The new US tax law's base erosion and anti-abuse minimum tax
(BEAT) will have a substantial impact on inbound taxpayers. The
BEAT provisions require an applicable taxpayer to pay a tax
equal to the base erosion minimum tax amount for the tax year.
The BEAT amount is the excess of 10% (5% for 2018) of the
taxpayer's modified taxable income (MTI) for the tax year over
an amount equal to its regular tax liability for that year
reduced by certain credits. The MTI is the taxpayer's taxable
income increased by its base erosion payments (BEPs).
A BEP is any amount accrued or paid by the taxpayer to a
foreign person that is a related party of the taxpayer
(determined by 25% affiliation) for which a deduction is
allowable (with reductions for amounts subject to gross-basis
withholding). The BEPs include deductions arising from
depreciable or amortisable assets acquired from such a related
foreign person. Exceptions apply for service payments charged
at cost with no markup.
The BEPs do not include payments that reduce gross receipts
(except for certain companies with respect to which section
7874 is implicated). Therefore, characterisation issues
– whether a payment reduces gross receipts or is a
payment that is 'deductible' from taxable income –
will become very important.
Note also that the BEAT rules would seem more likely to
apply to thin-margin taxpayers since a taxpayer with BEPs that
reduce its taxable income by more than 50% will be affected by
In addition, the BEAT rule can produce surprises with
respect to interest expense. Assume the US taxpayer has $100 of
income for Section 163(j) purposes and has $20 of interest
expense owed to both an unrelated bank and a foreign related
person. The taxpayer's interest expense deduction is limited to
$30. For BEAT purposes the disallowed interest expense is taken
from the $20 of the third-party (bank) interest expense. This
rule leaves the full $20 of related party interest expense
subject to the BEAT calculations.
Jim Fuller (email@example.com)
and David Forst (firstname.lastname@example.org)
Fenwick & West