Ch. 2 – Tax Sourcing Rules Income & Deductions       p.76

IRC §§861 - 865 (& tax common law?).

Multiple objectives of the sourcing rules:

1)  Foreign taxpayers - identify their income within the U.S. income tax sphere.

2)  U.S. taxpayers - determine whether the  “first right to tax” belongs to the foreign jurisdiction (then, ascertain foreign country income tax & the availability of the U.S. foreign tax credit).

Interest income sourcing
p.78

§§861(a)(1) & 862(a)(1)

1)  Source of interest income depends upon the residence of the payor.  Residence when?

2) Foreign corp. - U.S. branch interest as U.S.

3) U.S. corp. foreign branch interest paid is foreign.

4) Previously: Flow through to recipients of foreign source characterization if a U.S. corp had 80 percent of its income derived from a foreign source.  §861(c)(1). Proportionate allocation under a related person rule - §861(c)(2). 

Dividends sourcing    
p.79

Dividends received from a U.S. corporation has a U.S. source - §861(a)(2).

Dividends received from a foreign corporation is foreign-source income - §862(a)(2).

However, dividends from a foreign corporation are treated as proportionally U.S. sourced if 25 percent or greater of the foreign corp’s gross income was ECI - USTB. §861(a)(2)(B) (on three year base period). Based on “gross” rather than “net” from each source.

Rents & Royalties
Income sourcing          p.79

Source of rental and royalty income is determined by the place where property is physically located or used – both tangible & intangible property.

§861(a)(4) or §862(a)(4).

See Rev. Rul. 68-443 re trademark licensing income - place of sale of trademarked goods is not relevant for determining the tax sourcing of royalty income – for ultimate use outside the U.S. – i.e., foreign trademarks.

Query:  Is all income from sales attributable to the trademark, or is some attributable to the manufacture of the physical goods?

Compensation for Personal Services - Income Sourcing

Income is sourced where the services are performed - §§861(a)(3) & 862(a)(3). 

Rev. Rul. 60-55 - sales activity generating a commission occurs outside the U.S. & produces foreign source income.

Foreign corp. receives commissions for sales/representation services provided in foreign countries even though shipment of the purchased goods from the U.S.

Query: Where are the services performed? & not where the sales are legally concluded.

De Minimis Compensation Sourcing Rule              p.83

De minimis exception in U.S. - §861(a)(3):

1)                 Working in U.S. for less than 90 days

2)   compensation does not exceed $3,000

       (a “cliff provision”), &

3)    an expense of a foreign employer.

This sourcing rule effectively provides a tax exemption.

Compensation for Personal Services – Allocation Issue

An allocation issue arises when services are performed both within and outside the United States.

What is an appropriate allocation approach?

            Stemkowski case - p. 83 (include also training camp time in allocation formula, but not the off-season period).

Regulations – finalized in 2005 (p. 88);  allocate income on basis of time, not facts & circumstances.  Special rules for fringe benefits and hardship duty pay.

Further Compensation Issues

1)  Compensation or royalty income?

      Boulez case – p.89 

                     No participation interest in the copyright.

2)   Signing bonus (payment for what?).

3)                  Non-compete payment, including exclusive sign-on fee;  where does a person not compete? Korfund case - p. 95.

4)                  Sign-on agreement (a no future services agreement) - Rev. Rul. 74-108, p.96;

                     Allocation based on where right to act forfeited.

Compensation in Multiple Jurisdictions               p.99

Example: Employee earns compensation in the

U.S. & a foreign jurisdiction.  Employer contributes

to a qualified deferred compensation account on

behalf of the employee.

What characterization of payments when

retirement income distributions occur?

See Rev. Rul. 79-388 (p. 99) re proportionate

allocation.

Sale of Real Property
p.99

Income realized on sale is geographically sourced where the real property is  located.  

See §861(a)(5) & §862(a)(5).

What is real property? Land, buildings, oil & gas property?  Severed crops?

Whose rules define whether the property is “real property” for this purpose?   State law?  Federal tax law? Remember the Bosch (estate tax/“proper regard”) case?

Income from Sale of Personal Property   §865                              p.99

1)        Inventory - §§861(a)(6) & 865(b)

    “passage of title” test

    but,  Reg. §1.861-7(c) re tax avoidance.

            A.P. Green Export Co. - p.100

            title passage was structured to occur at the destination outside U.S. – clear intent noted.

 2) Noninventory personal property is deemed sold at the residence location.  Code §865(a).

   Source rule is applicable to both gains & losses.

Special Personal Property Sourcing Rules           p.106 

Depreciation - Code §865(c) – income from sale of depreciated property is sourced to the country where the depreciation expense has been claimed. Precluding (1) deduction claimed in the U.S., and (2) income on disposition derived outside the U.S.

Intangible Property Sale - p.106   §865(d).

            1)  Sale for fixed amount

            2)  Sale for a contingent payment. Cf.,  royalties (not a property sale;  i.e., ordinary income).

Note:  goodwill (where located) - §865(d)(3).

Sourcing Rules for Special Entities                      p.108

Sale of stock in a foreign “affiliate” corporation - Code §865(f), foreign country & foreign business.

            Foreign corp. as “affiliate” - 80% ownership.

            Foreign source income (subject to conditions).

Personal property sales through (1) a foreign branch - §865(e)(1); if a 10% tax rate there.

    or (2) a U.S. branch - Code §865(e)(2).

            Income sourcing at the branch location.

Sale of stock of a U.S. real property holding corporation - Code §861(a)(5).  U.S. source income.  See (later) FIRPTA rules.

Manufacture & Sale of Inventory Property     p.109

Code §863(b)(2) allocation required if goods are:

     (1) - (a) manufactured outside the U.S. and (b) sold in the U.S., or

     (2) - (a) manufactured in the U.S. and (b) sold outside the U.S.

What allocation approach is appropriate?

            1)  formulary approach?   50-50 method?

            2)  independent factory price (IFP) (elective); must demonstrate sales to independent distributors.

Sale of Intangible Property, Royalty or Compensation?

P. 111-  Sale of intangible property for a royalty - Code §865(d)(1) – royalty sourcing rules – fixed or contingent payments?

Rev. Rul. 84-78, p.112 - Foreign source income?

   Foreign corporation pays royalties for the foreign country live broadcast of a U.S. boxing match.  Foreign source royalty income is realized.  Not income from the sale of personal property. See §862(a)(4).  Sale is not for the entire life of the property and, therefore, is rent (royalty).

Computer Programs  
p. 114

Does a sale or license of computer programs occur when electronically delivering software?

A right to make copies (& sell) or merely a right to use a computer program?

Reg. §1.861-18 situs choices:  (1) sale or exchange (property sale?), or (2) lease generating rental income (location), or (3) inventory sale (title passage)?

If leasing/licensing – what is the place where the property is being used?

Further  Statutory Sourcing Rules                         p.116

1)  Code §863(c) - vessels and aircraft in international transportation & U.S. contact -

            50% US and 50% foreign source income.

2)  Code §863(d) - space and ocean activity as U.S. source for U.S. citizen/U.S. corporation.

3)  Code §863(e) - international communications:

            1)  U.S. person - 50-50 sourcing split.

            2)  Foreign person - all foreign source (unless attributable to a U.S. office).

Nonstatutory Sourcing Rules (i.e., “Common Law”)

Scholarships, Prizes and Awards.  p.117

   is usually sourced to the jurisdiction of the payor (similar treatment as interest income), rather than the status of the recipient.  See Reg. §1.863-1(d)

But, not equivalent to compensation? 

What if services are to be rendered?

But, if scholarship (1) from a U.S. person to (2) a foreign person to (3) study outside the U.S., then foreign source income, & not sourced to payor.

Nonstatutory Sourcing Rules (i.e., “Common Law”)

Alimony. IRC §71 gross income inclusion?      p.118

   Situs of the payor determines the source (similar to treatment of an interest payment).

Estate - Rev. Rul. 69-108  (§71 alimony?)  p.118

            Required continuing periodic payment is being made by an ancillary administrator in the U.S.  However, the debt/payment is treated as sourced to the (foreign) estate of the decedent paying the alimony;  not to the ancillary U.S. estate.

§71 alimony must end at death of the payee spouse.

Banking & Financial Services (or Credit?)  p.120

Bank of America case                           p.120

1. Acceptance commissions (p.124):  similar to a loan transaction - credit risk of the foreign bank is assumed by the U.S. bank;  sourced as if an interest payment by foreign bank.  Foreign source realized by BofA.  See market for “acceptances.”

2. Confirmation commissions (p.126) - credit risk assumed by BofA; foreign sourced (as if interest).

3. Negotiation commissions (p.127) - personal services income.   U.S. source.

Guaranty Fees           p.128
Subsidiary to Parent Corp.

Container Corp., Tax Court (2010)                    p.128

U.S. subsidiary pays fee to foreign (Mexican) parent corporation for guaranteeing the subsidiary’s debts to unrelated U.S. lenders.

Interest equivalent (sourced to U.S. payor, & withholding at source)) or for services (sourced to foreign country where provided)? Held: Services

See Code §861(a)(9) (2010) – U.S. source if guaranteed debt of the U.S. taxpayer;  similar U.S. source if debt of a USTB of a foreign party.

Problem 1                        p.128
Interest Characterization

U.S. Corp borrows 10 million from foreign bank – 85% of U.S. corp's income is (a) (i) from sources outside the United States and (ii) attributable to the active conduct of business in foreign country,  and (b) the remaining 15% is from U.S. sources.

Here: Interest paid by U.S. corporation is U.S.

            Prior: 100% foreign source income.  Code §861(a)(1)(A) repealed (2010), but grandfathering.

Related person own all stock - % allocation was then required if a 20% or greater ownership by payee.

Problem 2                        p.129
Foreign Corp Branch in U.S.

35% of foreign corporation’s US branch income is effectively connected with USTB.

Dividend is paid to the sole shareholder of the foreign corp., i.e., a same country (France) foreign corporation holding company.

§861(a)(2)(B) - a portion (35%) of the dividend is  treated as U.S. source (since over 25% minimum).

Withholding (possible lower France-U.S. tax treaty rate?); but, eliminated when the branch profits tax applies. §884(e)(3).

Problem 3                        p.129
Compensation from Services

U.S. corporation performed services under a contract with a foreign corporation.

Source of corporation’s compensation is where the services are performed.  §861(a)(3).

How allocate in this situation? The most favorable calculation to the taxpayer would be based on the value (50/50) of the services income in the two locations.  But, see  Reg. §861-4(b)(2) concerning a time basis allocation  (50/75 of $100,000 as US) as ordinarily being required.

Problem 4                        p.129
Computer rental income

Cosmos (US) (i) manufactures and (ii) leases computers. Cosmos foreign branch office (France) is engaged in marketing.  Foreign branch (France) leases a computer to same country (France) foreign branch of third Country (German) company.

Source of the rental income?  The computer is used in the foreign country and is foreign source income. §862(a)(4).  Location of the use controls.

U.S. status of Cosmos & the lessee are not relevant.

Problem 5                        p.129
U.S. Patent Licensing

Foreign Corp (Panama) owns a U.S. patent.

Nonexclusive license is granted to Bermuda  corporation & pays 3% royalties to Pan. Corp.

What is the source of royalties? U.S. (a U.S. patent).

U.S. source: how is the 30% tax withholding at source enforced against Bermuda Corp?  Where is manufacturing?  Enforce against goods in U.S.?

            Enforce against Panama’s asset, i.e., U.S. patent?

What if a sub-licensing arrangement is implemented by Bermuda Corp. to another foreign corp.? This presents the “cascading royalty” issue.

Problem 6                        p.129
§§865(a) & 861(a)(6) & 863(b)

1) Purchase occurs in U.S. and sale of inventory outside U.S. - §865(b), §862(a)(6) & §1.861-7(c).

2)  Manufacture and sale of inventory -  §863(b)(2) requires an allocation.  What allocation method to use - Code §863(b)(2)?   50/50 or IFP method?

3)  Sale of non-inventory item (computer) by U.S. sub. to foreign parent corporation - §865(a) - sourced at residence (US) since not inventory - unless prior depreciation (but, no depreciation here if an immediate resale) - §865(c).

Problem 7                        p.129
Foreign Patent Sold

Sale by U.S. corp. of foreign patent rights to foreign corp. for a lump sum amount paid in installments.

Sale for fixed price would be U.S. source under the general rule of §865(a), i.e., residence. Except -depreciation override rule (200 of 800 gain) - §865(d)(1)(A). This 200 income is foreign source. 

If % payment - royalty sourcing rule is applicable - §865(d)(1)(B) & foreign source (foreign law).

Sale of both trademark & goodwill? Is the trademark separate (& sourced to the seller’s residence)? Goodwill as foreign - §865(d)(3).

Problem 8                  p.130
Multiple Foreign Patents

Patent licensing branch in Germany. $800,000 gain from the sale of the German patent to the German purchaser is exempt from German tax.

$200,000 is sourced to Germany under Code §865(c) since reflecting amortization/depreciation deductions against German-source income.

Remainder (600) is U.S. source,  i.e., appears to be foreign source income under §865(e)(1)(A), but,  §865(e)(1)(B) applies – the foreign source rule does not apply if the income is not subject to at least a 10 percent foreign tax.    continued

Problem 8, cont.        p.130
Multiple Foreign Patents

If the patent were inventory property: the “title passage” rule would apply;  all the gain would be foreign source income.  §865(b).

Sale for a “royalty-like price”?  Source is determined by the royalty source rules.  §865(d)(1)(B).  Therefore:  German patent rights and foreign source income. §862(a)(4).

Problem 9                p.130
Depreciation Deduction

U.S. corp. purchases trucks for 400x used to transport inventory in U.S.  Expenses, including 200x depreciation, previously used to reduce U.S. source income (& tax basis).

Sale of trucks for 410x (producing profit of 210x), with title passing in the foreign country (Peru).

200x as U.S. source - §865(c)(1) - U.S. depreciation.

10x from foreign country inventory (?) sale - §865(c)(2) - foreign source since a foreign based sale.  §862(a)(6).

Problem 10                      p.130
Sale of Foreign Affiliate Stock

§865(f) – a special source rule for the gain on the sale of the stock of a foreign (German) affiliate.

Meets the §865(f) test - engaged in the active conduct of a business. Gain as foreign source?

But, more than 50% of sub’s gross income from the prior three years was derived from active conduct of business in another foreign country (France).  Tax advice:  Close (& negotiate) the deal in France?  §865(f)(3).

Problem 11                      p.130
ATM Service Fee & BofA Case

U.S. citizen/U.S. resident (?) uses U.S. bank ATM card in Paris at a Paris bank.

What statutory rule governs determining the source of the service fee?  None.  See BofA case?

Service fee?- earned where the service is rendered – i.e., foreign source.  Or: is this a loan of credit? - then (as interest) sourced back to the New York bank which made the loan?

No statutory sourcing rule? But, impact of §861(a)(9) – re the status of a guarantee fee?

Problem 12                      p.130
Mfg & Sales Allocation

Production in the U.S. and some sales through a branch in Europe.  What is the division of the $200 income between the production and sale of the electronic toys - divided between U.S. and foreign sources?

1)  50-50 approach ($100 of $200 profit)? or

2)  IFP ($250 base less $100 cost; $150 U.S. source –for manufacturing; $50 foreign)? Not useful.

3)  Independent sale for $150; only $50 U.S. mfg. income (and $150 foreign sales income). IFP-yes.

Problem 13                      p.131
Computer Program

Copyright in a computer program.  Distributed under a “shrink wrap license.”

1)  Really a “sale” of a copyrighted article?

Reg. §1.861-18(h), Example 1.  50-50 method

applies - Divide between the mfg. & the sales

functions.  Title passage where (re sales income)?

2) Electronic transmission - Use the 50-50 allocation method. Reg. §1.861-18(g)(2). Manufacturing income 50% in the U.S.  Foreign source sale income since delivered at the destination computer? Reg. §1.861-18(g)(2).  Where actually delivered?

Problem 14                      p.131
NRA Book Author

Nonresident alien writing a book for the U.S. market. What is author’s “property interest”?

1)  Compensation income - where was the book written? §861(a)(3) & 862(a)(3).

2)  U.S. source royalty income - §865(d)(1)(B) & §861(a)(4).

3)  Fixed price - sale of the intangible for a fixed price - source to the NRA’s author’s foreign residence - §865(a) & §865(d)(1)(A).

Sourcing Rules Applicable to Deductions            p.131

Code §861(b) & §862(b) require allocation of deductions (expenses, interest, R&D, stewardship expense, etc.).

General rules concerning allocation of deductions:

            1)  Allocation based on factual attribution to the particular class of income.

            2)  Apportionment where not “definitely related to gross income.”

See Reg. §1.861-8.

Allocation of Interest Expense                     p.134

Interest expense allocation:

     1)  money is fungible and interest should be allocated to all assets.  Allocation made on basis of asset value rather than on gross income.  Code §864(e)(2).  To preclude allocating borrowing to particular entity in a related group.

     2)  exception is made for non-recourse debt.

     3)  additional exception for integrated financial transactions.

Problem 1                   p.137  Interest Expense

Interest expense allocation formula (to U.S.):

1)  Relative asset values:

      6/10 times 200,000 = 120,000 U.S. source expense.

2)  Tax book values:

                     4/5 times 200,000 = 160,000 U.S. source expense.

Problem 2  Interest Expense Allocation    p.137

[to come]

Allocation of R&D Expense
p.137

Tax planning objective - allocate maximum expense against domestic income.

Under Reg. §1.861-17 allocation of R&D cost is based on product categories.

Specific allocation of these expenses incurred  to satisfy local country legal requirements.

50% allocated to place of R&D activity.

50% allocated under “sales method” (comparing foreign sales to total sales in product category).

Optional gross income rather than sales method.