How to avoid triple taxation under the branch profits tax and FIRPTA.

• Author: Autrey, Ashley
• Position: Foreign Investment in Real Property Tax Act of 1980

Under certain realistic scenarios, shareholders of a U.S. company with a foreign subsidiary who do not correctly structure their situation with an exit plan in mind may find themselves paying three levels of U.S. tax on a foreign corporation's profits due to the interplay between the branch profits tax and the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA). Fortunately, with proper tax planning, there are ways to avoid this draconian tax treatment.

The threat of triple taxation looms when a parent U.S. company (USCo) conducts international activities through its wholly owned foreign corporation (FC). If the FC is based in a country with no U.S. income tax treaty and finds itself with excess cash, it must give careful consideration before lending any excess cash back to U.S. investors, even if they are unrelated. If such loans have U.S. real property or U.S. real property holding companies as collateral, a loan default may leave the FC, directly or indirectly, holding U.S. real property and subject to income taxes under FIRPTA.

FIRPTA rules characterize the disposition of U.S. real property by foreign persons as gain effectively connected with a U.S. wade or business (Sec. 897). With such characterization, the eventual income from the sale of U.S. real property would be subject to U.S. income tax. FIRPTA provisions indirectly cause a second layer of taxation on the gains because when those gains are treated as gains from a U.S. effectively connected wade or business, the FC will be deemed to have a branch in the United States and will therefore be subject to the branch profits tax (BPT).

Before the passage of the BPT provisions under Sec. 884 in 1986, foreign corporations were able to avoid the dividend tax. However, to ensure that the United States could collect this tax, the BPT rules were enacted. The BPT is assessed at 30% of any non-U.S, treaty country FC's U.S. effectively connected income (ECI), with adjustments for increases or decreases in U.S. net equity of the FC's U.S. branch. Basically, unless the FC reinvests its U.S. effectively connected earnings back into U.S. assets, it will be subject to the BPT. This dividend-equivalent tax represents the second layer of taxation on a potential sale of the U.S. real property.

Example: X, an FC, is owned by C, a U.S. company, and owns U.S. real property, which it received when one of its loans defaulted. X has decided to sell the real property and transfer the funds as...