Global Intangible Low Taxed Income (GILTI)
Global Intangible Low Taxed Income, or GILTI, was brought in as part of President Trump’s 2018 tax changes. Where previously, the Subpart F rules impacted CFCs with passive income, GILTI targets certain active trading companies as follows:
- Global: US tax rules apply to its citizens’ worldwide income and gains as well as reporting of their worldwide interests.
- Intangible: The target of these rules were foreign companies who derive profits from intangible assets. CFCs with tangible assets such as property and machinery would have a certain level of exclusion from GILTI based on the value of the assets. However, intangible assets include intellectual property and goodwill. Therefore, many businesses that rely on these, such as personal services, are affected by GILTI.
- Low-Taxed: For CFCs who pay high rates of Corporation Tax outside the US, these rules recognise that they should not be caught by GILTI. However, the calculation is complex and is sensitive to timing differences, book-to-tax adjustments and local tax breaks and rules.
- Income: If profits are GILTI, it is taxable income to the US owner of the CFC.
So, if you have a farm where you have barns, plant, and machinery you have a lot of tangible assets, the profit that your farm generates will broadly be associated to those assets and may be excluded from being GILTI.
However, if you are a consultant or an accountant then your CFC will not have many fixed assets. Therefore, an amount of your company profit will be GILTI.
US individual owners of CFCs are taxed on their share of GILTI at ordinary income tax rates. They are also unable to offset the tax on GILTI with personal foreign tax credits meaning that US owners suffer double tax on the profits of the CFC considered GILTI.
What should you do next?
There are certain elections and exceptions that can apply to help US taxpayers minimise their US tax exposure to GILTI.
Firstly, is the income ‘high taxed’? In general, is it taxed at higher than 90% of the US corporate tax rate? The current US corporate tax rate is 21%, so high taxed is 18.9%. If high taxed, then there is an exception for GILTI. With the UK corporate tax rate at 19%, factors such as foreign exchange, and UK to US book-to-tax differences will determine whether the UK corporate tax for a particular year is in excess of 18.9%. Changes to corporate tax rates both sides of the Atlantic may change this scenario.
Secondly, the US person can make a deemed corporation election. This calculates the US tax on GILTI using corporate rather than personal tax rules. This can help minimise or even eliminate the US tax on GILTI but will need to be considered as part of review of their US taxes and future plans.
With GILTI being calculated on an annual basis, the above may apply and disapply year to year. The impact of GILTI each year may also differ, particularly for companies with brought forward corporate losses. The GILTI tax rules are an area that the US have been looking to update and change. US taxpayers may need to consider whether a CFC is the right structure for their business or whether to seek alternatives to avoid GILTI entirely.
If you would like to discuss any of the above and how it relates to your business, please get in touch with your usual Blick Rothenberg contact or Alex or Michael using the form below.
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Personal tax is one of the most complex areas of wealth management and can significantly erode your wealth over time.
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