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Understanding GILTI – For US Expats in Canada

Understanding GILTI – For US Expats in Canada

Understanding GILTI – For US Expats in Canada

Global Intangible Low-taxed Income – An introduction for the U.S. shareholders of Canadian corporations!

Global Intangible Low-Taxed Income – Simplified!

The Tax Cuts and Jobs Act of 2017 (TCJA) brought some major changes for U.S. taxpayers.

The Global Intangible Low-Taxed Income (GILTI) regime was enacted to tax the U.S. Shareholders of Controlled Foreign Corporations (CFC) on a current basis. TCJA introduced Transition tax and GILTI. Transition tax (Sec 965) is a one-time tax on the post-1986 undistributed earnings of CFCs of individual US shareholders. Whereas GILTI is applicable on an ongoing basis, as required by Sec 951A.

2020 Update: In July 2020, the treasury issued final regulations TD 9902 and proposed regulations REG-127732-19

Final regulations provide some relief in the form of High-Tax Exclusion (HTE) whereas the proposed regulations address the High-Tax Exception from subpart F income.

Notice to Readers: This post is to simplify the GILTI and its implications for US taxpayers with Canadian CFCs. Further updates might be needed for future changes, therefore, please always refer to the date of the article. This article is not professional advice and the readers should consult their cross-border tax accountants before making any decisions. 

What is GILTI?

GILTI stands for Global Intangible Low-Taxed Income. The scope of GILTI extends way beyond the one indicated by its name. GILTI is a CFC income excluding subpart F income, added to the US shareholder’s current income regardless of whether the income is distributed or not. Subpart F income continues to be taxed on the current basis. The U.S. shareholders need to include GILTI income for the corporation tax years beginning after December 31, 2017.

This is important to mention that Subpart F income is first added to current income and GILTI comes after that. GILTI is part of Subpart F, however, the calculation for GILTI is entirely different.

Who is subject to GILTI?

US shareholders who own at least 10% of a Controlled Foreign Corporation (CFC). This ownership of a CFC can be direct, indirect or Constructive, either 10% of the combined voting power of all classes of shares or 10% of the value of all classes of the shares.

A controlled foreign corporation is a foreign corporation meeting two conditions:

  1. More than 50% of the foreign corporation’s stocks, either vote or in value, are owned by U.S. persons.
  2. If the U.S. shareholder of such a corporation owns at least 10% of votes or value, it is considered a CFC.

U.S. shareholders can be either individuals or corporate. However, different tax rates are applicable for GILTI for individual and corporate taxpayers.

GILTI and the Canadian Corporations

Many U.S. citizens including dual citizens own Canadian corporations. How does GILTI impact these shareholders depend largely on the type of the corporation and investments? However, two important types of corporations are mostly affected:

  1.  Canadian Controlled Private Corporations: Canadian-controlled private corporations (CCPC) generally enjoy lower corporate income tax rates in Canada due to small business deduction (SBD). SBD brings down the effective tax rate as it is applied as a credit to the tax liability of a CCPC. Though there is no requirement for a corporate taxpayer to use SBD, however, a taxpayer cannot voluntarily refuse to take this credit in order to avoid the GILTI application.
  2. Professional Corporations or Services corporations: Another type of corporation most affected by GILTI is the corporations in the services industry with lower tangible assets. Most professional corporations such as accounting firms and law firms do not own much of tangible assets. The U.S. shareholders of such corporations generally see an impact of GILTI and incremental U.S. taxes.

How is GILTI calculated?

GILTI is calculated using the below formula:

GILTI = Net CFC tested income – net deemed intangible income return

Where,

Net CFC tested income = aggregate pro-rata share of tested income of each CFC – pro-rata share of each CFC’s tested loss

Net deemed tangible income return (DTIR) = 10% of pro-rata share of qualified business asset investment (QBAI)

CFC tested income

In essence, CFC tested income is the gross income less deductions and Subpart F Income.

While calculating the CFC’s tested income, certain income is excluded from the calculation:

  1. Branch income for which CFC files 1120-F
  2. Sec 951(a)(1) Subpart F income
  3. Income excluded from Subpart F income under the high-tax exception, Sec 954(b)(4)
  4. Sec 954 (b)(5) dividends received from related persons
  5. foreign income from oil & gas extraction

How to calculate the pro-rata share of the CFC’s income by the US shareholders? The pro-rata share should be commensurate with the relative economic interest of the shareholder. For example, the income allocation to a preferred shareholder is different than the one to the common shareholder. While making this allocation, one should assume if there is an actual distribution, how much the shareholder will get.

How about allocating the deductions to the excluded income of CFC? By treating the CFC as a domestic corporation and determining the deductions as per section 61.

Deemed intangible income return (DITR)

Deemed intangible income return is a “routine” return on tangible assets. Routine return, in this case, is set to be at 10%. So the CFC’s tangible assets, qualified business asset investment (QBAI) are assumed to generate a 10% return annually.

  1. CFC’s tangible assets are recalculated using US Alternative depreciation system (ADS) rules every quarter.
  2. Net DTIR is used to offset the Net tested income of the U.S. shareholders.
  3. QBAI of a tested loss CFC is excluded from the calculation of aggregate pro-rata share of QBAI.
  4. QBAI in excess of 10X of tested income is allocated to the common shareholders.
  5. Temporarily held, more than one quarter and less than 12 months, tangibles are ignored for GILTI calculation as per anti-abuse provisions.

This is important for the shareholders to plan ahead to best optimize the GILTI inclusions. For example,

  1. Merge loss-making CFC with profit-making one since the tested loss CFCs are excluded from aggregate pro-rata share of QBAI calculation.
  2. Even if the assets placed before tax reform are fully depreciated, using ADS may result in a QBAI base.
  3. Be mindful of the new acquisitions and plan carefully so that the assets are not excluded under anti-abuse rules.

GILTI high-tax exclusion

GILTI high-tax exclusion (HTE), similar to the high-tax exception under subpart F,  was added to the final regulations issued in July 2020.

  1. HTE election is available for the corporation’s tax year beginning after July 23, 2020. However, the election can be applied for the tax years beginning after December 31, 2017, and the taxpayers can amend the already filed affected the tax returns.
  2. The election is made by the Controlling domestic shareholder. The shareholder making this election must give notice to all other affected shareholders who do not have an option to elect otherwise. The election is made for the whole group of CFCs and the controlling shareholder cannot pick and choose the individual CFCs.
  3. GILTI is calculates using “net” CFC tested income. By electing HTE, it is possible that a loss CFC (U.S. loss, not foreign loss) may become an excluded one. The excluded CFC cannot reduce net CFC tested income anymore, hence, the loss is not included for GILTI calculation.
  4. HTE also excludes the tangible assets (QBAI) of excluded CFCs. This may increase the net CFC tested income and create U.S. tax liability
  5. HTE can adversely affect the foreign tax credits! All the low-taxed CFCs can result in lower foreign tax credits.
  6. HTE is available on year-by-year basis.
  7. Low-taxed income will keep on giving rise to GILTI

Effective Foreign tax rate for high-tax exclusion

The final regulations use the “tested unit” concept as opposed to the previously proposed “qualified business unit”. The effective tax rate is determined at the tested-unit level instead of the overall effective foreign tax rate of the CFC.

Tested units are a further breakdown of a CFC and can be a CFC, a flow-through entity, or a branch of CFC. The foreign effective tax rate at each tested unit level helps the taxpayer if one tested unit pays a higher tax then than another one.

GILTI high-tax exclusion of the CFC income is only available if the foreign effective tax rate is more than 90% of the maximum U.S. statutory corporate income tax rate. The current U.S. corporate income tax rate is 21%, therefore, the effective foreign tax return of a tested unit must be greater than 18.9%. The income used to calculate the effective income tax rate is calculated using the U.S. principles.

Many of the CCPCs have an effective income tax rate lower than this. However, the non CCPCs (or CCPCs with higher income) may qualify for high-tax exclusion due to higher corporate tax rates in Canada than in the U.S.

How the GILTI is taxed?

GILTI is included in the taxpayer’s income for the year. Tax rate depends on whether the taxpayer is an individual or a corporation.

  1. There is a disparity between individual and corporate taxpayers. GILTI is taxed at the marginal rates for the individual taxpayers which may go up all the way up to 37% (2020 – highest tax bracket rate). Since corporate taxpayers enjoy a 50% deduction of GILTI income (sec 250), the resulting tax rate is 10.5% (ignoring the effects of distributions).
  2. Section 962 election is available for the individual shareholders to be taxed as a corporation.
  3. Income due to GILTI inclusion is taxed only once! The future distribution of dividends from the CFC is not taxable to the shareholders.
  4. Net tested loss of one year is not available for carrying forward to the next years.
  5. Different tax years of CFC and shareholder may result in foreign tax credit mismatch.

Section 962 Election

An individual taxpayer can elect to be taxed as a corporation using Sec 962 election.

  1. GILTI income is taxed at the corporate tax rate (21%) instead of personal margin rates (37% highest).
  2. Taxpayers can use foreign taxes paid up to 80% to reduce GILTI tax liability.
  3. Individual taxpayers are subject to tax on qualified dividends (15%) when the actual distributions from CFC take place. However, foreign tax credits are also available for the foreign tax paid on dividends. Dividends from Canadian corporations to U.S. residents are subject to reduced taxes due to the treaty.

Future of GILTI under Biden’s tax plan

President Biden has vowed to increase the corporate tax rates to 28% and removing the 50% deduction of GILTI income for the corporate taxpayers. Moreover, at individual levels, Biden’s tax plan intends to revert the highest income tax rate to 39.6% (currently 37%).

  1. A corporate tax rate increase can raise the threshold for the high-tax exclusion. The current threshold is 18.9% at a 21% current US corporate tax rate, an increase to 28% will result in a 25.2% threshold of HTE. This can cause more CCPCs to be not eligible to take advantage of HTE.
  2. Removal of 50% deduction on GILTI income inclusion will make US corporate shareholders revisit their tax planning.
  3. Personal tax rates increase can result in higher tax liability on GILTI income.

How to avoid GILTI inclusion?

GILTI inclusion is not an option, it’s a requirement! If US persons own the Canadian corporations (or other controlled foreign corporations in other countries) they are subject to GILTI rules. GILTI calculations and tax preparation costs sometimes run high for small businesses. There are a couple of ways where US shareholders of Canadian corporations can optimize their income taxes:

Pay yourself a Salary:

If you work for your professional corporation or run a services business through a corporation, pay yourself a salary. By doing so you can avoid filing elections.

Many owner-managers in Canada tend to not pay themselves salaries. However, paying yourself a salary from your corporation can result in a deduction reducing the corporate taxable income. This can be particularly helpful if the business is a small business. Employment income taxed on T1 generally generates enough foreign tax credit to wipe off income taxes on wages on 1040.

Use section 962 election:

File Sec 962 election so that the income is not taxed at the higher personal marginal rates in the U.S. This way foreign tax credits can be utilized at both personal and corporate levels. For more details, see above.

Other Options

  1. Merge Loss-making tested units with profit-making ones.
  2. If you are a small business, consider operating in an unincorporated form of business such as sole proprietorship.
  3. Restructure your Canadian corporation as a subsidiary of US C corp.

GILTI and related elections are complex tax issues and taxpayers must plan ahead with their cross-border tax accountants. U.S. Canada Cross border tax professionals are generally up-to-date with the changing income tax rules and treaty matters.

Maroof HS CPA Professional Corporation is a Toronto accounting firm offering full-scale cross-border income tax services in Canada. Get in touch with us!

Maroof Hussain Sabri

Maroof Hussain Sabri

Maroof is a CPA, CA in the province of Ontario and Alberta in Canada. He is also a licensed CPA from North Dakota in the United States. He lives in Toronto.

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