U.S. shareholder’s pro rata share of tested income (or reduces the U.S. shareholder’s pro rata share of tested loss, or both). See Prop. Regs. Sections 1.951A-1(d)(5) and (6).

Prop. Regs Section 1.951A-4 defines a CFC’s tested interest expense. Tested interest expense means interest expense paid or accrued by a CFC that is taken into account to determine the tested income or tested loss of that CFC, reduced by the CFC’s qualified interest expense. Interest expense means any expense or loss treated as interest expense under the Internal Revenue Code or its regulations, and any other expenses or loss incurred to secure the use of funds when the time value of money is the predominant consideration.

Line 9a.

For Line 9a, the CFC shareholder should enter the amount of interest expense included on Line 5.

Line 9b.

For Line 9b, the CFC shareholder should enter the CFC’s qualified interest expense.

Line 9c.

For Line 9c, the CFC shareholder should enter the CFC’s tested loss QBAI amount as defined in Treasury Regulation Section 1.951A-4(b)(1)(iv).

Line 9d.

For Line 9d, the CFC shareholder should subtract the sum of Line 9b and Line 9c from Line 9a and enter the result on Line 9d.

Line 10a through 10c.  Interest Income

For Lines 10a through 10c, the CFC shareholders must disclose tested interest income. Tested interest income means interest income included in the CFC’s gross tested income, reduced by the CFC’s qualified interest income. Interest income means any income or gain treated as interest income under the Income or gain recognized to secure the forbearance of funds when the time value of money is the predominant consideration.

Line 10a.

For Line 10a, the CFC shareholder should enter the amount of interest income included on Line 4.

Line 10b.

For Line 10b, the CFC shareholder should enter the CFC’s qualified interest income as defined in Treasury Regulation Section 1.951A-4(b)(2)(iii).

Line 10c.

For Line 10c, the CFC shareholder should subtract Line 10b from Line 10a and enter the result on Line 10c. A CFC shareholder should enter the tested interest income on Line 10c in the CFC’s functional currency, U.S. dollars, and the conversion rate from functional currency to U.S. dollars.

Conclusion

The IRS Form 5471 is an incredibly complicated return. Each year an international tax attorney should review direct, indirect, and constructive ownership of the reporting CFC to determine the impact of any changes in percentages, filer categories, and CFC status. Workpapers should also be prepared and maintained for each U.S. GAAP adjustment and foreign exchange. In addition, an accounting should be made for adjustments to prior and current year previously taxed E&P that become PTEPs on Schedule J, E-1, and P.

Anthony Diosdi is one of several tax attorneys and international tax attorneys at Diosdi & Liu, LLP. Anthony focuses his practice on domestic and international tax planning for multinational companies, closely held businesses, and individuals. Anthony has written numerous articles on international tax planning and frequently provides continuing educational programs to tax professionals.

Anthony has assisted companies with a number of international tax issues, including Subpart F, GILTI, and FDII planning, foreign tax credit planning, and tax-efficient cash repatriation strategies. Anthony also regularly advises foreign individuals on tax efficient mechanisms for doing business in the United States, investing in U.S. real estate, and pre-immigration planning. Anthony is a member of the California and Florida bars. He can be reached at 415-318-3990 or [email protected].

This article is not legal or tax advice. If you are in need of legal or tax advice, you should immediately consult a licensed attorney.