CFC Partners Required to Increase E&P for Subpart F Inclusions (Eaton Corporation and Subsidiaries, TC)

The upper-tier controlled foreign corporation (CFC) partners of a domestic partnership were required to include in gross income their distributive share of income inclusions under subpart F from lower-tier CFCs, and increase earnings and profits (E&P) by the same amount. Regulations under Code Sec. 964 provided preliminary steps for conforming a foreign corporation’s profit and loss statement to that of a domestic corporation. The general rules of Code Sec. 312 that governed earnings and profits computations of domestic corporations then applied.

Interaction Between Code Sec. 964 and Code Sec. 312

The rules in Code Sec. 964(a) provide that, with an exception for a depreciation rule in Code Sec. 312(k)(4), the earnings and profits of a foreign corporation are computed according to rules substantially similar to those applicable to domestic corporations, under regulations prescribed by the Secretary. The Tax Court found that regulations reasonably could be read to include regulations under Code Sec. 312.

The regulations under Code Sec. 964 required the following steps be taken before the rules of Code Sec. 312 could be applied:

– preparation a profit and loss statement;

– U.S. accounting adjustments; and

– tax adjustments.

The general rules of subpart F and Code Sec. 312 applied because there were no specific rules covering the treatment of a CFC’s distributive share of partnership income, or subpart F income inclusions, specifically. Subpart F required upper-tier CFC partners to compute gross income as if they were domestic corporations. As partners in a domestic partnership, they were required to include their distributive shares of the partnership’s income, including subpart F income inclusions, from lower-tier foreign corporations.

Under the Code Sec. 312 regulations, E&P is determined by taking into account all items includible in gross income under Code Sec. 61. Because the inclusions under subpart F were included in gross income, E&P was increased by those amounts.

Dissenting Opinion

A dissenting opinion disagreed with the Tax Court’s conclusion that Code Sec. 964 incorporated the rules of Code Sec. 312 based on the reference to the depreciation rule. The dissenting opinion also disagreed with the Tax Court’s statement that Code Sec. 964 provided that the same general rules apply to E&P computations for domestic and foreign corporations because the statute referred to rules “substantially similar” to those applicable to domestic corporations.

Eaton Corporation and Subsidiaries, Dec. 61,413

Other References:

Code Sec. 964

CCH Reference – 2019FED ¶28,718.15

Tax Research Consultant

CCH Reference – TRC INTLOUT: 9,302

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AUTHOR

CCHTaxGroup

All stories by: CCHTaxGroup