[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5793 Introduced in House (IH)]
111th CONGRESS
2d Session
H. R. 5793
To amend the Internal Revenue Code of 1986 to close foreign tax
loopholes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 20, 2010
Mr. Garamendi (for himself, Mr. McDermott, Mrs. Napolitano, Mr.
DeFazio, Mr. Hare, Ms. Sutton, Mr. Schauer, Mr. Hinchey, Ms. Kaptur,
Mr. Kagen, and Mr. Perlmutter) introduced the following bill; which was
referred to the Committee on Ways and Means
_______________________________________________________________________
A BILL
To amend the Internal Revenue Code of 1986 to close foreign tax
loopholes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; AMENDMENT OF 1986 CODE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Close Foreign Tax
Loopholes: Make it in America Act of 2010''.
(b) Amendment of 1986 Code.--Except as otherwise expressly
provided, whenever in this Act an amendment or repeal is expressed in
terms of an amendment to, or repeal of, a section or other provision,
the reference shall be considered to be made to a section or other
provision of the Internal Revenue Code of 1986.
(c) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; amendment of 1986 code; table of contents.
Sec. 2. Rules to prevent splitting foreign tax credits from the income
to which they relate.
Sec. 3. Denial of foreign tax credit with respect to foreign income not
subject to United States taxation by reason
of covered asset acquisitions.
Sec. 4. Separate application of foreign tax credit limitation, etc., to
items resourced under treaties.
Sec. 5. Limitation on the amount of foreign taxes deemed paid with
respect to section 956 inclusions.
Sec. 6. Special rule with respect to certain redemptions by foreign
subsidiaries.
Sec. 7. Modification of affiliation rules for purposes of rules
allocating interest expense.
Sec. 8. Termination of special rules for interest and dividends
received from persons meeting the 80-
percent foreign business requirements.
Sec. 9. Source rules for income on guarantees.
Sec. 10. Limitation on extension of statute of limitations for failure
to notify Secretary of certain foreign
transfers.
SEC. 2. RULES TO PREVENT SPLITTING FOREIGN TAX CREDITS FROM THE INCOME
TO WHICH THEY RELATE.
(a) In General.--Subpart A of part III of subchapter N of chapter 1
is amended by adding at the end the following new section:
``SEC. 909. SUSPENSION OF TAXES AND CREDITS UNTIL RELATED INCOME TAKEN
INTO ACCOUNT.
``(a) In General.--If there is a foreign tax credit splitting event
with respect to a foreign income tax paid or accrued by the taxpayer,
such tax shall not be taken into account for purposes of this title
before the taxable year in which the related income is taken into
account under this chapter by the taxpayer.
``(b) Special Rules With Respect to Section 902 Corporations.--If
there is a foreign tax credit splitting event with respect to a foreign
income tax paid or accrued by a section 902 corporation, such tax shall
not be taken into account--
``(1) for purposes of section 902 or 960, or
``(2) for purposes of determining earnings and profits
under section 964(a),
before the taxable year in which the related income is taken into
account under this chapter by such section 902 corporation or a
domestic corporation which meets the ownership requirements of
subsection (a) or (b) of section 902 with respect to such section 902
corporation.
``(c) Special Rules.--For purposes of this section--
``(1) Application to partnerships, etc.--In the case of a
partnership, subsections (a) and (b) shall be applied at the
partner level. Except as otherwise provided by the Secretary, a
rule similar to the rule of the preceding sentence shall apply
in the case of any S corporation or trust.
``(2) Treatment of foreign taxes after suspension.--In the
case of any foreign income tax not taken into account by reason
of subsection (a) or (b), except as otherwise provided by the
Secretary, such tax shall be so taken into account in the
taxable year referred to in such subsection (other than for
purposes of section 986(a)) as a foreign income tax paid or
accrued in such taxable year.
``(d) Definitions.--For purposes of this section--
``(1) Foreign tax credit splitting event.--There is a
foreign tax credit splitting event with respect to a foreign
income tax if the related income is (or will be) taken into
account under this chapter by a covered person.
``(2) Foreign income tax.--The term `foreign income tax'
means any income, war profits, or excess profits tax paid or
accrued to any foreign country or to any possession of the
United States.
``(3) Related income.--The term `related income' means,
with respect to any portion of any foreign income tax, the
income (or, as appropriate, earnings and profits) to which such
portion of foreign income tax relates.
``(4) Covered person.--The term `covered person' means,
with respect to any person who pays or accrues a foreign income
tax (hereafter in this paragraph referred to as the `payor')--
``(A) any entity in which the payor holds, directly
or indirectly, at least a 10 percent ownership interest
(determined by vote or value),
``(B) any person which holds, directly or
indirectly, at least a 10 percent ownership interest
(determined by vote or value) in the payor,
``(C) any person which bears a relationship to the
payor described in section 267(b) or 707(b), and
``(D) any other person specified by the Secretary
for purposes of this paragraph.
``(5) Section 902 corporation.--The term `section 902
corporation' means any foreign corporation with respect to
which one or more domestic corporations meets the ownership
requirements of subsection (a) or (b) of section 902.
``(e) Regulations.--The Secretary may issue such regulations or
other guidance as is necessary or appropriate to carry out the purposes
of this section, including regulations or other guidance which
provides--
``(1) appropriate exceptions from the provisions of this
section, and
``(2) for the proper application of this section with
respect to hybrid instruments.''.
(b) Clerical Amendment.--The table of sections for subpart A of
part III of subchapter N of chapter 1 is amended by adding at the end
the following new item:
``Sec. 909. Suspension of taxes and credits until related income taken
into account.''.
(c) Effective Date.--The amendments made by this section shall
apply to--
(1) foreign income taxes (as defined in section 909(d) of
the Internal Revenue Code of 1986, as added by this section)
paid or accrued after May 20, 2010; and
(2) foreign income taxes (as so defined) paid or accrued by
a section 902 corporation (as so defined) on or before such
date (and not deemed paid under section 902(a) or 960 of such
Code on or before such date), but only for purposes of applying
sections 902 and 960 with respect to periods after such date.
Section 909(b)(2) of the Internal Revenue Code of 1986, as added by
this section, shall not apply to foreign income taxes described in
paragraph (2).
SEC. 3. DENIAL OF FOREIGN TAX CREDIT WITH RESPECT TO FOREIGN INCOME NOT
SUBJECT TO UNITED STATES TAXATION BY REASON OF COVERED
ASSET ACQUISITIONS.
(a) In General.--Section 901 is amended by redesignating subsection
(m) as subsection (n) and by inserting after subsection (l) the
following new subsection:
``(m) Denial of Foreign Tax Credit With Respect to Foreign Income
Not Subject to United States Taxation by Reason of Covered Asset
Acquisitions.--
``(1) In general.--In the case of a covered asset
acquisition, the disqualified portion of any foreign income tax
determined with respect to the income or gain attributable to
the relevant foreign assets--
``(A) shall not be taken into account in
determining the credit allowed under subsection (a),
and
``(B) in the case of a foreign income tax paid by a
section 902 corporation (as defined in section
909(d)(5)), shall not be taken into account for
purposes of section 902 or 960.
``(2) Covered asset acquisition.--For purposes of this
section, the term `covered asset acquisition' means--
``(A) a qualified stock purchase (as defined in
section 338(d)(3)) to which section 338(a) applies,
``(B) any transaction which--
``(i) is treated as an acquisition of
assets for purposes of this chapter, and
``(ii) is treated as the acquisition of
stock of a corporation (or is disregarded) for
purposes of the foreign income taxes of the
relevant jurisdiction,
``(C) any acquisition of an interest in a
partnership which has an election in effect under
section 754, and
``(D) to the extent provided by the Secretary, any
other similar transaction.
``(3) Disqualified portion.--For purposes of this section--
``(A) In general.--The term `disqualified portion'
means, with respect to any covered asset acquisition,
for any taxable year, the ratio (expressed as a
percentage) of--
``(i) the aggregate basis differences (but
not below zero) allocable to such taxable year
under subparagraph (B) with respect to all
relevant foreign assets, divided by
``(ii) the income on which the foreign
income tax referred to in paragraph (1) is
determined (or, if the taxpayer fails to
substantiate such income to the satisfaction of
the Secretary, such income shall be determined
by dividing the amount of such foreign income
tax by the highest marginal tax rate applicable
to such income in the relevant jurisdiction).
``(B) Allocation of basis difference.--For purposes
of subparagraph (A)(i)--
``(i) In general.--The basis difference
with respect to any relevant foreign asset
shall be allocated to taxable years using the
applicable cost recovery method under this
chapter.
``(ii) Special rule for disposition of
assets.--Except as otherwise provided by the
Secretary, in the case of the disposition of
any relevant foreign asset--
``(I) the basis difference
allocated to the taxable year which
includes the date of such disposition
shall be the excess of the basis
difference with respect to such asset
over the aggregate basis difference
with respect to such asset which has
been allocated under clause (i) to all
prior taxable years, and
``(II) no basis difference with
respect to such asset shall be
allocated under clause (i) to any
taxable year thereafter.
``(C) Basis difference.--
``(i) In general.--The term `basis
difference' means, with respect to any relevant
foreign asset, the excess of--
``(I) the adjusted basis of such
asset immediately after the covered
asset acquisition, over
``(II) the adjusted basis of such
asset immediately before the covered
asset acquisition.
``(ii) Built-in loss assets.--In the case
of a relevant foreign asset with respect to
which the amount described in clause (i)(II)
exceeds the amount described in clause (i)(I),
such excess shall be taken into account under
this subsection as a basis difference of a
negative amount.
``(iii) Special rule for section 338
elections.--In the case of a covered asset
acquisition described in paragraph (2)(A), the
covered asset acquisition shall be treated for
purposes of this subparagraph as occurring at
the close of the acquisition date (as defined
in section 338(h)(2)).
``(4) Relevant foreign assets.--For purposes of this
section, the term `relevant foreign asset' means, with respect
to any covered asset acquisition, any asset (including any
goodwill, going concern value, or other intangible) with
respect to such acquisition if income, deduction, gain, or loss
attributable to such asset is taken into account in determining
the foreign income tax referred to in paragraph (1).
``(5) Foreign income tax.--For purposes of this section,
the term `foreign income tax' means any income, war profits, or
excess profits tax paid or accrued to any foreign country or to
any possession of the United States.
``(6) Taxes allowed as a deduction, etc.--Sections 275 and
78 shall not apply to any tax which is not allowable as a
credit under subsection (a) by reason of this subsection.
``(7) Regulations.--The Secretary may issue such
regulations or other guidance as is necessary or appropriate to
carry out the purposes of this subsection, including to exempt
from the application of this subsection certain covered asset
acquisitions, and relevant foreign assets with respect to which
the basis difference is de minimis.''.
(b) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall apply to covered asset
acquisitions (as defined in section 901(m)(2) of the Internal
Revenue Code of 1986, as added by this section) after--
(A) May 20, 2010, if the transferor and the
transferee are related, and
(B) the date of the enactment of this Act in any
other case.
(2) Transition rule.--The amendments made by this section
shall not apply to any covered asset acquisition (as so
defined) with respect to which the transferor and the
transferee are not related if such acquisition is--
(A) made pursuant to a written agreement which was
binding on May 20, 2010, and at all times thereafter,
(B) described in a ruling request submitted to the
Internal Revenue Service on or before such date, or
(C) described on or before such date in a public
announcement or in a filing with the Securities and
Exchange Commission.
(3) Related persons.--For purposes of this subsection, a
person shall be treated as related to another person if the
relationship between such persons is described in section 267
or 707(b) of the Internal Revenue Code of 1986.
SEC. 4. SEPARATE APPLICATION OF FOREIGN TAX CREDIT LIMITATION, ETC., TO
ITEMS RESOURCED UNDER TREATIES.
(a) In General.--Subsection (d) of section 904 is amended by
redesignating paragraph (6) as paragraph (7) and by inserting after
paragraph (5) the following new paragraph:
``(6) Separate application to items resourced under
treaties.--
``(A) In general.--If--
``(i) without regard to any treaty
obligation of the United States, any item of
income would be treated as derived from sources
within the United States,
``(ii) under a treaty obligation of the
United States, such item would be treated as
arising from sources outside the United States,
and
``(iii) the taxpayer chooses the benefits
of such treaty obligation,
subsections (a), (b), and (c) of this section and
sections 902, 907, and 960 shall be applied separately
with respect to each such item.
``(B) Coordination with other provisions.--This
paragraph shall not apply to any item of income to
which subsection (h)(10) or section 865(h) applies.
``(C) Regulations.--The Secretary may issue such
regulations or other guidance as is necessary or
appropriate to carry out the purposes of this
paragraph, including regulations or other guidance
which provides that related items of income may be
aggregated for purposes of this paragraph.''.
(b) Effective Date.--The amendments made by this section shall
apply to taxable years beginning after the date of the enactment of
this Act.
SEC. 5. LIMITATION ON THE AMOUNT OF FOREIGN TAXES DEEMED PAID WITH
RESPECT TO SECTION 956 INCLUSIONS.
(a) In General.--Section 960 is amended by adding at the end the
following new subsection:
``(c) Limitation With Respect to Section 956 Inclusions.--
``(1) In general.--If there is included under section
951(a)(1)(B) in the gross income of a domestic corporation any
amount attributable to the earnings and profits of a foreign
corporation which is a member of a qualified group (as defined
in section 902(b)) with respect to the domestic corporation,
the amount of any foreign income taxes deemed to have been paid
during the taxable year by such domestic corporation under
section 902 by reason of subsection (a) with respect to such
inclusion in gross income shall not exceed the amount of the
foreign income taxes which would have been deemed to have been
paid during the taxable year by such domestic corporation if
cash in an amount equal to the amount of such inclusion in
gross income were distributed as a series of distributions
(determined without regard to any foreign taxes which would be
imposed on an actual distribution) through the chain of
ownership which begins with such foreign corporation and ends
with such domestic corporation.
``(2) Authority to prevent abuse.--The Secretary shall
issue such regulations or other guidance as is necessary or
appropriate to carry out the purposes of this subsection,
including regulations or other guidance which prevent the
inappropriate use of the foreign corporation's foreign income
taxes not deemed paid by reason of paragraph (1).''.
(b) Effective Date.--The amendment made by this section shall apply
to acquisitions of United States property (as defined in section 956(c)
of the Internal Revenue Code of 1986) after May 20, 2010.
SEC. 6. SPECIAL RULE WITH RESPECT TO CERTAIN REDEMPTIONS BY FOREIGN
SUBSIDIARIES.
(a) In General.--Paragraph (5) of section 304(b) is amended by
redesignating subparagraph (B) as subparagraph (C) and by inserting
after subparagraph (A) the following new subparagraph:
``(B) Special rule in case of foreign acquiring
corporation.--In the case of any acquisition to which
subsection (a) applies in which the acquiring
corporation is a foreign corporation, no earnings and
profits shall be taken into account under paragraph
(2)(A) (and subparagraph (A) shall not apply) if more
than 50 percent of the dividends arising from such
acquisition (determined without regard to this
subparagraph) would not--
``(i) be subject to tax under this chapter
for the taxable year in which the dividends
arise, or
``(ii) be includible in the earnings and
profits of a controlled foreign corporation (as
defined in section 957 and without regard to
section 953(c)).''.
(b) Effective Date.--The amendments made by this section shall
apply to acquisitions after May 20, 2010.
SEC. 7. MODIFICATION OF AFFILIATION RULES FOR PURPOSES OF RULES
ALLOCATING INTEREST EXPENSE.
(a) In General.--Subparagraph (A) of section 864(e)(5) is amended
by adding at the end the following: ``Notwithstanding the preceding
sentence, a foreign corporation shall be treated as a member of the
affiliated group if--
``(i) more than 50 percent of the gross
income of such foreign corporation for the
taxable year is effectively connected with the
conduct of a trade or business within the
United States, and
``(ii) at least 80 percent of either the
vote or value of all outstanding stock of such
foreign corporation is owned directly or
indirectly by members of the affiliated group
(determined with regard to this sentence).''.
(b) Effective Date.--The amendment made by this section shall apply
to taxable years beginning after the date of the enactment of this Act.
SEC. 8. TERMINATION OF SPECIAL RULES FOR INTEREST AND DIVIDENDS
RECEIVED FROM PERSONS MEETING THE 80-PERCENT FOREIGN
BUSINESS REQUIREMENTS.
(a) In General.--Paragraph (1) of section 861(a) is amended by
striking subparagraph (A) and by redesignating subparagraphs (B) and
(C) as subparagraphs (A) and (B), respectively.
(b) Grandfather Rule With Respect to Withholding on Interest and
Dividends Received From Persons Meeting the 80-Percent Foreign Business
Requirements.--
(1) In general.--Subparagraph (B) of section 871(i)(2) is
amended to read as follows:
``(B) The active foreign business percentage of--
``(i) any dividend paid by an existing 80/
20 company, and
``(ii) any interest paid by an existing 80/
20 company.''.
(2) Definitions and special rules.--Section 871 is amended
by redesignating subsections (l) and (m) as subsections (m) and
(n), respectively, and by inserting after subsection (k) the
following new subsection:
``(l) Rules Relating to Existing 80/20 Companies.--For purposes of
this subsection and subsection (i)(2)(B)--
``(1) Existing 80/20 company.--
``(A) In general.--The term `existing 80/20
company' means any corporation if--
``(i) such corporation met the 80-percent
foreign business requirements of section
861(c)(1) (as in effect before the enactment of
this subsection) for such corporation's last
taxable year beginning before January 1, 2011,
``(ii) such corporation meets the 80-
percent foreign business requirements of
subparagraph (B) with respect to each taxable
year after the taxable year referred to in
clause (i), and
``(iii) there has not been an addition of a
substantial line of business with respect to
such corporation after the date of the
enactment of this subsection.
``(B) Foreign business requirements.--
``(i) In general.--A corporation meets the
80-percent foreign business requirements of
this subparagraph if it is shown to the
satisfaction of the Secretary that at least 80
percent of the gross income from all sources of
such corporation for the testing period is
active foreign business income.
``(ii) Active foreign business income.--For
purposes of clause (i), the term `active
foreign business income' means gross income
which--
``(I) is derived from sources
outside the United States (as
determined under this subchapter), and
``(II) is attributable to the
active conduct of a trade or business
in a foreign country or possession of
the United States.
``(iii) Testing period.--For purposes of
this subsection, the term `testing period'
means the 3-year period ending with the close
of the taxable year of the corporation
preceding the payment (or such part of such
period as may be applicable). If the
corporation has no gross income for such 3-year
period (or part thereof), the testing period
shall be the taxable year in which the payment
is made.
``(2) Active foreign business percentage.--The term `active
foreign business percentage' means, with respect to any
existing 80/20 company, the percentage which--
``(A) the active foreign business income of such
company for the testing period, is of
``(B) the gross income of such company for the
testing period from all sources.
``(3) Aggregation rules.--For purposes of applying
paragraph (1) (other than subparagraph (A)(i) thereof) and
paragraph (2)--
``(A) In general.--The corporation referred to in
paragraph (1)(A) and all of such corporation's
subsidiaries shall be treated as one corporation.
``(B) Subsidiaries.--For purposes of subparagraph
(A), the term `subsidiary' means any corporation in
which the corporation referred to in subparagraph (A)
owns (directly or indirectly) stock meeting the
requirements of section 1504(a)(2) (determined by
substituting `50 percent' for `80 percent' each place
it appears and without regard to section 1504(b)(3)).
``(4) Regulations.--The Secretary may issue such
regulations or other guidance as is necessary or appropriate to
carry out the purposes of this section, including regulations
or other guidance which provide for the proper application of
the aggregation rules described in paragraph (3).''.
(c) Conforming Amendments.--
(1) Section 861 is amended by striking subsection (c) and
by redesignating subsections (d), (e), and (f) as subsections
(c), (d), and (e), respectively.
(2) Paragraph (9) of section 904(h) is amended to read as
follows:
``(9) Treatment of certain domestic corporations.--In the
case of any dividend treated as not from sources within the
United States under section 861(a)(2)(A), the corporation
paying such dividend shall be treated for purposes of this
subsection as a United States-owned foreign corporation.''.
(3) Subsection (c) of section 2104 is amended in the last
sentence by striking ``or to a debt obligation of a domestic
corporation'' and all that follows and inserting a period.
(d) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall apply to taxable years
beginning after December 31, 2010.
(2) Grandfather rule for outstanding debt obligations.--
(A) In general.--The amendments made by this
section shall not apply to payments of interest on
obligations issued before the date of the enactment of
this Act.
(B) Exception for related party debt.--Subparagraph
(A) shall not apply to any interest which is payable to
a related person (determined under rules similar to the
rules of section 954(d)(3)).
(C) Significant modifications treated as new
issues.--For purposes of subparagraph (A), a
significant modification of the terms of any obligation
(including any extension of the term of such
obligation) shall be treated as a new issue.
SEC. 9. SOURCE RULES FOR INCOME ON GUARANTEES.
(a) Amounts Sourced Within the United States.--Subsection (a) of
section 861 is amended by adding at the end the following new
paragraph:
``(9) Guarantees.--Amounts--
``(A) received from noncorporate residents or
domestic corporations with respect to guarantees, and
``(B) paid by any foreign person with respect to
guarantees if such amount is connected with income
which is effectively connected (or treated as
effectively connected) with the conduct of a trade or
business in the United States.''.
(b) Amounts Sourced Without the United States.--Subsection (a) of
section 862 is amended by striking ``and'' at the end of paragraph (7),
by striking the period at the end of paragraph (8) and inserting ``;
and'', and by adding at the end the following new paragraph:
``(9) amounts received with respect to guarantees other
than those derived from sources within the United States as
provided in section 861(a)(9).''.
(c) Conforming Amendment.--Clause (ii) of section 864(c)(4)(B) is
amended by striking ``dividends or interest'' and inserting
``dividends, interest, or amounts with respect to guarantees''.
(d) Effective Date.--The amendments made by this section shall
apply to guarantees issued after the date of the enactment of this Act.
SEC. 10. LIMITATION ON EXTENSION OF STATUTE OF LIMITATIONS FOR FAILURE
TO NOTIFY SECRETARY OF CERTAIN FOREIGN TRANSFERS.
(a) In General.--Paragraph (8) of section 6501(c) is amended--
(1) by striking ``In the case of any information'' and
inserting the following:
``(A) In general.--In the case of any
information''; and
(2) by adding at the end the following:
``(B) Application to failures due to reasonable
cause.--If the failure to furnish the information
referred to in subparagraph (A) is due to reasonable
cause and not willful neglect, subparagraph (A) shall
apply only to the item or items related to such
failure.''.
(b) Effective Date.--The amendments made by this section shall take
effect as if included in section 513 of the Hiring Incentives to
Restore Employment Act.
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