Lapas attēli
PDF
ePub

nonaffiliated 10 percent owned corpora- ing the Commissioner's consent. The tions, special rules relating to the con- use of the fair market value method in sideration and characterization of cer- 1988, however, shall operate as a bindtain assets in the apportionment of in- ing election as described in $1.861– terest expense, and to other special 8T(c)2). For rules requiring consistrules pertaining to the apportionment ency in the use of the tax book value or of interest expense. Section 1.861-13T fair market value method, see $1.861contains transition rules limiting the 8T(c)(2). application of the rules of $81.861-8T (iii) A taxpayer electing to apportion through 1.861-12T, which are otherwise its interest expense on the basis of the applicable to taxable years beginning fair market value of its assets must esafter 1986. In the case of an affiliated tablish the fair market value to the group of corporations as defined in satisfaction of the Commissioner. If a § 1.861-11T(d), any reference in $$1.861- taxpayer fails to establish the fair mar8T through 1.861-13T to the “taxpayer" ket value of an asset to the satisfacwith respect to the allocation and ap- tion of the Commissioner, the Commisportionment of interest expense gen

sioner may determine the appropriate erally denotes the entire affiliated asset value. If a taxpayer fails to estabgroup of corporations and not the sepa

lish the value of a substantial portion rate members thereof, unless the con

of its assets to the satisfaction of the text otherwise requires.

Commissioner, the Commissioner may (g) Asset method—(1) In general. (i) require the taxpayer to use the tax Under the asset method, the taxpayer

book value method of apportionment. apportions interest expense to the var

(iv) For rules relating to earnings ious statutory groupings based on the

and profits adjustments by taxpayers average total value of assets within

using the tax book value method for each such grouping for the taxable

the stock in certain nonaffiliated 10 year, as determined under the asset

percent owned corporations, see $1.861– valuation rules of this paragraph (g)(1)

12T(b). and paragraph (g)(2) of this section and

(v) The provisions of this paragraph the asset characterization rules of

(g)(1) may be illustrated by the folparagraph (g)(3) of this section and

lowing examples. $ 1.861-12T. Except to the extent other- Erample 1 --(i) Facts. X, a domestic corwise provided (see, e.g., paragraph poration organized on January 1, 1987, has (d)(1)(iv) of this section), taxpayers deductible interest expense in 1987 in the must apportion interest expense only

amount of $150,000. X apportions its expenses on the basis of asset values and may

according to the tax book value method. The

adjusted basis of X's assets is $3,600,000. not apportion any interest deduction

$3,000,000 of which generate domestic source on the basis of gross income.

income and $600,000 of which generate foreign (ii) A taxpayer may elect to deter- source general limitation income. mine the value of its assets on the (ii) Allocation. No portion of the $150,000 debasis of either the tax book value or duction is directly allocable solely to identithe fair market value of its assets. For

fied property within the meaning of $1.861

10T. Thus, X's deduction for interest is rerules concerning the application of the fair market value method, see para

lated to all its activities and assets.

(iii) Apportionment. X apportions its intergraph (h) of this section. In the case of

est expense as follows: an affiliated group

To foreign source general limitation in(A) The parent of which used the fair come: market value method prior to 1987, or (B) A substantial portion of which

$600,000 $150,000 x

. $25,000 used the fair market value method

$3,600,000 prior to 1987, such a taxpayer may use

To domestic source income: either the fair market value method or the tax book value method for its tax

$300,000 year commencing in 1987 and may use $150,000 x

$125,000 either such method in its tax year com

$3,600,000 mencing in 1988 without regard to

Erample 2 (i) Facts. Assume the same which method was used in its tax year facts as in Example 1, except that X apporcommencing in 1987 and without secur- tions its interest expense on the basis of the

fair market value of its assets. X's total assets have a fair market value of $4,000,000, $3,200,000 of which generate domestic source income and $800,000 of which generate foreign source general limitation income.

(ii) Allocation. No portion of the $150,000 deduction is directly allocable solely to identified property within the meaning of $1.86110T. Thus, X's deduction for interest is related to all its activities and properties.

(iii) Apportionment. If it establishes the fair market value of its assets to the satisfaction of the Commissioner, X may apportion its interest expense as follows:

To foreign source general limitation income:

[blocks in formation]

$3,200,000 $150,000 x

.$120,000 $4,000,000 (2) Asset values-(i) General rule. For purposes of determining the value of assets under this section, an average of values (book or market) within each statutory grouping and the residual gro ng shall be computed for the year on the basis of values of assets at the beginning and end of the year. For the first taxable year beginning after 1986, a taxpayer may choose to determine asset values solely by reference to the year-end value of its assets, provided that all the members of an affiliated group as defined in $1.861-11T(d) make the same choice. Thus, no averaging is required for the first taxable year beginning after 1986. Where a substantial distortion of asset values would result from averaging beginningof-year and year-end values, as might be the case in the event of a major corporate acquisition or disposition, the taxpayer must use a different method of asset valuation that more clearly reflects the average value of assets weighted to reflect the time such assets are held by the taxpayer during the taxable year.

(ii) Special rule for qualified business units of domestic corporations with functional currency other than the U.S. dollar-(A) Tar book value method. In the case of taxpayers using the tax book value method of apportionment, the following rules shall apply to determine the value of the assets of a quali

fied business unit (as defined in section 989(a)) of a domestic corporation with a functional currency other than the dollar.

(1) Profit and loss branch. In the case of a branch for which an election is not effective under $1.985-2T to use the dollar approximate separate transactions method of computing currency gain or loss, the tax book value shall be determined by applying the rules of paragraph (g)(2)(i) and (3) of this section with respect to beginning-of-year and end-of-year tax book value in units of functional currency that are translated into dollars at the end-of-year exchange rate between the functional currency and the U.S. dollar.

Example. At the end of 1987, a profit and loss branch has assets that generate foreign source general limitation income with a tax book value in units of functional currency of 100. At the end of 1987, the unit is worth $1. At the end of 1988, the branch has assets that generate foreign source general limitation income with a tax book value in units of functional currency of 80. At the end of 1988. the unit is worth $2. The average value of foreign source general limitation assets for 1988 is 90 units, which is worth $180.

(2) Approximate separate transactions method. In the case of a branch for which an election is effective under $ 1.985–2T to use the dollar approximate separate transactions method to compute currency gain or loss, the beginning-of-year dollar amount of the assets shall be determined by reference to the end-of-year balance sheet of the branch for the immediately preceding taxable year, adjusted for United States generally accepted accounting principles and United States tax accounting principles, and translated into U.S. dollars as provided in $ 1.9853T. The year-end dollar amount of the assets of the branch shall be determined in the same manner by reference to the end-of-year balance sheet for the current taxable year. The beginning-ofyear and end-of-year dollar tax book value of assets, as so determined, within each grouping must then be averaged as provided in paragraph (g)(2)(i) of this section.

(B) Fair market value method. In the case of taxpayers using the fair market value method of apportionment, the beginning-of-year and end-of-year fair market values of branch assets within

each grouping shall be computed in dollars and averaged as provided in this paragraph (g)(2).

(iii) Adjustment for directly allocated interest. Prior to averaging, the yearend value of any asset to which interest expense is directly allocated during the current taxable year under the rules of $ 1.861-10T (b) or (c) shall be reduced (but not below zero) by the percentage of the principal amount of indebtedness outstanding at year-end equal to the percentage of all interest on the debt for the taxable year that is directly allocated.

(iv) Assets in intercompany transactions. In the application of the asset method described in this paragraph (8), the tax book value of assets transferred between affiliated corporations in intercompany transactions shall be determined without regard to the gain or loss that is deferred under the regulations issued under section 1502.

(v) Erample. X is a domestic corporation that uses the fair market value method of apportionment. X is a calendar year taxpayer. X owns 25 percent of the stock of A, a noncontrolled section 902 corporation. At the end of 1987, the fair market value of X's assets by income grouping are as follows: Domestic......

..$1,000,000 Foreign general limitation

..500,000 Foreign passive.....

..500,000 Noncontrolled section 902 corporation

. 50,000 For its 1987 tax year, X apportions its interest expense by reference to the 1987 yearend values. In July of 1988, X sells a portion of its investment in A and in an asset acquisition purchases a shipping business, the assets of which generate exclusively foreign shipping income. At the end of 1988, the fair market values of X's assets by income grouping are as follows: Domestic

.$800,000 Foreign general limitation.

.900,000 Foreign passive....

.300,000 Noncontrolled section 902 corporation

40,000 Foreign shipping ....

..100,000 For its 1988 tax year, X shall apportion its interest expense by reference to the average of the 1988 beginning-of-year values (the 1987 year-end values) and the 1988 year-end values, assuming that the averaging of beginning-of-year and end-of-year values does not cause a substantial distortion of asset values. These averages are as follows: Domestic..

.$900,000 Foreign general limitation

..700,000 Foreign passive....

.400,000

Foreign shipping

..50,000 Noncontrolled section 902 corporation

45,000 (3) Characterization of assets. Assets are charactrized for purposes of this section according to the source and type of the income that they generate, have generated, or may reasonably be expected to generate. The physical location of assets is not relevant to this determination. Subject to the special rules of paragraph (h) concerning the application of the fair market value method of apportionment, the value of assets within each statutory grouping and the residual grouping at the beginning and end of each year shall be determined by dividing the taxpayer's assets into three types—

(i) Single category assets. Assets that generate income that is exclusively within a single statutory grouping or the residual grouping;

(ii) Multiple category assets. Assets that generate income within more than one grouping of income (statutory or residual); and

(iii) Assets without directly identifiable yield. Assets that produce no directly identifiable income yield or that contribute equally to the generation of all the income of the taxpayer (such as assets used in general and administrative functions). Single category assets are directly attributable to the relevant statutory or residual grouping of income. In order to attribute multiple category assets to the relevant groupings of income, the income yield of each such asset for the taxable year must be analyzed to determine the proportion of gross income generated by it within each relevant grouping. The value of each asset is then prorated among the relevant groupings of income according to their respective proportions of gross income. The value of each asset without directly identifiable income yield must be identified. However, because prorating the value of such assets cannot alter the ratio of assets within the various groupings of income (as determined by reference to the single and multiple category assets), they are not taken into account in determining that ratio. Special asset characterization rules that are set forth in $1.861-12T.

(3)

An example demonstrating the application of the asset method is set forth in $1.861-12T(d).

(h) The fair market value method. An affiliated group (as defined in $1.86111T(d)) or other taxpayer (the “taxpayer") that elects to use the fair market value method of apportionment shall value its assets according to the following methodology.

(1) Determination of values—(i) Valuation of group assets. The taxpayer shall first determine the aggregate value of the assets of the taxpayer on the last day of its taxable year without excluding the value of stock in foreign subsidiaries or any other asset. In the case of a publicly traded corporation, this determination shall be equal to the aggregate trading value of the taxpayer's stock traded on established securities markets at year-end increased by the taxpayer's year-end liabilities to unrelated persons and its pro rata share of year-end liabilities of all related persons owed to unrelated persons. In determining whether persons are related, $1.861-8T(c)(2) shall apply. In the case of a corporation that is not publicly traded, this determination shall be made by reference to the capitalization of corporate earnings, in accordance with the rules of Rev. Rul. 68-609. In either case, control premium shall not be taken into account.

(ii) Valuation of tangible assets. The taxpayer shall determine the value of all assets held by the taxpayer and its pro rata share of assets held by other related persons on the last day of its taxable year, excluding stock or indebtedness in such persons, any intangible property as defined in section 936(h)(3)(B), or goodwill or going concern value intangibles. Such valuations shall be made using generally accepted valuation techniques. For this purpose, assets may be combined into reasonable groupings. Statistical methods of valuation may only be used in connection with fungible property, such as commodities. The value of stock in any corporation that is not a related person shall be determined under the rules of paragraph (h)(1)(i) of this section, except that no liabilities shall be taken into account.

(iii) Computation of intangible asset value. The value of the intangible as

sets of the taxpayer and of intangible assets of all related persons attributable to the taxpayer's ownership in related persons is equal to the amount obtained by subtracting the amount determined under paragraph (h)(1)(ii) of this section from the amount determined under paragraph (h)(1)(i) of this section.

(2) Apportionment of intangible asset value. The value of the intangible assets determined under paragraph (h)(1)(iii) of this section is apportioned among the taxpayer and all related persons in proportion to the net income before interest expense of the taxpayer and the taxpayer's pro rata share of the net income before interest expense of each ralated person held by the taxpayer, excluding income that is passive under $1.904-4(b). For this purpose, net income is determined before reduction for income taxes. Net income of the taxpayer and of related persons shall be computed without regard to dividends or interest received from any person that is related to the taxpayer.

Characterization of affiliated group's portion of intangible asset value. The portion of the value of intangible assets of the taxpayer and related persons that is apportioned to the taxpayer under paragraph (h)(2) of this section is characterized on the basis of net income before interest expense, as determined under paragraph (h)(2) of this section, of the taxpayer within each statutory or residual grouping of income.

(4) Valuing stock in related persons held by the taxpayer. The value of stock in a related person held by the taxpayer equals the

of the following amounts reduced by the taxpayer's pro rata share of liabilities of such related person:

(i) The portion of the value of intangible assets of the taxpayer and related persons that is apportioned to such related person under paragraph (h)(2) of this section;

(ii) The taxpayer's pro rata share of tangible assets held by the related person (as determined under paragraph (h)(1)(ii) of this section); and

(iii) The total value of stock in all related person held by the related person as determined under this paragraph (h)(4).

sum

(5) (Reserved). For further guidance, see $ 1.861-9(h/5).

(6) Adjustments for apportioning related person expenses. For purposes of apportioning expenses of a related person, the value of stock in a second related person as otherwise determined under paragraph (h)(4) of this section (which is determined on the basis of the taxpayer's percentage ownership interest in the second related person) shall be increased to reflect the first related person's percentage ownership interest in the second related person to the extent it is larger.

Erample. Assume that a taxpayer owns 80 percent of CFC1, which owns 100 percent of CFC2. The value of CFC1 is determined generally under paragraph (h)(4) on the basis of the taxpayer's 80 percent indirect interest in CFC2. For purposes of apportioning expenses of CFC1, 100 percent of the stock of CFC1 must be taken into account. Therefore, the value of CFC2 stock in the hands of CFC1 shall equal the value of CFC2 stock in the hands of CFC1 as determined under paragraph (h)(4) of this section, increased by 25 percent of such amount to reflect the fact that CFCI owns 100 percent and not 80 percent of CFC2.

(i) (Reserved]

(j) Modified gross income method. Subject to rules set forth in paragraph (f)(3) of this section, the interest expense of a controlled foreign corporation may be allocated according to the following rules.

(1) Single-tier controlled foreign corporation. In the case of a controlled foreign corporation that does not hold stock in any lower-tier controlled foreign corporation, the interest expense of the controlled foreign corporation shall be apportioned based on its gross income.

(2) Multiple vertically owned controlled foreign corporations. In the case of a controlled foreign corporation that holds stock in any lower-tier controlled foreign corporation, the interest expense of that controlled foreign corporation and such upper-tier controlled foreign corporation shall be apportioned based on the following methodology:

(1) Step 1. Commencing with the lowest-tier controlled foreign corporation in the chain, allocate and apportion its interest expense based on its gross income as provided in paragraph (j)(1) of

this section, yielding gross income in each grouping net of interest expense.

(ii) Step 2. Moving to the next highertier controlled foreign corporation, combine the gross income of such corporation within each grouping with its pro rata share of the gross income net of interest expense of all lower-tier controlled foreign corporations held by such higher-tier corporation within the same grouping adjusted as follows:

(A) Exclude from the gross income of the upper-tier corporation any dividends or other payments received from the lower-tier corporation other than interest subject to look-through under section 904(d)(3); and

(B) Exclude from the gross income net of interest expense of any lowertier corporation any subpart F income (net of interest expense apportioned to such income). Then apportion the interest expense of the higher-tier controlled foreign corporation based on the adjusted combined gross income amounts. Repeat this step 2 for each next higher-tier controlled foreign corporation in the chain. For purposes of this paragraph (j)(2)(ii), pro rata share shall be determined under principles similar to section 951(a)(2). (T.D. 8228, 53 FR 35477, Sept. 14, 1988, as amended by T.D. 8257, 54 FR 31819, Aug. 2, 1989; T.D. 8597, 60 FR 36679, July 18, 1995; T.D. 8658, 61 FR 9329, Mar. 8, 1996; T.D. 8916, 66 FR 273, Jan. 3, 2001)

§ 1.861-10 Special allocations of inter

est expense. (a)(d) (Reserved]

(e) Treatment of certain related group indebtedness—(1) In general. If, for any taxable year beginning after December 31, 1991, a U.S. shareholder (as defined in paragraph (e)(5)(i) of this section) has both

(i) Excess related group indebtedness (as determined under Step One in paragraph (e)(2) of this section) and

(ii) Excess U.S. shareholder indebtedness (as determined under Step Two in paragraph (e)(3) of this section), the U.S. shareholder shall allocate, to its gross income in the various separate limitation categories described in

194-088 D-01--7

« iepriekšējāTurpināt »