Treasury and IRS Release Final Regulations on Global Intangible Low-Taxed Income Regime: Final Regulations Provide Additional Detail While Leaving Certain Issues Open to Future Guidance

Sullivan & Cromwell LLP - July 8, 2019

On June 21, 2019, the Department of the Treasury and the Internal Revenue Service published final regulations (the “Final Regulations”) in the Federal Register addressing how United States shareholders of foreign corporations should include global intangible low-taxed income (“GILTI”) in gross income. The Final Regulations follow proposed regulations that were published on October 10, 2018 in the Federal Register. The GILTI regime is intended to prevent taxpayers from avoiding U.S. taxation by shifting profits from intangible assets into low-tax foreign jurisdictions. Its rules are drafted to accomplish this intent through a series of formulae designed to approximate a taxpayer’s income that is due to such intangible assets. The technical nature of these rules is reflected in the extensive guidance provided in the Final Regulations. In this memorandum, we focus on several significant items set forth in the Final Regulations, including: (1) the expansive definition of “interest”, which is used in the GILTI regime as an input in formulae to derive a taxpayer’s GILTI inclusion; (2) the anticipation of further guidance on how a controlled foreign corporation (“CFC”) should calculate its gross income and allowable deductions against that gross income for GILTI purposes; (3) a potentially broad anti-abuse rule that applies in determining a taxpayer’s pro rata share of CFC income and (4) the effect of property transfers to related parties by certain CFCs that are fiscal year taxpayers.